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Onewest Bank, Fsb v. Gerald Hawthorne et al

March 12, 2013

ONEWEST BANK, FSB,
PLAINTIFF-APPELLEE,
v.
GERALD HAWTHORNE ET AL.,
DEFENDANTS, AND
KIM DOWNS,
DEFENDANT-APPELLANT.



Appeal from the Circuit Court of St. Clair County. No. 10-CH-491 Honorable Stephen P. McGlynn, Judge, presiding.

The opinion of the court was delivered by: Justice Welch

Rule 23 order filed

February 4, 2013;

Motion to publish granted

JUSTICE WELCH delivered the judgment of the court, with opinion. Justices Goldenhersh and Chapman concurred in the judgment and opinion.

OPINION

¶ 1 Kim Downs, the appellant, appeals from the denial by the circuit court of St. Clair County of her petition for relief from judgment, filed pursuant to section 2-1401 of the Code of Civil Procedure (the Code) (735 ILCS 5/2-1401 (West 2010)). The appellant sought relief from a judgment of foreclosure and sale, and the order approving sale of the foreclosed property. For reasons which follow, we affirm.

¶ 2 On April 5, 2010, OneWest Bank, FSB (the Bank), filed its complaint to foreclose mortgage on the appellant's residence. There is no dispute that the appellant was a party to the mortgage and a co-owner of the property. Attempts at personal service on the appellant were unsuccessful and she was properly served by publication. The appellant failed to answer or otherwise respond to the complaint.

¶ 3 On June 21, 2010, the Bank filed a motion for entry of an order of default against the appellant and prove-up was made. On June 24, 2010, an order of default was entered against the appellant and a judgment for foreclosure and sale of the property was entered. Because this foreclosure judgment contained a finding that it was final and appealable and no just reason existed for delaying its enforcement or appeal, the judgment constituted a final and appealable order. See In re Marriage of Verdung, 126 Ill. 2d 542, 555 (1989).

¶ 4 On October 22, 2010, the appellant filed a pro se motion to vacate the default judgment against her, but the motion was not set for hearing. On November 10, 2010, the appellant filed a second motion to vacate the default judgment and a notice of hearing on the motion.

¶ 5 Before the motions to vacate the default judgment could be heard, on February 16, 2011, attorney Charles H. Stegmeyer entered an appearance on behalf of the appellant. The appellant's pro se motion to vacate the default judgment came on for hearing one day later, on February 17, 2011, but neither she nor her attorney appeared. Accordingly, the motion was denied "with prejudice." The court's order stated erroneously that no counsel had entered an appearance on the appellant's behalf.

¶ 6 On February 28, 2011, the appellant, through attorney Stegmeyer, filed a motion to reconsider the order denying her motion to vacate the default judgment. The motion pointed out that the appellant's counsel had entered his appearance and filed a motion for continuance the day before the motion to vacate was heard, and asserted that the appellant had a meritorious defense.

¶ 7 After a hearing held April 21, 2011, the appellant's motion to reconsider the order denying the motion to vacate the default judgment was denied. The court found that the appellant had failed to present a meritorious defense.

ΒΆ 8 On April 25, 2011, the property was sold at public auction and purchased by the Bank for the amount of the debt. On May 6, 2011, the Bank filed its motion for an order approving the report of sale and ...


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