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Sewickley, LLC v. Chicago Title Land Trust Company

June 26, 2012

SEWICKLEY, LLC,
PLAINTIFF-APPELLEE,
v.
CHICAGO TITLE LAND TRUST COMPANY, AS SUCCESSOR TRUSTEE TO LASALLE BANK N.A., F/K/A LASALLE NATIONAL BANK AS TRUSTEE UNDER A TRUST AGREEMENT DATED MAY 16, 1996 AND KNOWN AS TRUST NUMBER 10-19496-09;
JOHN ATHANS, LOULA ATHANS, THE LINCOLN RESTAURANT, INC., UNKNOWN OWNERS AND NON- RECORD CLAIMANTS,
DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County No. 09 CH 44291 Honorable John C. Griffin, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Quinn

PRESIDING JUSTICE QUINN delivered the judgment of the court, with opinion.

Justices Cunnigham and Connors concurred in the judgment and opinion.

OPINION

¶ 1 This is an appeal by the defendants to attempt to overturn the order that confirmed the judicial sale of the commercial real estate located at 4008 N. Lincoln Ave., Chicago, Illinois, held following a default judgment entered against all defendants and after defendants failed to raise objections at the hearing to confirm the sale. For the reasons that follow, we affirm.

¶ 2 I. Background

¶ 3 A commercial loan was made to the defendant trustee on March 5, 2001 for $975,000. The note was secured by the real estate at 4008 N. Lincoln Ave., Chicago, Illinois.

¶ 4 About 81/2 years later, on November 9, 2009, the bank commenced this action seeking foreclosure of the mortgage for failure to make any mortgage payments since July 5, 2009, leaving a principal balance due of $824,539.63 plus accrued interest and late charges.

¶ 5 The trustee, as well as other interested parties, John Athans, Loula Athans and The Lincoln Restaurant, were served on November 12, 2009viathe circuit court's general administrative order that was implemented to handle the high volume of service required in mortgage foreclosure cases. None of the defendants appeared, answered or filed a responsive pleading within the required 30 days of service.

¶ 6 On January 7, 2010, an attorney filed an appearance on behalf of the trustee, John Athans and Loula Athans. No appearance was filed on behalf of The Lincoln Restaurant. This was followed by a motion to quash service on the three defendants who appeared. The motion was denied on April 1, 2010. No answer or other responsive pleading was filed by defendants following the denial of their motion to quash service.

¶ 7 On June 10, 2010, the bank presented a motion for default. The three defendants filed a motion to strike. Following denial of that motion, the three defendants were given additional time to file an answer until July 30, 2010. No answer or other responsive pleading was filed.

¶ 8 On September 2, 2010, the bank again presented a motion for default. Again, the three defendants were granted another extension of time to file a responsive pleading. Again, no responsive pleading was filed.

¶ 9 On October 13, 2010, the bank again presented its motion for default. That day, the court entered an order of default judgment against all defendants and a judgment of foreclosure and sale.

¶ 10 On December 12, 2010, the bank assigned its interests in the mortgage to Sewickley, LLC. A judicial sale was held on January 14, 2011, which produced a single and, therefore, highest bid of $300,000 from Sewickley, LLC, as a credit bid.

¶ 11 On February 10, 2011, the defendants' attorney filed an additional appearance on behalf of the fourth defendant, The Lincoln Restaurant. On February 15, 2011, he filed a motion to quash service which was made back on November 12, 2009 in the same manner as the other three defendants. The Lincoln Restaurant's motion mirrored the one that was filed on behalf of the other three defendants that the court denied back on April 1, 2010. The court reiterated its position on service of process and denied this motion, as well.

¶ 12 On February 15, 2011, Sewickley, LLC, presented its motion to substitute as the party plaintiff based on the assignment it received from the bank. It also moved for an order approving the sale that was generated at the judicial sale on January 14, 2011 and for an order of possession because no defendant had paid on the mortgage since July 2009. The defendants, John Athans, Loula Athans and the trustee, filed their motion for procedural due process and to void the judgments of foreclosure and sale, the orders of default, the judicial sale and all related orders. The court allowed all defendants an additional 14 days to respond to the motion to substitute Sewickley, LLC, as the party plaintiff and the motion to confirm the judicial sale of January 14, 2012.

¶ 13 On May 10, 2011, John Athans, Loula Athans and the trustee filed a request for a third extension of time to file a response to the motion to confirm the January 14, 2011 judicial sale. At this time, defendants argued they needed the additional time to prepare a fully supported argument regarding the difference between the sales price and the value of the property determined by an appraiser. Defendants attached a cover page and a valuation page from an appraisal that was at least 90 pages in length in support of their third request for an extension of time. Despite being granted this third extension, none of the defendants filed a response or objection to plaintiff's motion to confirm the judicial sale.

ΒΆ 14 On June 13, 2011, defendants John Athans, Loula Athans and the trustee filed a joint response to the motion to substitute Sewickley, LLC, as the plaintiff and the motion to place the mortgagee in possession. Defendants never filed any written objections to plaintiff's request for a court order confirming the judicial sale despite being given four months to do so. On June 17, 2011, after a hearing, the circuit court entered an order that (1) granted the motion to confirm the judicial sale of $300,000; (2) granted the petition to substitute Sewickley, LLC, as the plaintiff; (3) granted the petition to place the ...


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