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10/31/97 MERCHANTS BANK v. WILLIAM GUY ROBERTS

October 31, 1997

MERCHANTS BANK, AS ASSIGNEE OF GREAT NORTHERN MORTGAGE, PLAINTIFF-APPELLEE,
v.
WILLIAM GUY ROBERTS, JR., JOY M. ROBERTS, MERCHANTS NATIONAL BANK, AS TRUSTEE OF TRUST NO. 2882 AND BENEFICIARIES THEREUNDER, DEFENDANTS-APPELLANTS (AMERICAN GENERAL FINANCE, INC., HINCKLEY STATE BANK, UNKNOWN OWNERS, NONRECORD CLAIMANTS, AND WILLIAM MILLER, DEFENDANTS).



Appeal from the Circuit Court of Kane County. No. 96--CH--193. Honorable Melvin E. Dunn, Judge, Presiding.

Released for Publication December 4, 1997.

The Honorable Justice Rathje delivered the opinion of the court. Doyle and Thomas, JJ., concur.

The opinion of the court was delivered by: Rathje

The Honorable Justice RATHJE delivered the opinion of the court:

On April 4, 1996, the plaintiff, Merchants Bank, filed a mortgage foreclosure action naming as defendants, William Guy Roberts, Jr., Joy M. Roberts, his wife, and Merchants National Bank, as trustee of trust No. 2882. Additional defendants are not parties to this appeal. The above-named defendants were defaulted, and, on July 19, 1996, the trial court entered a judgment of foreclosure. The order provided that the last day to redeem the property was November 4, 1996. Thereafter, on November 22, 1996, the property was sold at a sheriff's sale. At the December 6, 1996, hearing to confirm the sale, an attorney for William Guy Roberts, Jr., appeared seeking a continuance of the confirmation hearing. The motion for continuance was denied.

Thereafter, on January 3, 1997, new counsel, representing William Guy Roberts, Jr., Joy M. Roberts, and trust No. 2882, appeared and presented an emergency motion to reconsider the order denying the motion to continue and/or motion to vacate the order confirming the sale. The motion for reconsideration was accompanied by exhibits, affidavits of the defendants, and a memorandum of law. The plaintiff filed a motion to strike the emergency motion. William Miller, the buyer of the defendants' property at the sheriff's sale, filed a motion to strike the appearances of Joy M. Roberts and trust No. 2882. Following a hearing on January 10, 1997, the trial court granted Miller's motion to strike the appearances of Joy M. Roberts and trust No. 2882 and denied the emergency motion for reconsideration and/or to vacate the confirmation of sale. This appeal followed.

On appeal, the defendants raise the following issues: (1) whether the trial court erred in denying William Guy Roberts, Jr.'s, motion to continue the confirmation of sale hearing; and (2) whether the trial court erred in denying the defendants' emergency motion for reconsideration and/or motion to vacate.

A litigant has no absolute right to have a case continued. Sinram v. Nolan, 227 Ill. App. 3d 241, 243, 169 Ill. Dec. 248, 591 N.E.2d 128 (1992). A decisive factor is whether the party asking for the continuance has shown diligence in proceeding with the cause. Sinram, 227 Ill. App. 3d at 243. The trial court has broad discretion in ruling on motions for continuance but that discretion must not be exercised arbitrarily. Sinram, 227 Ill. App. 3d at 243. A reviewing court must balance the prompt disposition of the case with the equally compelling interest in obtaining justice to determine whether an abuse of discretion occurred. O'Neill v. Brown, 242 Ill. App. 3d 334, 343, 182 Ill. Dec. 301, 609 N.E.2d 835 (1993). The granting or denying of a motion for continuance will not be disturbed on appeal unless there has been a manifest abuse of discretion or a palpable injustice. Maslanka v. Blanchett, 239 Ill. App. 3d 548, 553, 179 Ill. Dec. 103, 605 N.E.2d 1117 (1992).

Section 15--1508(b) of the Code of Civil Procedure (735 ILCS 5/15--1508(b) (West 1996)) provides that the trial court shall conduct a hearing to confirm the sheriff's sale of a foreclosed property and shall enter an order confirming the sale unless it finds that "(i) a notice required in accordance with subsection (c) of Section 15--1507 was not given, (ii) the terms of sale were unconscionable, (iii) the sale was conducted fraudulently or (iv) that justice was otherwise not done." 735 ILCS 5/15--1508(b) (West 1996).

In his motion for continuance, William Guy Roberts, Jr., alleged specifically that the purchase price from the sheriff's sale was inadequate; that the parcels sold at the sheriff's sale should not have been encumbered by the mortgage and therefore should not have been sold at the sale; and that justice and equity required that the sale should be set aside. Mr. Roberts, Jr., further alleged that, subsequent to the sale, his prior counsel had informed him that he was unable to represent Mr. Roberts, Jr., due to a conflict of interest and that, as a result, Mr. Roberts, Jr., had to obtain new counsel.

In his brief, Mr. Roberts, Jr., asserts that the purpose of seeking the continuance was to permit his new counsel time to present a written motion to void or otherwise set aside the sale.

The record before us establishes that Mr. Roberts, Jr., failed to exercise diligence in seeking to challenge the confirmation of the sheriff's sale in this case. The foreclosure suit in this case was filed on April 4, 1996, and the judgment of foreclosure was entered on July 19, 1996. At that point, Mr. Roberts, Jr., was, or should have been, aware via the notices he received of the identity of the parcels that were foreclosed upon. However, he was still not prepared to challenge that alleged mistake some five months later. Although the sheriff's sale was held November 22, 1996, some 14 days prior to the confirmation hearing, Mr. Roberts, Jr., failed to establish in his motion why he was not prepared on the day of the confirmation hearing to challenge the sale price as inadequate. Finally, it is left to the reader's imagination as to why justice and equity require that the sale be set aside.

Finally, Mr. Roberts, Jr.'s, need to obtain new counsel to present the motion for continuance appears not to be the cause of his lack of diligence but rather a product of Mr. Roberts Jr.'s, own "foot dragging" where this case is concerned. The allegation regarding the wrong parcels being encumbered by the mortgage should have been known to Mr. Roberts, Jr., at the very least as of July 19, 1996, the day the trial court entered the judgment of foreclosure.

We conclude therefore that the trial court did not err in denying a continuance of the hearing on the ...


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