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DLJ Mortg. Capital, Inc. v. Frederick

Court of Appeals of Illinois, First District, Second Division

May 27, 2014

DLJ MORTGAGE CAPITAL, INC., Plaintiff-Appellee,
v.
CALVITA J. FREDERICK, Defendant-Appellant

Appeal from the Circuit Court of Cook County. No. 06 CH 2321. Honorable Darryl Simko, Judge Presiding.

SYLLABUS

In mortgage foreclosure proceedings, the trial court's judgment of foreclosure and the order approving and confirming the foreclosure sale of defendant's residence were upheld where defendant did not challenge the order confirming the sale on appeal or allege fraud, but alleged that plaintiff lacked standing to bring the foreclosure action, and such a claim was untimely and not permitted at that stage of the proceedings.

For Appellant: David W. Hepplewhite, of counsel, David W. Hepplewhite, P.C., Chicago, IL.

For Appellee: Michael J. Weik, of counsel, Smith & Weik LLC, Oak Park, IL.

PRESIDING JUSTICE HARRIS delivered the judgment of the court, with opinion. Justices Pierce and Liu concurred in the judgment and opinion.

OPINION

HARRIS, PRESIDING JUSTICE

Page 779

[¶1] Defendant, Calvita J. Frederick, appeals the order of the circuit court granting summary judgment in favor of plaintiff, DLJ Mortgage Capital, Inc. (DLJ), on plaintiff's foreclosure complaint. On appeal, Ms. Frederick challenges the merits of the foreclosure complaint rather than the confirmation of sale pursuant to the Illinois Mortgage Foreclosure Law (735 ILCS 5/15-1507(c) (West 2010)) (Foreclosure Law). She does not challenge the trial court's determination that the sale proceeded properly. For that and the following reasons, we affirm.

[¶2] JURISDICTION

[¶3] The trial court granted summary judgment and entered a judgment of foreclosure on February 6, 2007. On September 24, 2012, the trial court entered an order approving and confirming the sale and order of possession. Ms. Frederick filed a motion to vacate the order of possession which was denied on October 23, 2012. She filed her notice of appeal on October 24, 2012. This court has jurisdiction pursuant to Illinois Supreme Court Rules 301 and 303 governing appeals from final judgments entered below. Ill. S.Ct. R. 301 (eff. Feb. 1, 1994); R. 303 (eff. May 30, 2008).

[¶4] BACKGROUND

[¶5] DLJ filed a complaint to foreclose a mortgage against Ms. Frederick and other defendants not pertinent in this appeal, on February 3, 2006. In its complaint, DLJ alleged that it was the legal holder or agent or nominee of the legal holder of the indebtedness and the owner or agent or nominee of the mortgage given as security for the indebtedness. The mortgage and note were executed by American National Bank & Trust Company of Chicago, and the note was endorsed in blank. On May 1, 2006, the trial court entered an order of default against Ms. Frederick and a judgment of foreclosure and sale against all defendants. Ms. Frederick's attorney filed a motion to vacate the judgment of foreclosure and sale, and the trial court vacated the judgment on June 7, 2006. On July 31, 2006, Ms. Frederick filed an answer to DLJ's foreclosure complaint in which she stated that she has insufficient information and therefore neither admits nor denies that DLJ is the legal holder, agent or nominee of the legal holder of the indebtedness, or that DLJ is the owner or agent or nominee of the owner of the mortgage.

[¶6] DLJ filed a motion for summary judgment and attached as support the supplemental affidavit of Jeannelle Gray, along with a copy of the note indorsed in blank. Gray's affidavit stated in part that DLJ was the current holder and owner of the note and mortgage, that the 2004 assignment of the mortgage was to Fairbanks as ...


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