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Bank of America, N.A. v. Luca

Court of Appeal of Illinois, Third District

September 11, 2013

BANK OF AMERICA, N.A., Plaintiff-Appellee,
v.
Sergiu LUCA, Elena Luca, and The Lakelands Estate Homeowners Association Corporation, Defendants-Appellants.

Page 362

Stephen Richek, Chicago, for appellants.

Louis J. Manetti, Jr., and Margaret Manetti, Codilis & Associates, P.C., Burr Ridge, for appellee.

OPINION

CARTER, Justice.

[376 Ill.Dec. 479] ¶ 1 The plaintiff, Bank of America, N.A., filed a foreclosure action against the defendants, Sergiu and Elena Luca. The plaintiff filed motions for entry of an order confirming judicial sale and for entry of an order of possession. The circuit court entered the order of possession for the plaintiff, but granted the defendants an extension of possession from 30 days to 60 days. The defendants filed a petition pursuant to section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2012)) challenging the order of possession and all prior orders, which the circuit court denied. After the court denied the defendants' motion to reconsider, the defendants appealed. On appeal, the defendants argue that the circuit court erred when it denied their section 2-1401 petition. We affirm.

¶ 2 FACTS

¶ 3 This case originated in the circuit court on September 2, 2009, when the plaintiff filed a foreclosure action against the defendants regarding a home in Plainfield, Illinois. The complaint was preceded by a grace-period notice mailed by the plaintiff in April 2009 to the home, which was addressed only to defendant Sergiu Luca.

¶ 4 In late 2009, the plaintiff mailed a notice to the defendants of a motion for default and judgment for foreclosure. The defendants' answer to the motion provided details on how the home was damaged and why they ceased making payments, acknowledged they had consulted with an attorney, and attached pertinent documents. Subsequently, in spring 2010, the circuit court granted summary judgment for the plaintiff and entered an order for foreclosure and sale. The judicial sale of the property occurred on February 8, 2012.

¶ 5 On March 14, 2012, a hearing was held on the plaintiff's motions for entry of an order confirming judicial sale and for entry of an order of possession. The circuit court granted both of the motions. However, in doing so, the court said to the defendants, " I am going to give you 60 days possession, which is twice what the law requires, all right? And in that time, maybe you can get a lawyer who will file the appropriate motions and see if we can give you any kind of assistance on this."

¶ 6 Additionally, the circuit court denied defendant Sergiu Luca's motion to vacate the sale, which was essentially premised on an argument that the plaintiff committed " fraud and misrepresentation for misleading us and * * * wrongful foreclosure on our home." However, because defendant Sergiu Luca presented no evidence to support those allegations, the court denied the motion.

¶ 7 On May 11, 2012, the defendants filed a petition to vacate pursuant to section 2-1401 of the Code (735 ILCS 5/2-1401 (West 2012)). In the petition, the defendants alleged that the due diligence [376 Ill.Dec. 480]

Page 363

requirement for section 2-1401 petitions was not an issue because the court had granted them 60 days " to come back to Court with any issues they are able to find." The defendants also alleged that the grace-period notice sent by the plaintiff was defective because it was addressed only to defendant Sergiu Luca and not to defendant Elena Luca as well.

¶ 8 On May 30, 2012, the circuit court held a hearing on the defendants' section 2-1401 petition. The defendants' attorney argued that defendant Elena Luca never received the grace-period notice, and, as such, the foreclosure action could not commence. The circuit court first clarified that the 60-day possession order was intended to give the defendants additional time to resolve the dispute with the plaintiff and that the order had nothing to do with the grace-period notice. Second, the court ruled that ...


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