United States District Court, N.D. Illinois, Eastern Division
June 17, 2004.
CHASE MANHATTAN MORTGAGE CORPORATION, Plaintiff,
R. BELKE a/k/a ALAN BELKE, et al., Defendants, and AVINOAM COHEN and MARC MULVIHILL, Intervenors.
The opinion of the court was delivered by: JOHN W. DARRAH, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff, Chase Manhattan Mortgage Corporation, filed suit
against Defendants, R. Belke, also known as Alan Belke; Discover
Bank; and Lakewood Villas Condominium Association. Plaintiff
sought to foreclose on a property at 880 Lakeside Drive, Unit
1-A, Vernon Hills, Illinois, 60061. After a judicial sale,
Intervenors, Avinoam Cohen and Marc Mulvihill, both sought to be
declared as the purchaser of the property. Presently before the
Court is Mulvihill's Motion for Judgment on the Pleadings with
Respect to Avinoam Cohen's Complaint for Declaratory Judgment.
For the following reasons, that motion is granted.
Motions for judgment on the pleadings under Federal Rule of
Civil Procedure 12(c) are reviewed under the same standards as a
motion to dismiss under Rule 12(b)(6). N. Indiana Gun & Outdoor
Shows, Inc. v. City of S. Bend, 163 F.3d 449, 452 (7th Cir.
1998). In reviewing a motion to dismiss, the court reviews all facts alleged in the
complaint and any reasonable inferences drawn therefrom in the
light most favorable to the plaintiff. See Marshall-Mosby v.
Corporate Receivables, Inc., 205 F.3d 323, 326 (7th Cir. 2000).
A plaintiff is not required to plead the facts or elements of a
claim, with the exceptions found in Federal Rule of Civil
Procedure 9 which are not applicable here. See Swierkiewicz v.
Sorema, 534 U.S. 506, 511 (2002); Walker v. Thompson,
288 F.3d 1005, 1007 (7th Cir. 2002). Dismissal is warranted only if "it
appears beyond a doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him to relief."
Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The "suit should
not be dismissed if it is possible to hypothesize facts,
consistent with the complaint, that would make out a claim."
Graehling v. Village of Lombard, Ill., 58 F.3d 295, 297 (7th
The facts, for the purposes of this motion, are as follows. On
August 28, 2002, Plaintiff, Chase Manhattan Mortgage Corporation,
filed an action to foreclose on the property at issue. On January
15, 2003, a Judgment of Foreclosure was entered. Pursuant to the
Judgment, a sale was to be conducted by a Special Commissioner.
Specifically, the Judgment required that, "THE SALE shall be
by public auction with open verbal bid conducted by a Special
Commissioner to be appointed by the Court." On May 16, 2003, the
Special Commissioner filed his Notice of Sale announcing that the
sale of the property would occur at 9:00 a.m. on June 9, 2003, at
the Lake County Courthouse.
On June 9, 2003, Cohen appeared at the Courthouse for the sale.
He appeared in front of the law library where judicial sales are
usually conducted. At the time the sale was to occur, the Special Commissioner did not appear at the area in front of the
law library. Cohen telephoned the office of the attorney for the
Special Commissioner and was told to stay in front of the law
library. The Special Commissioner then called Cohen's business
offices and spoke with Cohen's office assistant. The Special
Commissioner told the office assistant that no one appeared at
the sale and that the property went to the bank for their
judgment. The Special Commissioner asked the office assistant
what Cohen would have paid, and she responded with "$1.00 over
the judgment." The Special Commissioner then said "Sold."
Thereafter, Cohen paid the sale amount and was issued a receipt.
Later, Cohen learned the sale of the property to him was not
valid, and he would not receive the property. Cohen intervened
and now seeks to be declared the successful purchaser of the
property at issue.
Mulvihill contends that Cohen's alleged purchase of the
property was not proper because the purchase did not conform with
the Judgment of Foreclosure or the Notice of Sale. "[U]pon the
entry of a judgment of foreclosure . . . the real estate shall be
sold at a sale as provided in this Article, on such terms and
conditions as shall be specified in the judgment of foreclosure."
735 ILCS 5/15-1507(b). When selling a property pursuant to a
court order, the officer selling the property must conform to the
order, or the sale will be set aside. World Sav. & Loan Ass'n v.
AmerUS Bank, 740 N.E.2d 466, 472 (Ill.App. Ct. 2000).
Here, under the facts pled by Cohen, the Special Commissioner
did not sell the property pursuant to this Court's order. The
sale was not public but made over the telephone and was not made
pursuant to an auction. Cohen has pled no facts which would
entitle him to the property. Cohen further contends that there are material facts at issue
showing that Mulvihill did not properly pay for the property.
Whether Mulvihill properly paid for the property is an issue of
fact not properly resolved by the present motion.
For the foregoing reasons, Mulvihill's Motion for Judgment on
the Pleadings with Respect to Avinoam Cohen's Complaint for
Declaratory Judgment is granted; and the purported "sale" to
Cohen of the subject property is vacated and set aside.
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