APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. No. 95 CH 1969. THE HONORABLE MARGARET S. MCBRIDE, JUDGE PRESIDING.
Presiding Justice Cousins delivered the opinion of the court. Gordon and Leavitt, JJ., concur.
The opinion of the court was delivered by: Cousins
PRESIDING JUSTICE COUSINS delivered the opinion of the court:
This is an appeal from the trial courts denial of a petition to confirm the report of sale and distribution of certain property to appellants Paul B. Javaras and Hema K. Prasad, who were the high bidders of the property at a mortgage foreclosure sale. The property had been foreclosed by plaintiff, Commercial Credit Loans, Inc. (Commercial), after mortgagee, Maria Espinoza, defaulted on the mortgage. On appeal, appellants contend that: (1) the trial court erred in finding that confirmation of the sale would be an "unjust result" based on Espinoza's alleged attempts to redeem on the date of the sale; (2) the trial court erred in finding that confirmation of the sale would be "unconscionable" based on the sum bid at the sale and the evidence presented at the confirmation hearing; (3) the trial court erred in ordering the plaintiff to accept redemption from Espinoza; and (4) the trial court erred in prejudging the position of the parties and matters at issue prior to hearing all of the evidence and argument, thereby prejudicing appellants.
On March 3, 1995, Commercial filed a complaint seeking to foreclose a mortgage executed by defendant, Maria Espinoza, alleging that Espinoza defaulted on her mortgage payments. On June 5, 1995, the trial court entered a judgment of foreclosure by default in the amount of $9,112.53. The order provided that Espinozas right to redeem the judgment amount would expire on November 5, 1995. Espinoza was not personally served, and the order of default was entered against her by way of publication service in the Chicago Daily Law Bulletin. The mortgage foreclosure sale was scheduled for November 7, 1995, at which appellants were the successful bidders with a bid of $10,800.
Joined by appellants, Commercial filed a notice of sale and a motion to confirm the report of the sale. On November 21, 1995, Espinoza filed an objection to the approval of the sale in which she argued that she had appeared at the foreclosure sale with a certified check in the amount of the foreclosure judgment, but that she did not discover that she would need more than the judgment amount because she does not speak English very well. Espinoza also stated that she had called several people listed on the notice of sale to try and verify the amount that she would need to bring to the foreclosure sale.
At the hearing on the motions, an appraiser testified that the value of the property at issue was $69,000 at the time of the hearing. Further evidence presented at the hearing indicated that, on two separate occasions, Espinoza called the law firm that handled the foreclosure sale for Commercial and told a Spanish-speaking collection manager, Sergio Magana, that she was getting the money together to pay for the property. At the hearing, Magana testified that, when Espinoza called him, he told her to call back when she had the money. Espinoza called Magana a third time on the date of the sale. Magana testified that he put Espinoza on hold and told an attorney in the office that Espinoza was on the phone, had the money and wanted to pay. The attorney instructed Magana to tell Espinoza that her period of redemption was already past due. Magana testified that when he returned to the phone, Espinoza had already hung up. Magana also stated that he never told Espinoza the amount that she would need to claim her property. On cross-examination, Magana stated that he did not tell Espinoza where and when the sale would be held. However, in an affidavit dated February 15, 1996, Magana stated that he had told Espinoza when and where the sale would be held. Espinoza also testified at the hearing. A transcript of her testimony was not included in the record on appeal. However, in her affidavit dated January 30, 1996, Espinoza states that she learned about the foreclosure sale when she received a notice of sale. One week prior to the date of the sale and three days prior to the date of the sale, Espinoza called the number listed on the notice for in order to get information about the sale. Espinoza further states that she spoke to a Spanish-speaking male employee, Mr. Cortez, *fn1 and informed him that she had $9,112.53, and wanted to know what to do with it. Cortez told her to bring the money in cash to his office and she would be able to save her house. Espinoza told Cortez that she would call him back. After speaking to some of her friends, she decided to purchase a cashier's check instead. Espinoza further states in her affidavit that she spoke to Cortez four more times during the week. He told her that if she wanted to pay with a cashier's check she would have to bring it to the sale. Espinoza further states that she brought a cashier's check of $9,112.53 to the foreclosure sale at approximately 10 a.m. At the sale, she spoke to a woman and showed her the certified check. However, the woman told her that it was too late and that she should go to the offices of Harris & Harris, which is Commercials law firm. Espinoza arrived at the law firm at approximately 10:30 a.m. There she was told that Cortez was not in the office and that she should go to Commercials offices. Espinoza went to Commercials offices and was told that her house had already been sold.
The trial court denied confirmation of the sale pursuant to section 15--1508(b) of the Illinois Mortgage Foreclosure Law (735 ILCS 5/15--1508(b) (West 1992)) and ordered that Commercial accept redemption from Espinoza. The trial court found that the terms of the sale were unconscionable because the value of the property was six times more than what was bid at the sale. The trial court further found that Espinoza told Commercial that she had the money and asked for directions on how to get the money to them, but she was "shrugged off because of her inability to communicate effectively with Commercial." Thus, the trial court concluded that justice would not otherwise be done were Espinoza to lose her home because of what the trial court considered to be unfair tactics. Third-party bidders Javaras and Prasad appealed.
Appellants first contend that the trial court erred in finding that confirmation of the sale would be an "unjust result" based on defendants alleged attempts to redeem on the date of sale. Appellants also argue that Espinoza acted negligently and untimely in asserting her statutory right to redeem. Appellants further argue that the statutory right to redeem must be strictly construed and that allowing Espinoza to redeem after she failed to comply with the redemption statute undermines the legislature's intent to promote the integrity of judicial sales. Espinoza responds that the trial court properly found that she was not negligent, that Commercial employed unfair tactics and that confirmation of the sale would result in an injustice.
It is well settled in Illinois law that a judicial foreclosure sale is not complete until it has been approved by the trial court. Fleet Mortgage Corp. v. Deale, 287 Ill. App. 3d 385, 388, 678 N.E.2d 35, 222 Ill. Dec. 628 (1997); Grubert v. Cosmopolitan National Bank, 269 Ill. App. 3d 408, 411, 645 N.E.2d 560, 206 Ill. Dec. 555 (1995). The high bid received at a judicial sale is merely an irrevocable offer to purchase the property, and acceptance of the offer takes place when the trial court confirms the sale. Citicorp Savings v. First Chicago Trust Co., 269 Ill. App. 3d 293, 645 N.E.2d 1038, 206 Ill. Dec. 786 (1995). Under section 15--1508(b) of the Illinois Mortgage Foreclosure Law (735 ICLS 5/15--1508(b) (West 1992)) (Act), the trial court shall confirm a foreclosure unless: (1) there has been a failure to give proper notice; (2) the terms of sale were unconscionable; (3) the sale was conducted fraudulently; or (4) justice was otherwise not done. A court is justified in disapproving a judicially mandated foreclosure sale if unfairness is shown which is prejudicial to an interested party. Citicorp 269 Ill. App. 3d at 300. Trial courts have broad discretion in approving or disapproving sales made at their direction. Citicorp, 269 Ill. App. 3d 293, 645 N.E.2d 1038, 206 Ill. Dec. 786.
In the instant case, appellants contend that the trial court protected Espinoza from her negligence in failing to comply with the statutory redemption proceedings. We disagree. Rather, our review of the record shows that the trial court carefully considered the statutory factors provided in section 15-1508(b) of the Act and, based on the evidence presented, decided that the terms of the sale were unconscionable and that justice would not be done if the sale were confirmed. We believe that the evidence contained in the record on appeal supports the trial court's conclusion.
The record on appeal does not contain a transcript of Espinoza's testimony, and we note that Javaras and Prasad, as appellants, were obligated to provide this court with a record that is sufficient to sustain their claim of error. Grubert v. Cosmopolitan National Bank, 269 Ill. App. 3d at 412. However, Espinoza's affidavit, which was included in the appendix to appellants' brief, indicates that Espinoza made several attempts to contact Commercial through its attorneys and attempted to redeem her property and attend the foreclosure sale. Espinoza told Sergio Magana that she had the money and asked for instructions on how to pay the debt or attend the foreclosure sale. Magana testified that Espinoza did not say that she had the money but only stated that she was getting the money. However, the record reflects that the trial court did not find his testimony to be entirely credible because parts of his testimony conflicted with his previously sworn affidavit. Based on these facts and the fact that the value of the property at issue was six times more ...