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CitiMortgage, Inc. v. Moran

Court of Appeals of Illinois, First District, Fifth Division

August 29, 2014

CITIMORTGAGE, INC., as Assignee of Union Federal Bank of Indianapolis, Plaintiff-Appellee,
v.
JOHN B. MORAN, Defendant-Appellant, John J. Reid III, Camille Reid, and the United States of America, Defendants

Page 51

Appeal from the Circuit Court of Cook County. No. 10 CH 41637. The Honorable Jesse G. Reyes, Judge Presiding.

Affirmed.

SYLLABUS

In a mortgage foreclosure action, the trial court did not abuse its discretion by entering a default judgment against defendant while his motion to dismiss was pending but never set for a hearing, denying his motion to reconsider and to vacate the order of default, and in confirming the foreclosure sale and denying defendant's motion to vacate the confirmation, since the record showed defendant failed to exercise diligence, he had no meritorious claims, and plaintiff suffered substantial hardship as a result of defendant's unreasonable protraction of the litigation.

Theodore A. Woerthwein, John Miller, and Ashley Schwartz, all of Woerthwein & Miller, of Chicago, for appellant.

Ira T. Nevel and Greg Elsnic, both of Law Offices of Ira T. Nevel, LLC, of Chicago, for appellee.

PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion. Justices Palmer and Taylor concurred in the judgment and opinion.

OPINION

Page 52

GORDON, PRESIDING JUSTICE

[¶1] CitiMortgage, Inc., filed a complaint against John B. Moran (Moran)[1] John J. Reid III, and Camille Reid, seeking to foreclose a mortgage after they failed to make payments due on a note given in exchange for a loan from Union Federal Bank of Indianapolis (Bank). Basically, Moran argues that CitiMortgage did not produce a valid assignment of the note and mortgage, and claims that the trial court: (1) " lacked the discretion to enter an order of default against Moran when Moran had a pending motion to dismiss" ; (2) erred by

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not vacating the order of default; and (3) erroneously confirmed the sale and refused to vacate the confirmation of the sale. For the following reasons, we affirm.

[¶2] BACKGROUND

[¶3] Moran filed in his brief before this court a half-page statement of facts giving the dates that he filed a motion to dismiss, that CitiMortgage presented its motions for a default order and to deny Moran's motion to dismiss, that the order of default was entered, that Moran filed a motion to vacate and the trial court denied the motion, that the trial court confirmed the sale, and that the trial court denied Moran's motion to reconsider the confirmation of the sale. Moran failed to provide this court with a transcript of proceedings or a bystander's report. CitiMortgage in its reponse brief filed no statement of facts. The background of this case will be taken from the complaint filed by CitiMortgage and the pleadings.

[¶4] On August 24, 2001, the Reid defendants and Moran borrowed $281,327 from the bank secured by a mortgage on residential property. The bank assigned the note and mortgage to a nominee of CitiMortgage, Inc.

[¶5] On September 24, 2010, CitiMortgage filed a complaint to foreclose the mortgage against defendants alleging that they were in default in the amount of $243,363.18 in unpaid principal and interest. The complaint states that a " copy of the assignment of the Mortgage and Note is attached." In the record on appeal, there is an assignment of the note and mortgage from the bank to a nominee of CitiMortgage, all of which was attached to the complaint. The assignment states that Union Federal Bank " does convey, grant, sell, assign, transfer and set over the described mortgage/deed of trust together with certain note(s) described therein" to Mortgage Electronic Registration Systems, Inc., " as nominee for CitiMortgage."

[¶6] On December 21, 2010, CitiMortgage filed a motion for an order of default against defendants for their failure to appear or otherwise plead. However, the record on appeal does not contain a resolution of that motion.

[¶7] On June 30, 2011, CitiMortgage filed another motion for an order of default against defendants for their failure to appear or otherwise plead. Moran was granted until August 15, 2011, to file an appearance, answer or otherwise plead, but he did not file his appearance until August 17, 2011, and did so without leave of court.

[¶8] On August 19, 2011, Moran filed a motion to dismiss the foreclosure complaint for lack of standing pursuant to section 2-619 of the Illinois Code of Civil Procedure (735 ILCS 5/2-619 (West 2010)), claiming that (1) CitiMortgage did not loan money to him and (2) that he received no assignment from Union Federal Bank because CitiMortgage did not have a valid assignment. However, Moran did not set the motion for a hearing.

[¶9] On March 9, 2012, CitiMortgage moved for a hearing on Moran's motion to dismiss, claiming that Moran failed to call his motion for hearing within the designated time period under Rule 2.3 of the circuit court of Cook County rules. Rule 2.3 of the circuit court of Cook County places " [t]he burden of calling for hearing any motion previously filed *** on the party making the motion. If any such motion is not called for hearing within 90 days from the date it is filed, the court may enter an order overruling or denying the motion by reason of the delay." Cook Co. Cir. Ct. R. 2.3 (eff. July 1, 1976).

[¶10] On May 4, 2012, the trial court entered an order of default against defendants

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and entered an order of foreclosure and sale. The record contains no evidence that Moran's motion ...


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