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Aurora Loan Services, LLC v. Jadwiga Pajor

July 16, 2012

AURORA LOAN SERVICES, LLC,
PLAINTIFF-APPELLEE,
v.
JADWIGA PAJOR, DEFENDANT-APPELLANT BOGDAN PAJOR, HARRIS NATIONAL ASSOCIATION, F/K/A HARRIS TRUST AND SAVINGS BANK, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., AS NOMINEE FOR FIRST MAGNUS FINANCIAL CORPORATION, UNKNOWN OCCUPANTS, UNKNOWN OWNERS, AND NON-RECORD
CLAIMANTS, DEFENDANTS.



Appeal from the Circuit Court of Du Page County. No. 10-CH-2287 Honorable Robert G. Gibson, Judge, Presiding.

The opinion of the court was delivered by: Justice Schostok

JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Justices Bowman and Hudson concurred in the judgment and opinion.

OPINION

¶ 1 The defendant, Jadwiga Pajor, appeals the denial of her petition under section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2010)), in which she sought vacatur of a judgment of an order of possession in favor of the plaintiff, Aurora Loan Services, LLC (Aurora). Pajor asserts that the trial court erred when it denied the petition on the basis that she had not sufficiently shown diligence. She further argues that Aurora's alleged failure to comply with section 15-1502.5 of the Code (735 ILCS 5/15-1502.5 (West 2010)) (as it applies to notice of a grace period) caused the subsequent proceeding to be "invalid under Illinois law." We hold that Pajor's section 2-1401 petition was of the type authorized by Collins v. Collins, 14 Ill. 2d 178 (1958), and therefore was not subject to the requirement to show diligence. However, because the alleged violation of section 15-1502.5 did not, under the facts established in the record, invalidate the foreclosure action, the trial court did not err in denying her petition.

¶ 2 BACKGROUND

¶ 3 Pajor fell behind in paying the mortgage on her home at 201 East Foster Avenue in Roselle. The original holder of the mortgage on the property was First Magnus Financial Corporation. On April 22, 2010, Aurora filed a complaint for foreclosure on the property. Aurora identified itself as the assignee of Mortgage Electronic Registration Systems, Inc. (MERS), which in turn was nominee for First Magnus. The complaint's exhibits included a "Corporate Assignment of Mortgage" from MERS to Aurora dated July 22, 2009, and a "grace period notice" mailed by Aurora to Pajor dated April 21, 2009. Pajor does not dispute that she received the grace-period notice more than 30 days before the foreclosure action was filed.

¶ 4 The record on appeal contains a notice filed July 23, 2010, of a chapter 7 (11 U.S.C. § 701 et seq. (2006)) bankruptcy filing by Pajor and her husband, Bogdan Pajor. According to the notice, the Pajors filed for protection on July 15, 2010, and had counsel in the bankruptcy. In response to the Pajors' bankruptcy filing, the foreclosure case was repeatedly continued.

¶ 5 On February 14, 2011, Aurora moved for entry of a default judgment of foreclosure and for an order for sale. The court entered judgment on February 18, 2011.

¶ 6 On May 19, 2011, Aurora filed a motion for approval of the report of the sheriff's sale and distribution and for an order of possession. The same day, the court denied the Pajors' motion to stay the sheriff's sale. The colloquy at the hearing implies that there was a written motion, but no copy of the motion appears in the record. No one appeared for the Pajors on this motion, and Aurora told the court that the Pajors' attorney had said that he would not be going forward with the motion. The transcript of the hearing that day shows that Aurora represented that the Pajors' motion was based on a proposal for a short sale that Aurora did not intend to accept.

¶ 7 On June 6, 2011, the court approved the report of sale. The report showed a deficiency of $208,499.51, described as in rem, suggesting that the Pajors had discharged the in personam obligation in the bankruptcy.

¶ 8 On August 10, 2011, the court entered an order denying Pajor's "Motion to Vacate this court's Order of June 6, 2011." However, the record does not contain a copy of this motion. A transcript of the hearing on the motion makes clear that Aurora and the court each had a copy of the filing. The argument and discussion also show that Pajor asserted that cancer treatment had delayed her in responding to the foreclosure. Further, the discussion shows that she asserted that Aurora had violated section 15-1502.5 of the Code. Section 15-1502.5 requires a "mortgagee" to send mortgagors a notice of the existence of a grace period at least 30 days before it files a foreclosure suit. Aurora's exhibits to the complaint show that it had sent the notice before it was formally the assignee of the mortgage. Pajor argued that, "based on the uncertainty regarding the grace period in light of the assignment," Aurora had not "followed the proper procedure in bringing this action to judgment."

¶ 9 The court ruled against Pajor on the basis that she had not acted with sufficient diligence. It noted that the Pajors had had the benefit of counsel for the bankruptcy and that the deficiency was in rem only. The court also noted that someone had been present for the Pajors on the day it "approv[ed] the sale date" and that it had given the Pajors additional time for possession. Pajor filed a timely notice of appeal.

¶ 10 II. ANALYSIS

ΒΆ 11 On appeal, Pajor argues that the trial court erred in denying her motion to vacate (which the parties agree should be viewed as a petition under section 2-1401 of the Code) because she was diligent and had a meritorious defense. Specifically, Pajor contends that section 15-1502.5 requires the "mortgagee" to send the notice of grace period before commencing a foreclosure action, that Aurora was not the mortgagee when it sent the notice and was thus incapable of sending an effective notice, and that, without effective ...


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