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Northwest Diversified, Inc. v. Mauer

June 03, 2003

NORTHWEST DIVERSIFIED, INC., AS ASSIGNEE OF FELICJAN NIEMIEC, PLAINTIFF,
v.
HALINA MAUER, A/K/A HALINA PTASZNIK MAUER, DEFENDANT-APPELLEE,
v.
LASALLE BANK N.A. AS TRUSTEE U/T/A DATED 6-13-00 AND KNOWN AS TRUST #129296 AS ASSIGNEE OF NORTHWEST DIVERSIFIED, INC., LEVY SALE PURCHASER-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable Samuel J. Betar III, Judge Presiding.

The opinion of the court was delivered by: Justice Burke

UNPUBLISHED

Levy sale purchaser LaSalle Bank N.A. (LaSalle) appeals from an order of the circuit court granting defendant Halina Mauer's motion to set aside a real estate sale and to extend the redemption period. On appeal, LaSalle contends that the trial court erred in setting aside a sheriff's sale of the property because no irregularity occurred in the sale; in particular, there was evidence, through an office custom and practice, demonstrating that Mauer received a copy of an appraisal of the property and a 60-day notice required by section 12-911 of the Code of Civil Procedure (Code) (735 ILCS 5/12-911 (West 1998)). For the reasons set forth below, we affirm.

STATEMENT OF FACTS

On August 5, 1997, Feligjan Niemiec obtained an ex parte default judgment against Mauer stemming from a loan Niemiec had made to Mauer. On November 4, the trial court issued an order requiring Mauer to make installment payments of $200 per month to Niemiec. On April 24, 1998, Niemiec filed a motion requesting a lien on Mauer's home located at 8005 North New England, Niles, Illinois, due to Mauer's failure to make the installment payments as required. On May 30, Niemiec assigned her judgment to Northwest Diversified, Inc. (Northwest). On June 29, Northwest issued a direction to levy against Mauer's home. On July 8, the Cook County Sheriff's Office (the sheriff) served the levy upon Mauer by substituted service upon Jerzy Nowicki. *fn1 Personal service upon Mauer was attempted three times and the sheriff was finally successful in serving her on September 3. Thereafter, pursuant to statute, three commissioners were summoned to appraise Mauer's property. The appraisal indicates that the property was valued at more than $15,000. *fn2 On December 2, Mauer's home was sold at a sheriff's sale to Northwest for $10,124, and the sheriff issued a certificate of sale to Northwest.

On June 14, 2000, Northwest assigned the certificate of sheriff's sale to LaSalle. On June 15, because the period for redemption had expired, a sheriff's deed was issued to LaSalle. On July 13, Mauer filed a motion to set aside the sale of real estate and to extend the period of redemption. Mauer alleged that the sale should be set aside because she had never been served with the levy, a copy of the certificate of sale, or the appraisal and 60-day notice as required by section 12-911 of the Code. According to Mauer's motion, she was unaware of any events in connection with the sale of her home until June 16, 2000, when she received a demand for possession with a copy of the sheriff's deed from LaSalle's attorney. Mauer further alleged that the home was undersold at the sheriff's sale since she, in approximately 1988, paid $141,000 for it and, as of July 2000, it had an appraised value of $250,000. Mauer also alleged that she and her husband, Jerzy Nowicki, were entitled to a homestead exemption since they resided in the home. It was Mauer's contention that the sale should be vacated because Illinois law is clear that where the sale was to pay a debt, there were irregularities in the sale, and the home was undersold, the redemption period may be extended. Attached to Mauer's motion was her affidavit, in which she averred that she had never been served with the levy, appraisal or 60-day notice, the notice of sale, the certificate of sale, or the certification of redemption, or given notice that the property would be sold.

In their reply to Mauer's motion to set aside the sale, LaSalle and Northwest merely admitted or denied the allegations of the motion; they did not set forth any legal argument. Thereafter, Mauer replied, stating that LaSalle and Northwest failed to present any evidence or argument to dispute the allegations in her motion and, therefore, her motion should be granted.

On October 19, 2000, pursuant to the trial court's order, the sheriff filed an appearance as well as a response to Mauer's motion to set aside the sale. The sheriff denied that Mauer was not served with the levy, which was confirmed by the affidavit of Maureen Moore, attached to the sheriff's response. The sheriff further argued that it was not his duty to serve a copy of the certificate of sale upon Mauer and, therefore, admitted that he had not done so. Lastly, the sheriff admitted that he had not personally served Mauer with a copy of the appraisal and 60-day notice.

On October 31, 2001, Northwest filed a supplemental response to Mauer's motion to set aside the sale, contending that Mauer was twice served with the levy, once personally and once by substituted service. Northwest further argued that Mauer had been served with the appraisal and 60-day notice. Attached to its response was the affidavit of Carmen Zinke. According to Zinke, from 1998 until 2001, it was the practice and procedure of the Real Estate and Judicial Sales Division of the sheriff's office to mail every debtor the notice required by section 12-911. Zinke further stated that it was not the practice or procedure of the department to keep a copy of the notices mailed until sometime in 2000.

On November 6, the trial court granted Mauer's motion to set aside the sale and ordered the June 15, 2000, sheriff's deed null and void. The court ordered LaSalle or Northwest to provide Mauer with the payoff judgment amount by November 20. On November 21, Mauer filed a motion for a rule to show cause and for sanctions against LaSalle and Northwest because no payoff amount had been provided to her.

On November 29, Northwest filed a motion to reconsider the November 6 order. Northwest alleged that Mauer had made material misstatements in her pleadings, that under section 12-116 of the Code, Northwest did not have notice of any irregularities in the sale and, therefore, such irregularities could not be used to vacate the sale, and that the lack of a copy of the 60-day notice sent to Mauer did not constitute an irregularity. Attached to Northwest's motion to reconsider were three new affidavits: those of Zinke, Salvatore Aloisio, and Kenneth Swiatek, Northwest's president. *fn3 Zinke averred that she was responsible for processing directions to levy and to complete all work necessary to effectuate a sheriff's sale and for the issuance of a sheriff's deed. Zinke stated that she had no personal memory of the particular file at issue, but that she was able to state the procedures she followed in handling it. Upon receiving the direction to levy, she or Aloisio opened a file and, upon payment of the necessary fees, placed the levy and a copy of the judgment with the sheriff for service on the debtor. After service was obtained, she prepared paperwork to summon three commissioners to appraise the property. The file in the instant case showed that the appraisal was returned on September 23, 1998. Aloisio then assigned a sale date of December 1, 1998, and gave the file to Zinke. Zinke placed the file in a particular holder on her desk, which was used only for those files that needed 60-day notices to be sent. According to Zinke, she mailed a 60-day notice to Mauer on the same day Aloisio returned the file to her. After mailing the 60-day notice, Zinke placed the file in a file drawer. According to Zinke, she had been following this same procedure for 12 years and had followed it on every levy. Zinke further stated that if the notice had not been sent, the file would still be on her desk in the appropriate file holder. In addition, there was no indication on the file that the notice had been returned. Zinke also stated that the file indicated that a notice of publication was signed on October 9, 1998. Lastly, Zinke stated that prior to 1999, she never kept copies of 60-day notices unless they had been returned by the post office.

Aloisio averred in his affidavit that he was Zinke's supervisor. Aloisio also stated that upon receipt of the direction to levy on Mauer's home, he placed this along with a copy of the judgment with the sheriff for service. According to Aloisio, after the return of the substituted service on Jerzy Nowicki, Aloisio spoke with Swiatek, who requested that the levy be re-served personally on Mauer. Aloisio then directed the sheriff to re-serve Mauer, who was served on September 3. Upon receipt of the return of service, Aloisio then directed Zinke to summon three commissioners to perform an appraisal, which was returned on September 23. Sometime between September 23 and October 1, Swiatek appeared in Aloisio's office and picked a date of sale, which was December 1, 1998. Aloisio then made a notation of the date on the levy file as well as on the sheriff's computer database. Thereafter, he immediately placed the file in its designated spot on Zinke's desk where all files were placed for mailing of the 60-day notices. On October 9, Aloisio pulled the file from the file drawer, where files were placed after the 60-day notices had been mailed. According to Aloisio, having found the file in its proper place, he executed the sheriff's notice of publication. Aloisio further stated that, at the time the 60-day notice was mailed to Mauer, it was not the procedure of the sheriff's office to maintain a copy of the notice, nor to make any notations that the notice had been sent. However, it was his position that 60-day notices were always mailed in the ordinary course of business and that the only way the office kept track of notices was to move the file from Zinke's desk to the filing cabinet. Aloisio also stated that "as Selling Officer ***, [he] will not let a file go to sale unless all established procedures in the Sheriff's Office are followed in accordance with law and in accordance with our ordinary course of business." Thus, he concluded that Mauer was served with a 60-day notice.

On February 14, 2002, the trial court denied Northwest's motion to reconsider. Northwest was again ordered to provide a payoff amount to Mauer by ...


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