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05/06/94 CRAGIN FEDERAL BANK FOR SAVINGS v.

May 6, 1994

CRAGIN FEDERAL BANK FOR SAVINGS, PLAINTIFF-APPELLEE,
v.
AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO, AS T/U/T AGREEMENT DATED AUGUST 11, 1989 AND KNOWN AS TRUST NO. 109336-04, ET AL., DEFENDANTS (STEVEN C. HERMAN AND JEANNE E. HERMAN, DEFENDANTS-APPELLANTS).



Appeal from the Circuit Court of Lake County. No. 91-CH-909. Honorable John G. Radosevich, Judge, Presiding.

Rehearing Denied June 9, 1994.

PECCARELLI, Quetsch, Colwell

The opinion of the court was delivered by: PECCARELLI

JUSTICE PECCARELLI delivered the opinion of the court:

Defendants Steven and Jeanne Herman appeal the trial court's refusal to vacate an order confirming the sale of certain property to plaintiff, Cragin Federal Bank for Savings (Bank), after the Bank foreclosed the mortgage on the property. The Hermans claim that the sale unfairly left them liable for an excessive deficiency because (1) the Bank failed to publish adequate notice of the sheriff's sale pursuant to section 15-1507(c)(2) of the Illinois Mortgage Foreclosure Law (Foreclosure Law) (735 ILCS 5/15-1507(c)(2) (West 1992)) and (2) the Bank's bid for the property was substantially less than the value of the property.

On December 18, 1991, the Bank filed a complaint against defendants to foreclose a mortgage on certain property in Lake Forest. The Bank claimed that defendants owed $1,133,636.98, with interest continuing to accrue. On May 18, 1992, the trial court entered a judgment of foreclosure and sale. This judgment reflected that defendants were indebted to the Bank in the amount of $1,251,795.48. The validity of this judgment is not in dispute.

Defendants failed to redeem the property pursuant to section 15-1603 of the Foreclosure Law (735 ILCS 5/15-1603 (West 1992)). On August 31, 1992, the Bank filed a notice of sale along with a sheriff's report of sale and distribution reflecting that the Bank successfully bid $950,000 for the property. The Bank attached certificates of publication by William Schroeder of the Vernon Hills News who attested that the notices of the sale of the property were published in the Vernon Hills News for three consecutive weeks from August 7, 1992, to August 21, 1992. The trial court confirmed the sale and entered an judgment against the Hermans for a $337,738.90 deficiency.

On September 30, 1992, the Hermans filed a motion to vacate the confirmation of sale. The Hermans alleged that the notice of sale violated section 15-1507(c) of the Foreclosure Law because it failed to state the case title, case number, and the court in which the foreclosure was filed. They also claimed that "the terms of the sale were unconscionable and Justice was otherwise not done" because the Bank published notice in the Vernon Hills News, which, according to the Hermans, does not serve the community of Lake Forest. The Hermans further claimed that the Bank's appraisal of the property was improperly low.

In response, the Bank attached an appraisal which valued the property at $950,000. It also attached the affidavit of William Schroeder, an employee of Lakeland Publishers, which published the notices. Schroeder stated that the legal notice appeared in the Vernon Hills News which had a circulation of 1,945. The notice also appeared in the real estate section of 13 papers in Lake County including Antioch, Lake Villa, Vernon Hills, Mundelein, Lindenhurst, Wauconda, Lake Zurich, Warren, Libertyville, Newport, North Chicago, Fox Lake, Round Lake and Grayslake, with a total circulation of 40,654.

The Hermans filed a reply which stated that the notice did not appear in the legal notice and real estate sections of the newspaperfor three consecutive weeks as required by section 15-1507(c)(2). They attached a copy of the August 21, 1992, real estate section of "Lakeland Newspapers." No notice of the sale of the property in question appears in this attached newspaper. The Hermans also included the testimony of Byron Himelich, who valued the property at $1,235,000. Himelich was a real estate agent who averaged $15 million to $33 million in sales per year, 85% to 90% of which were in Lake Forest. Himelich testified that he was familiar with property values in the area and often gave advice to appraisers, but was not an expert appraiser.

The trial court denied the Hermans' motion to vacate the confirmation of sale. The trial court found that "there [was] no evidence or showing by movant or in the record of any ulterior motive, bad faith or fraud of Cragin to maximize the deficiency at sheriff's sale [sic] or otherwise prevent or inhibit the proper conduct of said sale." The Hermans filed a timely notice of appeal.

On appeal the Hermans argue that the trial court erred in failing to vacate the confirmation of sale because the Bank did not adequately advertise the sale of the property to potentially interested buyers. In particular, the Bank did not advertise the sale in a publication that serves Lake Forest and did not advertise the property for three consecutive weeks. The Hermans further argue that the Bank was therefore able to obtain the property for far less than its value, thereby leaving the Hermans with an excessive deficiency. The Hermans concede that the failure of the Bank to include in the published notices the case title, case number, and court in which action was filed were immaterial errors which did not, in themselves, invalidate the sale. See 735 ILCS 5/15-1507(c)(1) (West 1992).

Whether to grant a motion to vacate a judgment rests within the sound discretion of the trial court. ( Espedido v. St. Joseph Hospital (1988), 172 Ill. App. 3d 460, 467, 122 Ill. Dec. 405, 526 N.E.2d 664; 735 ILCS 5/2-1301(e) (West 1992).) We will not disturb a trial court's denial of a motion to vacate a judgment unless the trial court has abused its discretion or there has been a denial of substantial Justice to the ...


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