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FIRSTAR BANK NA. v. GOLDMAN

June 1, 2004.

FIRSTAR BANK NA, as Successor in Interest to an Ohio Bank, Plaintiff; V. M. MICHAEL GOLDMAN, a/k/a MERWYN GOLDMAN, DORRIS PRIZANT, THE RIVER PARK AT D1VERSEY CONDOMINIUM ASSOCIATION, UNKNOWN OWNERS and NON-RECORD CLAIMANTS, Defendants


The opinion of the court was delivered by: CHARLES NORGLE, District Judge

OPINION AND ORDER

Defendants move pursuant to 735 ILCS 5/15-1508(b)(iv) to disrupt confirmation of the sale of real estate located at 2208 West Diversey, Unit D, Chicago, Illinois. For the following reasons, Defendant's motion is denied.

I. BACKGROUND

  For approximately six years, Defendants M. Michael Goldman and Dorris Prizant (collectively "Defendants") owned and occupied the property commonly known as 2208 West Diversey, Unit D, Chicago, Illinois ("Property"). During this period, the Property was subject to a mortgage. On July 31, 2002, Plaintiff Firstar Bank NA ("Firstar") commenced this action against Defendants seeking foreclosure of the mortgage. In October 2002, Defendants and Firstar entered into a forbearance agreement in which Firstar agreed to dismiss the foreclosure action provided that Defendants make monthly mortgage payments to Firstar. In November 2002, Defendants ceased making mortgage payments as required by the forbearance agreement, allowing Firstar to pursue the foreclosure proceedings.

  On May 2, 2002, the court reinstated Firstar's action against Defendants. On May 7, 2003, Defendants were personally served with process. Defendants did not answer the Complaint or otherwise plead, nor was an attorney appearance ever filed on their behalf. Defendants never personally appeared in the courtroom. On December 5, 2003, the court entered an Order of Default against Defendants and entered a Judgment of Foreclosure and Sale in the amount of $364,725.90. The judgment provided that the statutory redemption period expire on March 6, 2004. Defendants failed to redeem the Property.

  On March 9, 2004, court — appointed Special Commissioner Nancy Vallone conducted a public sale of the Property. At the auction, Firstar made an opening bid of $367,294.18, representing the entire amount of the debt Defendants owed to Firstar. Intervenors Mary O'Neil, Colette O'Neil, and Kevin Eickmann (collectively "Intervenors") successfully bid $367,295.19 for the Property. After tendering full payment, Intervenors received a Certificate of Sale. Defendants remained in possession without making payments.

  On March 19, 2004, Firstar filed a Motion to Confirm the Sale, which was to be heard on March 26, 2004. On March 23, 2004, Defendants filed this motion styled "Petition to Disrupt Confirmation of Sale," brought pursuant to 735 ILCS 5/15-1508(b)(iv). Defendant's motion is fully briefed and now before the court.

  II. DISCUSSION

 A. Review Under the Illinois Mortgage Foreclosure Act

  Under Illinois law, a judicial foreclosure sale is not complete until it has been approved by the trial court. Fleet Mortgage Corp. v. Deale, 678 N.E.2d 282, 285 (III. App. Ct. 1997). The high bid received at a judicial sale is merely an irrevocable offer to purchase the property, and acceptance of the offer takes place upon judicial confirmation. Citicorp Savings v. First Chicago Trust Co., 645 N.E.2d 1038, 1045 (III. App. Ct. 1995). Until the court confirms the judicial sale, there is not a true sale in the legal sense, id.

  The Illinois Mortgage Foreclosure Act provides that the trial court shall confirm a foreclosure sale unless: (1) proper notice was not given; (2) the terms of the sale were unconscionable; (3) the sale was conducted fraudulently; or (4) justice was otherwise not done. 735 ILCS 5/15-1508(b): see also Commercial Credit Loans. Inc., v. Espinoza. 689 N.E.2d 282, 285 (III. App. Ct. 1997). "A court is justified in disapproving a judicially mandated foreclosure sale if unfairness is shown which is prejudicial to an interested party." Id. (citing Citicorp, 645 N.E.2d at 1045). The party opposing the sale bears the burden of proving that grounds to disallow the sale exist. Cragin Federal Bank for Savings v. American National Bank & Trust Co. of Chicago, 663 N.E.2d 1011 (III. App. 1994). Trial courts have broad discretion in approving or disapproving sales made at their direction; however, this discretion is not without its limits. In re Rosewell, 603 N.E2d 753, 756 (Ill. 1992).

 B. Application to This Case

  Defendants concede that the first three elements of 735 ILCS 5/15-1508(b) are not at issue. They acknowledge that notice was proper, the terms of the sale were not unconscionable, and the sale was not conducted fraudulently. Defendant's sole basis for disrupting the sale is that justice will not be served if the court confirms the sale. See Def.'s Reply, at 2, Specifically, Defendants make two arguments in support of their contention. First, they argue that because the sale price was significantly below the Property's fair market value, Defendants, who are both over seventy years of age, stand to lose their life savings. Second, Defendants argue that confirmation of the sale would be unjust because ...


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