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02/15/89 First Bank of Oak Park, v. George Rezek Et Al.

February 15, 1989

FIRST BANK OF OAK PARK, PLAINTIFF-RESPONDENT

v.

GEORGE REZEK ET AL., DEFENDANTS AND PETITIONERS-APPELLANTS (AMERICAN NATIONAL BANK, TRUSTEE, INTERVENOR AND, RESPONDENT-APPELLEE)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

535 N.E.2d 20, 179 Ill. App. 3d 956, 128 Ill. Dec. 806 1989.IL.186

Appeal from the Circuit Court of Cook County; the Hon. Albert Green, Judge, presiding.

APPELLATE Judges:

JUSTICE McNAMARA delivered the opinion of the court. RIZZI and WHITE, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCNAMARA

Defendant, George Rezek, appeals from an order of the trial court denying his motion to reconsider its denial of his motion to vacate the judgment of foreclosure and sale, and its approval of the petition for a writ of assistance, filed by intervenor, American National Bank, trustee under trust Nos. 104525 -- 06 and 104541 -- 06. Defendant contends the judgment should be vacated because it improperly was corrected and amended by a nunc pro tunc order. Defendant maintains that the trial court lacked jurisdiction to enter the nunc pro tunc order.

The facts are as follows. On August 7, 1986, plaintiff, the First Bank of Oak Park, filed an action to foreclose a trust deed upon five parcels of real estate. Defendant was the beneficial owner of one of the parcels of real estate. Defendant filed an appearance, but failed to file an answer to the complaint. On April 22, 1987, the court entered an order of default as to defendant and entered a judgment of foreclosure and sale as to the real estate.

On May 27, 1987, plaintiff served defendant by mail with notice of a June 5, 1987, hearing to correct clerical errors in the record and to amend nunc pro tunc the judgment of foreclosure and sale. At the hearing, plaintiff sought to delete parcels one and three from the judgment of foreclosure because it previously had nonsuited its action on those parcels. Plaintiff further sought to correct typographical errors in a document number and in two of the legal descriptions. The court ordered that the record be corrected and that the judgment of foreclosure and sale be amended nunc pro tunc, as requested by plaintiff.

The sheriff of Cook County subsequently held a sheriff's sale upon the amended judgment. Plaintiff's bid was accepted, as approved and confirmed by subsequent order. Plaintiff assigned its rights in the certificate of sale to intervenor. No redemption was made from the sheriff's sale, and on January 29, 1988, a sheriff's deed was issued to intervenor.

On February 5, 1988, defendant filed a motion to vacate the judgment of foreclosure and sale. Defendant alleged that the court lacked jurisdiction to enter its June 5, 1987, nunc pro tunc order. Defendant noted that the judgment of foreclosure was final and that the motion to amend was filed more than 30 days after its entry. Defendant contended that under those circumstances, plaintiff was required to bring his motion to amend pursuant to section 2-1401 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-1401). Defendant further contended that according to Supreme Court Rule 106 (107 Ill. 2d R. 106), plaintiff was required to give notice of the section 2-1401 motion by methods prescribed in Supreme Court Rule 105 (107 Ill. 2d R. 105). It is agreed that while plaintiff did give defendant notice of the motion, it did not do so by one of the methods found in Rule 105.

On February 8, 1988, intervenor filed a petition for a writ of assistance, requesting that defendant be ordered to surrender possession of the property and that defendant and all other tenants be required to pay rentals to intervenor. On April 18, 1988, the court denied defendant's motion to vacate and granted intervenor's petition for a writ of assistance. Defendant filed a motion to reconsider the April 18, 1988, orders, and on May 24, 1988, the court denied this motion.

On appeal, defendant contends that the denial of the motion to reconsider was improper. He maintains that the trial court lacked jurisdiction to correct clerical errors in the record and to amend the judgment of foreclosure. He alleges that the post-judgment relief pursuant to the nunc pro tunc order was improper because post-30-day relief should have been sought under section 2 -- 1401 of the Code of Civil Procedure and in compliance with Supreme Court Rules 105 and 106. Defendant concludes that absent proceedings pursuant to section 2 -- 1401 and the applicable supreme court rules, the trial court could not have jurisdiction in a post-30-day relief situation.

Initially we note that relief from final orders and judgments after 30 days from entry thereof may be provided in ways other than that provided by section 2 -- 1401. Post-30-day relief properly may be granted as follows: by application of the revestment doctrine; by a finding that the final order or judgment is void; by agreement of the parties; or by a nunc pro tunc order. (King v. King (1985), 130 Ill. App. 3d 642, 474 N.E.2d 834.) Thus, we disagree with defendant's contention that the trial court only could have granted post-30-day relief through a section 2 -- 1401 petition.

Moreover, we do not believe that a section 2 -- 1401 petition would have been appropriate here. Rather, we find that the trial court properly used its authority to issue a nunc pro tunc order to ensure that the ...


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