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Citimortgage, Inc. v. Sharlow

Court of Appeals of Illinois, Third District

January 30, 2014

CITIMORTGAGE, INC., Assignee of Mortgage Electronic Registration Systems, Inc., as Nominee for Draper and Kramer Mortgage Corporation, Plaintiff-Appellee,
v.
SHERRIE L. SHARLOW, Defendant-Appellant (American General Financial Services of Illinois, Inc., Under Mortgage Recorded as Document Number R2006087225; and Marquette's Estates Homeowners Association, Defendants)

Page 581

Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois. Circuit No. 09-CH-6246. Honorable Richard J. Siegel, Judge, Presiding.

Affirmed.

SYLLABUS

The denial of defendant's petition under section 2-1401 of the Code of Civil Procedure seeking to modify the trial court's order confirming the foreclosure and the sale of defendant's property based on the allegations that a surplus existed and that defendant was entitled to the surplus was affirmed on appeal, since the discrepancy that gave rise to defendant's claims arose from interest that accrued from the foreclosure judgment to the date of the sale and postjudgment fees, costs, and advances to which plaintiff was entitled under the circumstances of the case.

Lloyd Brooks and Charles Howell, both of Consumer Legal Group, P.C., of Matteson, for Appellant.

Ryan M. Holz, J. Matthew Goodin, and Hugh S. Balsam, all of Locke Lord LLP, of Chicago, for Appellee.

JUSTICE CARTER delivered the judgment of the court, with opinion. Justice Holdridge concurred in the judgment and opinion. Justice O'Brien dissented, with opinion.

OPINION

CARTER, JUSTICE

Page 582

About 22 months after the judicial foreclosure sale of her property was confirmed by the trial court, defendant, Sherrie L. Sharlow, filed a petition under section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2012)) to modify the order confirming the sale, alleging that a surplus existed from the sale of her property and that she was entitled to that surplus. Plaintiff, the mortgagee that had foreclosed upon the property and that had purchased the property at the sheriff's sale, opposed the petition, claiming that no surplus existed and that the unallocated amount, over $10,000, was attributable to accrued postjudgment interest and additional costs and advances that plaintiff was due. Following a hearing, the trial court denied defendant's section 2-1401 petition. Defendant appeals. We affirm the trial court's judgment.

FACTS

Defendant owned certain real property in Romeoville, Will County, Illinois. The property had a mortgage on it, upon which defendant defaulted. Plaintiff received an assignment of the mortgage and later, in December 2009, filed a complaint

Page 583

to foreclose upon the mortgage. During the foreclosure proceedings, defendant was personally served, did not appear, and was eventually defaulted. On February 25, 2010, the trial court entered a judgment of foreclosure and order of sale of the property (collectively referred to as the judgment, the judgment of foreclosure, or the foreclosure judgment). The judgment listed the total amount of indebtedness as $208,189.93, which included principal of $183,786.61; accrued interest of $13,042.15; and certain fees, costs, and advances of $11,361.17. Included in the total amount of the indebtedness listed was plaintiff's reasonable attorney fees of $1,125. In addition, the foreclosure judgment provided that plaintiff was entitled to collect any nonreimbursed postjudgment costs that it incurred in connection with the sale of the property and the perfection of the certificate of sale and was also entitled to collect postjudgment interest of 9% per year from the date of the foreclosure judgment until the date of sale. Furthermore, the foreclosure judgment contained language pursuant to Illinois Supreme Court Rule 304(a) (eff. Jan. 1, 2006) that there was no just reason to delay enforcement or appeal of the judgment.

The redemption period expired on June 27, 2010. On August 25, 2010, the property was sold at a sheriff's sale. Prior to the sale, a notice was mailed to defendant, although there is no indication in the record as to whether that notice was received. Notice was also given by publication, and a certificate of publication was filed in the trial court. Plaintiff purchased the property at the sale with a winning bid of $219,624.17, and later assigned the certificate of sale to the United States Department of Housing and Urban Development (HUD). The sheriff's report from the sale indicated that the money received was to be distributed as follows: $15 to the clerk of the court; $1,146.73 to the sheriff's office for various fees, commissions, and expenses; $25.75 to the recorder of deeds; and the remaining balance of $218,436.69 to plaintiff, which included attorney fees of $1,125 per the judgment of foreclosure and postjudgment advances of $1,006.55.

Plaintiff moved to confirm the sale and provided notice by mail to defendant, although there is no indication in the record as to whether that notice was received. On October 21, 2010, an order was entered confirming the sale and approving the disbursement of the proceeds as provided for in the sheriff's report. The order indicated that the trial court found that there was no surplus or deficiency from the sale and that the proceeds of the sale were sufficient to pay the amount due to plaintiff in full. The order also contained a Rule 304(a) finding that there was no just reason to delay enforcement or appeal of the ...


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