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Nationwide Advantage Mortgage Company v. Miguel Ortiz

June 29, 2012

NATIONWIDE ADVANTAGE MORTGAGE COMPANY,
PLAINTIFF-APPELLEE,
v.
MIGUEL ORTIZ,
DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. No. 09 CH 39049 Honorable Mathias Delort, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Robert E. Gordon

PRESIDING JUSTICE ROBERT E. GORDON delivered the judgment of the court, with opinion. Justices Garcia and Palmer concurred in the judgment and opinion.

OPINION

¶ 1 On October 14, 2009, plaintiff Nationwide Advantage Mortgage Company brought a mortgage foreclosure action, seeking possession of the property located at 7462 North Ridge Boulevard, Chicago, Illinois, where defendant Miguel Ortiz was the sole mortgagor. On March 10, 2010, plaintiff was granted judgment for foreclosure and sale pursuant to the Illinois Mortgage Foreclosure Law (the Law) (735 ILCS 5/15-1101 et seq. (West 2010)). Defendant subsequently filed motions to withdraw his answer and to dismiss plaintiff's complaint under section 2-619 of the Illinois Code of Civil Procedure (735 ILCS 5/2-619 (West 2010)) for lack of standing. The trial court granted defendant's motions, finding that the assignment of the mortgage note to plaintiff was not executed until November 4, 2009, which was after October 14, 2009, when plaintiff filed the mortgage foreclosure complaint. During the 30 days between the grant of defendant's motion to dismiss and the deadline for plaintiff to file a motion to reconsider, this court decided Mortgage Electronic Registration Systems, Inc. v. Barnes, 406 Ill. App. 3d 1, 6-7 (2010), which held that a mortgagor was prohibited from raising the affirmative defense of standing after the entry of a foreclosure order. After reviewing this decision, the trial court granted plaintiff's motion to reconsider and vacated its dismissal of the case for lack of standing on March 11, 2011. Defendant then moved for reconsideration of the March 11 order, and the trial court denied the motion. On August 17, 2010, plaintiff's sale was confirmed.

¶ 2 Defendant's notice of appeal states that he appeals the trial court's order of August 17, 2011, confirming the sale, and the order of June 23, 2011, denying defendant's motion to reconsider.

¶ 3 We affirm for the following reasons: (1) defendant forfeited his lack of standing defense, and (2) the trial court properly confirmed the judicial sale of defendant's property.

¶ 4 BACKGROUND

¶ 5 Defendant Miguel Ortiz is the sole mortgagor of the subject property, located at 7462 North Ridge Boulevard in Chicago, and has continued to reside at the property since the mortgage was executed on April 18, 2008. During this time, defendant rebuilt the first floor of the property into a licensed and operating day care center. The mortgage defines: defendant as the borrower, Equity Mortgage Corporation (EMC) as the lender, and "Mortgage Electronic Registration Systems" (MERS) as the mortgagee. The note secured by the mortgage provided that the lender could transfer the note and that anyone who received the note by transfer was entitled to receive payments under the note and would be called the "Note Holder."

¶ 6 On October 14, 2009, plaintiff filed a verified complaint to foreclose the mortgage, alleging that defendant was in default of the mortgage loan in the amount of $301,821.34 in unpaid principal. The complaint alleges that defendant had not paid the monthly installments of principal, taxes, interest, and insurance since February 1, 2009. Plaintiff's complaint further alleges that it brought the suit as the legal holder of the indebtedness. On November 13, 2009, defendant filed an appearance pro se and a verified answer.

¶ 7 On January 20, 2010, plaintiff filed motions for summary judgment and judgment of foreclosure and sale. A briefing schedule was set on the motion for summary judgment, which gave defendant until February 10, 2010, to file a response. Defendant failed to respond by the February 10 deadline, and at the March 10, 2010, hearing date, the trial court granted plaintiff summary judgment and judgment for foreclosure and sale. Defendant did not appear. Pursuant to the judgment order, plaintiff subsequently scheduled a judicial sale of the property for May 12, 2010. Thereafter, defendant obtained counsel, who, on June 6, 2010, filed an appearance and a motion to stay the judicial sale. The trial court granted the motion and stayed the sale until July 12, 2010. On July 12, 2010, the property was purchased by plaintiff at the judicial sale for the amount of the total debt owed. On August 17, 2010, plaintiff moved to confirm the sale.

¶ 8 Defendant obtained new counsel, who, on August 30, 2010, moved to withdraw defendant's answer and filed a section 2-619(a)(9) motion to dismiss claiming lack of standing, based on the claim that plaintiff was assigned the note and mortgage after the time the foreclosure action was filed. Defendant claimed in its motion to dismiss that the foreclosure action was filed on October 14, 2009, and that the assignment was not executed until November 4, 2009. Plaintiff claimed in its supplemental response that it had been assigned the note before the foreclosure was filed, and that the assignment was not recorded until November 4. Plaintiff argued that "Illinois law does recognize oral assignments as valid," (see Buck v. Illinois National Bank & Trust Co., 79 Ill. App. 2d 101, 105 (1967)) and that the creation and existence of an assignment should be determined by the intention of the parties, which is to be derived not only from the executed instruments but also the surrounding circumstances. Angelina County Lumber Co. v. Michigan Central R.R. Co., 252 Ill. App. 82, 89 (1929).

¶ 9 On November 20, 2010, the trial court found that the assignment occurred after the action was filed and that plaintiff had violated a local rule which states that, "[a]ny and all assignments or other documents (as applicable) demonstrating the movant's standing to foreclose" must be submitted to the court prior to the consideration of entry of an order for judgment. Cook Co. Cir. Ct. Mortgage Foreclosure Courtroom Procedures, Particular Motions II(B)(2) (eff. Apr. 1, 2011). The trial court found that the complaint must be dismissed and refiled. The trial court denied defendant's motion to withdraw the answer as being moot, since the case was being dismissed.

¶ 10 During the 30 days between the grant of defendant's motion to dismiss and the deadline for plaintiff to file a motion to reconsider, this court decided Mortgage Electronic Registration Systems, Inc. v. Barnes, 406 Ill. App. 3d 1, 6-7 (2010), which generally held that a defendant mortgagor could not raise the affirmative defense of standing after the entry of a foreclosure order. In response, plaintiff filed a motion to reconsider, arguing that defendant's request for relief was not timely, citing Barnes. Plaintiff also claimed that the trial court had misapplied plaintiff's burden and the evidentiary standard under section 2-619. On March 11, 2011, the trial court reversed itself on plaintiff's motion to reconsider, relying on the Barnes decision as instructive, and vacated its November 2010 order. On April 11, 2011, defendant filed a motion to reconsider, which was denied. In response to plaintiff's motion to confirm the sale, defendant claimed that the "full debt" bid resulted in an unconscionable sale price. However, on August 17, 2011, the trial court entered an order confirming the sale.

ΒΆ 11 On September 15, 2011, defendant filed a timely notice of appeal, which stated that he was appealing: (1) the order confirming the sale of August 17, 2011, which denied his objection to the confirmation of sale; and (2) the June 23, 2011, order, which denied the defendant's motion to ...


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