Appeal from the Circuit Court of Cook County. Honorable John N. Hourihane, Judge Presiding.
Released for Publication April 24, 1997.
The Honorable Justice Gordon delivered the opinion of the court. Cousins, Jr., P.j. and McNULTY, J., concur.
The opinion of the court was delivered by: Gordon
JUSTICE GORDON delivered the opinion of the court:
This is an appeal from a trial court order vacating the mortgage foreclosure sale of certain property to intervenor-appellant REM Properties, Inc. (REM). The facts are undisputed. Plaintiff-appellee Fleet Mortgage Corporation, the mortgagee, filed a complaint seeking to foreclose a mortgage executed by defendants James and Annie Deale, the mortgagors, alleging that the Deales defaulted on their mortgage installment payments. On November 17, 1994, the trial court entered a judgment of foreclosure by default against the Deales. That order expressly provided that the right of the Deales to redeem the judgment amount would expire on March 27, 1995. A mortgage foreclosure sale was then scheduled for March 28, 1995.
On March 24, 1995, prior to the foreclosure sale, the Deales sold the subject property for the sum of $35,000 to third-party purchasers William Mable, Jr., and Emma Lee Cashaw. On March 27, 1995, on the last day of the redemption period, the Deales tendered to Fleet the total amount of the mortgage foreclosure judgment, which Fleet accepted in full payment. No prior notice of the Deales' intention to redeem was served upon the mortgagee as required by statute. See section 15-1603(e) of the Illinois Mortgage Foreclosure Law (the Act), 735 ILCS 5/15-1101 et seq. (West 1994) (set forth and discussed more fully below).
Notwithstanding its acceptance of the redemption payment from the mortgagors, Fleet failed to cancel the mortgage foreclosure sale scheduled for the next day. As a result, the foreclosure sale proceeded as scheduled on March 28, 1995. At that sale, Fleet bid the outstanding balance on the mortgage owed by the Deales, $18,993.90, an amount including statutory fees and costs. Intervenor-appellant REM Properties bid one dollar more, $18,994.90, and was declared the highest bidder. REM accordingly tendered its payment for the property and received a Receipt of Sale and a Certificate of Sale verifying its purchase. On April 20, 1995, Fleet filed a motion to vacate the foreclosure sale to REM, and in opposition, REM filed a petition to intervene and to confirm that sale pursuant to section 5/1508(b) of the Mortgage Foreclosure Law. 735 ILCS 5/1508(b) (West 1994) (set forth and discussed below).
Thereafter, on May 24, 1995, the trial court sustained Fleet's motion to vacate the foreclosure sale and, while granting REM leave to intervene, denied REM's petition to confirm the sale, stating as follows:
"Here it would be unfair and inequitable to let the sale stand. Although the Defendants did not properly notify the parties of their redemption, they did tender the funds to the Plaintiff, which were accepted on the last day of redemption. As such, it should be noted that equity abhors a forfeiture. We would be allowing the technicality by virtue of the failure to comply with the strict rules of redemption to bar these parties from their rightful interest in this property. Therefore, the sale should be vacated and the motion to confirm the sale will be denied."
REM now appeals from that order. For the reasons which follow, we affirm.
The pertinent provisions of the Illinois Mortgage Foreclosure Law are as follows. With respect to the notice required of the Deales to be given to Fleet, the Act provides as follows:
"(e) Notice of Intent to Redeem. An owner of redemption who intends to redeem shall give written notice of such intent to redeem to the mortgagee's attorney of record specifying the date designated for redemption and the current address of the owner of redemption for purposes of receiving notice. Such owner of redemption shall file with the clerk of the court a certification of the giving of such notice. The notice of intent to redeem must be received by the ...