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Standard Federal Bank for Savings v. Hanno

June 22, 2001

STANDARD FEDERAL BANK FOR SAVINGS, A CORPORATION OF THE UNITED STATES, PLAINTIFF-APPELLEE,
v.
JOHN A. HANNO, J AND J EMPLOYEES CREDIT UNION AND UNKNOWN OWNERS AND NON-RECORD CLAIMANTS, DEFENDANTS-APPELLANTS.



The opinion of the court was delivered by: Justice Reid

Not Released For Publication

STANDARD FEDERAL BANK FOR SAVINGS, A CORPORATION OF THE UNITED STATES, PLAINTIFF-APPELLEE,
v.
JOHN A. HANNO, J AND J EMPLOYEES CREDIT UNION AND UNKNOWN OWNERS AND NON-RECORD CLAIMANTS, DEFENDANTS-APPELLANTS.

The opinion of the court was delivered by: Justice Reid

Appeal from the Circuit Court of Cook County. The Honorable Robert V. Boharic Judge Presiding.

John Hanno appeals the circuit court's order which confirmed the foreclosure sale of his former residence. On appeal, Hanno contends the order confirming the foreclosure sale is void because: (1) the appellee's motions to reinstate and to confirm the foreclosure sale were filed prior to the docketing of the dismissal order of Hanno's last bankruptcy, and (2) it was entered in violation of the automatic stay provision of Rule 6004(g) of the Federal Rule of Bankruptcy Procedure. Fed.R.B.P. 6004(g).

 On May 22, 1992, Hanno obtained a variable rate mortgage loan from the appellee, Standard Federal Bank for Savings (Standard). Pursuant to the terms of the loan and mortgage, Standard agreed to lend the sum of $250,000 to Hanno, and Hanno executed a mortgage to Standard of his residence located at 6 North Trails in Lemont, Illinois. Hanno signed a promissory note agreeing to monthly principal, interest and tax escrow payments.

Hanno contends that he was unable to make payments under the terms of the promissory note and mortgage as a result of Standard's breach of the loan agreement. Standard disputes Hanno's contentions.

On January 10, 1994, Standard filed a complaint for mortgage foreclosure. On November 15, 1994, Hanno filed his affirmative defenses and a counterclaim against Standard. On December 7, 1995, a judgment of foreclosure was entered. The order stated that Hanno was in default under the terms of the promissory note as of November 9, 1995. The order provided for the foreclosure and sale of the property located at 6 North Trails in Lemont, Illinois. The judgment of foreclosure provided that the period of redemption would end on March 8, 1996.

Hanno then proceeded to file a series of six bankruptcy petitions. During this time, on July 23, 1998, a sheriff's sale was held and the property was sold for $431,547.39. However, on October 15, 1998, the fourth and fifth bankruptcy petitions were found to have been filed in bad faith and for the purposes of blocking confirmation of the foreclosure sale.

On April 1, 1999, after Hanno filed his sixth bankruptcy petition, a stipulated order was entered which provided for the terms of a settlement between Hanno and TCF National Bank Illinois (TCF), the successor in interest to Standard. The order provided that Hanno would have until December 1, 1999, to complete the sale of the property, and that if the property was not sold by December 1, 1999, the bankruptcy court would dismiss the case. Hanno was unable to sell the property and subsequently, on December 2, 1999, an order was entered dismissing Hanno's sixth bankruptcy petition. On December 6, 1999, the appellee filed motions to reinstate and to confirm the foreclosure sale. On December 7, 1999, the order entered on December 2, 1999, was docketed. On December 9, 1999, the circuit court granted TCF's motion to reinstate the foreclosure case, which was dismissed with leave to reinstate when Hanno filed his sixth bankruptcy, and entered an order that confirmed the sheriff's sale held on July 23, 1998.

As this matter involves a question of law, our standard of review will be de novo. Daley v. American Drug Stores, Inc., 294 Ill. App. 3d 1024 (1998). The issues presented for review in this court were not raised in the trial court. Issues presented for the first time on appeal are deemed waived. Barnett v. Zion Park District, 171 Ill. 2d 378 (1996). Hanno concedes that he is raising these issues for the first time on appeal. Hanno argues that the order which he is appealing from is void, and since a void order can be attacked at any time in any court, he therefore has not waived his arguments. We disagree.

Hanno contends that because the appellee filed its motions to reinstate the case and confirm the foreclosure sale prior to the docketing of the order regarding Hanno's sixth bankruptcy dismissal, the subsequent order reinstating and confirming the foreclosure sale is void. Hanno cites NBD Highland Park Bank, N.A. v. Wien, 251 Ill. App. 3d 512 (1993), to support his argument that the circuit court lacked jurisdiction. In Wien the bankruptcy judge gave an oral ruling from the bench to remand the case to the state court and to lift an automatic stay on October 5, 1992, but the orders were not docketed until October 14 and 15, respectively. On October 12, 1992, before the orders were docketed, the disputed property was sold at a sheriff's sale.

The Wien court wrote that "'[o]rders do not become final until they are docketed. The reasons for respecting finality of judgments do not apply to undocketed orders. They cannot be enforced. * * * Hence, judges may change their decisions until they are docketed. In re American Precision Vibrator Co., 863 F.2d 428, 429 (5th Cir. 1989)'" Wien, 251 Ill. App. 3d at 515-16. The Wien court held that the bankruptcy court retained jurisdiction until its order that lifted the stay was docketed. Since the foreclosure sale occurred prior to the docketing of the order, the circuit court lacked jurisdiction over the matter, and therefore the foreclosure sale was void. Wien, 251 Ill. App. 3d at 517.

Hanno's reliance on Wien is misplaced. The Wien court specifically distinguished its set of facts from those in Noli v. Commissioner of Internal Revenue, 860 F.2d 1521 (9th Cir. 1988), ...


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