DIJ Mortgage Capital, Inc. v. Penny

2022 IL App (1st) 211617-UFOURTH DIVISION
Order filed: December 15, 2022
No. 1-21-1617
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
DLJ MORTGAGE CAPITAL, INC., ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 14 CH 11515
)
MYRA PENNY, ) Honorable
) William B. Sullivan,
Defendant-Appellant. ) Judge, presiding.
JUSTICE HOFFMAN delivered the judgment of the court.
Presiding Justice Lampkin and Justice Rochford concur in the judgment.
ORDER
¶1 Held: Appellant failed to demonstrate that the circuit court applied the incorrect standard
when ruling on a motion for reconsideration when the record contained numerous
examples of the court’s use of the correct standard, and the circuit court was
justified in disregarding an affidavit filed in support of the motion for
reconsideration when the statements contained in the affidavit consisted of
unsubstantiated allegations and non-professional legal opinions.
No. 1-21-1617
¶2 Appellant Myra Penny appeals a final judgment of foreclosure and a subsequent order
confirming a foreclosure sale. Penny contends that the circuit court erred in denying her motion to
reconsider the court’s order granting summary judgment in favor of appellee DLJ Mortgage
Capital, LLC (“DLJ”). We see no merit to Penny’s arguments on appeal and affirm the circuit
court’s orders.
¶3 In 2000, Penny obtained a home loan secured by a mortgage in favor of CIT
Group/Consumer Finance, Inc. (“CIT”). In 2014, DLJ filed a complaint seeking to foreclose on
the mortgage. DLJ attached to the complaint several allonges demonstrating that CIT had assigned
its interest in the mortgage to Aurora Loan Services, LLC, which in turn assigned its interest to
U.S. Bank National Association, as Trustee on behalf of SASCO Mortgage Loan Trust 2007-RNP1
(“SASCO Trust”), which had then assigned its interest to DLJ.
¶4 Penny answered the complaint and asserted as an affirmative defense that DLJ had not
demonstrated standing to foreclose. DLJ replied and moved for summary judgment on December
19, 2017. The court granted Penny until February 20, 2018, to file a response to the motion for
summary judgment and, because she was acting pro se at the time, the court also referred Penny
to the Daley Center’s Resource Center for People Without Lawyers. On March 21, an attorney
entered his appearance on Penny’s behalf, stating that Penny had retained him to represent her on
either March 12 or 13. Counsel requested an extension of time to respond to the motion for
summary judgment, but the court did not grant counsel that opportunity. Instead, on March 21 the
court granted DLJ’s motion for summary judgment, entered a judgment of foreclosure, and ordered
the sale of Penny’s property.
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No. 1-21-1617
¶5 On April 20, Penny filed a motion seeking reconsideration of the court’s March 21 orders.
Penny’s two-paragraph motion did not assert any particular basis for reconsideration but rather
asked for additional time to attach a supporting memorandum or affidavit and to conduct
discovery. On May 16, Penny filed an affidavit from Joseph R. Esquivel, Jr., a private investigator
from Texas. The affidavit contained statements regarding the chain of ownership of the mortgage
at issue, which Esquivel stated were derived from the face of the mortgage and a search of the
Cook County public records. The most notable of these statements was Esquivel’s assertion that
“[t]he SASCO Mortgage Loan Trust 2007-RNP1 was terminated on May 10, 2013,” two months
prior to Aurora’s assignment of the mortgage to the SASCO Trust and the SASCO Trust’s
assignment of the mortgage to DLJ.
¶6 The circuit court held a hearing on Penny’s motion at which the court heard argument from
the parties. At the hearing, Penny’s counsel clarified that Penny was seeking reconsideration based
on newly discovered evidence allegedly suggesting that the foreclosure judgment had been
obtained by fraud. Specifically, counsel argued that Esquivel’s assertion regarding the termination
of the SASCO Trust constituted newly discovered evidence that DLJ lacked standing to foreclose
because the SASCO Trust was not in existence at the time that it allegedly obtained and then
transferred its interest in the mortgage.
¶7 At the conclusion of the hearing, the court denied Penny’s motion for reconsideration. The
court found Esquivel’s affidavit to not be credible and the court did not consider it because it
consisted of legal conclusions beyond Esquivel’s expertise as a private investigator. The court also
stated that “there is no credible proof that there is an actual fraud perpetrated on the court that
would justify myself at this juncture to enter an order sua sponte, nunc pro tunc, vacating the
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No. 1-21-1617
motion for summary judgment.” In November 2021, the circuit court approved the sale of Penny’s
home, and this appeal follows.
¶8 Penny raises two arguments on appeal. First, she asserts that the circuit court applied the
wrong standard when ruling on the motion for reconsideration, as evidenced by its statement that
there was no basis for a “sua sponte” vacation of the summary judgment. Second, Penny argues
that the court erred when it disregarded Esquivel’s affidavit on the basis that it contained non-
professional legal opinions rather than statements of fact. We see no merit to either argument.
¶9 First, despite the court’s usage of the phrase “sua sponte” in announcing its ruling, it is
clear from the entirety of the hearing on Penny’s motion for reconsideration that the circuit court
applied the correct standard and understood that the matter was before the court on a party’s motion
rather than the court’s. To begin, the court opened the hearing by announcing that the parties were
present for “Myra Penny’s motion to reconsider orders entered March 21, 2018.” The court also
noted that it had reviewed the motion and asked if there was anything Penny wanted to add to the
motion. Further, during the hearing the court engaged with Penny’s counsel regarding Penny’s
burden of proof on a motion to reconsider, and throughout the hearing the court and the parties
applied the correct standard for a motion to reconsider filed under section 2-1203 of the Code of
Civil Procedure (735 ILCS 5/2-1203 (West 2018)), specifically, whether newly discovered
evidence that was not previously available warrants modification or vacation of the judgment (see
Hachem v. Chicago Title Insurance Co., 2015 IL App (1st) 143188, ¶ 34). Thus, when looking at
the entirety of the hearing, it is clear that the court here applied the correct standard and did not
view this as a sua sponte matter. Therefore, Penny’s first argument is without merit.
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No. 1-21-1617
¶ 10 Second, Penny asserts that the circuit court erred when it refused to consider Esquivel’s
affidavit on the basis that it consisted of legal opinions from a non-lawyer. Penny maintains that
the affidavit contained factual allegations that the court should have considered, principally the
allegation that the SASCO Trust had been terminated prior to its supposed acquisition and
subsequent dispossession of the mortgage at issue. However, “[t]he submission of a new matter on
*** a motion [for reconsideration] after a motion for summary judgment has been granted lies in
the discretion of the trial court” (Delgatto v. Brandon Associates, Ltd., 131 Ill. 2d 183, 195 (1989)),
and “a trial court is not necessarily obliged to consider new evidence after ruling on a summary
judgment motion” (Buffa v. Haideri, 362 Ill. App. 3d 532, 538 (2005)). This is particularly true
when the party presenting the new evidence has not shown why the material was not offered
earlier. See Gardner v. Navistar International Transportation Corp., 213 Ill. App. 3d 242, 248
(1991) (holding that the circuit court was justified in disregarding an affidavit purportedly
containing newly discovered evidence when the party offering the evidence had not shown why
the evidence was not presented prior to the court’s summary judgment ruling).
¶ 11 Esquivel’s affidavit as it appears in the certified record did indeed contain numerous legal
opinions and did not contain any explanation regarding the basis for Esquivel’s assertion that the
SASCO Trust had been “terminated” in May 2010. Consequently, the affidavit did not establish
why the information could not have been obtained earlier or why the assertion was reliable. Rather,
as it appears in the affidavit, Esquivel’s allegation of the SASCO Trust’s termination was merely
a conclusory statement situated amongst a litany of non-professional legal opinions. Consequently,
the affidavit failed to demonstrate the existence of newly discovered evidence warranting vacation
of the judgment, and the circuit court was justified in its decision to disregard the affidavit. At the
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No. 1-21-1617
very least, Penny has failed to demonstrate that the court’s decision was so arbitrary and
unreasonable as to amount to an abuse of discretion.
¶ 12 Accordingly, we affirm the summary judgment, the denial of the motion for
reconsideration, and the confirmation of sale.
¶ 13 Affirmed.
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