Court of Appeals of Illinois, First District, Fifth Division
CITIMORTGAGE, INC., Successor by Merger to ABN AMRO Mortgage Group, Inc., Plaintiff-Appellee,
ROBIN LEWIS, Defendant-Appellant (United States of America and Tierra Grande Courts Condominium Association II, Defendants)
As Corrected January 14, 2015.
Appeal from the Circuit Court of Cook County. No. 11 CH 30642. Honorable Alfred M. Swanson, Jr., Judge Presiding.
Vacated and remanded with directions.
For Appellant: Al Hofeld, Jr., Jeanne M. Charles, Law Offices of Al Hofeld, Jr., LLC, Chicago, IL.
For Appellee: Adam D. Grant, Dickinson Wright, Detroit, Michigan.
JUSTICE REYES delivered the judgment of the court, with opinion. Presiding Justice Palmer and Justice McBride concurred in the judgment and opinion.
[¶1] This appeal arises from a mortgage foreclosure action involving a property owned by defendant Robin Lewis. Defendant now appeals from the order of the circuit court of Cook County granting plaintiff CitiMortgage Inc.'s motion to confirm the sale and denying defendant's motion to set aside the sale. Defendant also appeals the circuit court's denial of her motion to reconsider those orders. On appeal, defendant asserts that the circuit court erred in failing to vacate the sale because: (1) she did not receive notice of the foreclosure sale; and (2) the property was sold in material violation of the Federal Housing Administration Home Affordable Modification Program's (FHA-HAMP) requirements. Defendant further contends that the circuit court erred in denying her requests for limited discovery or an evidentiary hearing on the aforementioned issues.
[¶2] For the reasons that follow, we vacate the circuit court's order of September 20, 2012, and remand the matter for the parties to conduct limited discovery and for the circuit court to hold an evidentiary hearing regarding whether the property was sold in material violation of the FHA-HAMP requirements.
[¶4] On August 30, 2011, plaintiff filed a mortgage foreclosure complaint alleging defendant was in default for failing to tender
the required mortgage payments on a property located at 19408 Hickory Place, Country Club Hills, as of May 1, 2011. The complaint also alleged that the subject mortgage loan was transferred from ABN AMRO Mortgage Group, Inc., to plaintiff, who was now the legal holder of the indebtedness.
[¶5] On September 29, 2011, defendant filed a pro se appearance and answer. On March 23, 2012, a judgment of foreclosure was granted in favor of plaintiff, which provided the property would be sold either at a sheriff's sale or at a judicial sale upon the expiration of the statutory period of redemption on June 23, 2012.
[¶6] On June 26, 2012, plaintiff filed a proof of service of the notice of the sale which stated:
" I, Andrew D. Schusteff, an attorney with Intercounty Judicial Sales Corporation, certify that I served a copy of the attached Notice of Sale by causing to be mailed a copy to the below named parties at the addresses listed below by depositing the same in the U.S. mail, with proper postage prepaid, at 120 West Madison Street, Chicago, Illinois 60602, at 5:00 p.m. on June 20, 2012."
The proof of service indicated a copy was mailed to " Robin Lewis 19408 Hickory Place Country Club Hills, IL 60478." The notice of sale stated the property would be sold at a judicial sale on July 2, 2012, at 11 a.m. The property was subsequently sold to plaintiff as the highest bidder.
[¶7] Plaintiff's Motion to Confirm the Sale and Defendant's Motion to Set Aside the Sale
[¶8] On July 13, 2012, plaintiff filed a motion to confirm the sale along with a report of sale and distribution, two publication notices, a receipt of the sale, a certificate of the sale, the notice of the sale, and a proof of service of the notice of the sale. The matter was set for presentation on July 27, 2012.
[¶9] On July 26, 2012, the Law Offices of Al Hofeld, Jr., LLC, filed an appearance on behalf of defendant as well as a " combined motion to set aside sale and to vacate the judgment entered on March 23, 2012." In her motion, defendant asserted she did not receive notice of the July 2, 2012, sale in violation of section 15-1507(c)(3) of the Illinois Mortgage Foreclosure Law (Foreclosure Law) (735 ILCS 5/15-1507(c)(3) (West 2012)). In addition, defendant stated that at the time of the sale she had applied for assistance " under the federal Making Home Affordable Program, and defendant's home was sold in material violation of the program's requirements for proceeding to a judicial sale" in violation of section 15-1508(d-5) of the Foreclosure Law (735 ILCS 5/15-1508(d-5) (West 2012)). Defendant also generally asserted that " justice was not otherwise done in violation of 735 ILCS 5/15-1508."
[¶10] On July 27, 2012, the circuit court entered a briefing schedule on plaintiff's motion to confirm the sale. Hearing on the motion was scheduled for September 14, 2012. The circuit court's order did not dispose of or set a briefing schedule on defendant's motion to set aside the sale.
[¶11] On August 24, 2012, defendant filed a " combined response to motion for confirmation and memorandum in support of her motion to set aside sale." Defendant set
forth two arguments. First, defendant argued the sale should be set aside pursuant to section 15-1508(c) of the Foreclosure Law because plaintiff did not forward her a notice of the sale nor did she receive a notice of the sale as required by section 15-1507(c)(3). In support of this contention, defendant attached an affidavit in which she claimed she had no knowledge of the sale until two weeks after it occurred. She further averred that she had resided at the property for 12 years, and during that time she had no issues receiving mail. Defendant attested that although she did not receive the notice of the sale, she received the notice of plaintiff's motion to confirm the sale.
[¶12] Second, defendant contended the sale must be set aside pursuant to section 15-1508(d-5) of the Foreclosure Law because she applied for assistance under the MHAP by submitting two applications for modification under the FHA-HAMP. In support of this contention, defendant averred in an affidavit that she submitted a complete FHA-HAMP application on March 12, 2012. She attached to that affidavit a copy of her application. She did not attach her personal tax returns for the years 2009 and 2010, current homeowners' association statements, two recent pay stubs for each of her two jobs, her utility bills, and her two most recent bank statements; however, she did forward these documents to plaintiff. Defendant attested that after being informed by plaintiff that her application had been closed, " On March 23, 2012, I resubmitted my complete HAMP application (Exhibit 1). In addition to the documents attached in Exhibit 1, I submitted the current versions of the documentation listed above that had since expired, including my pay stubs for each of my two jobs and my two most recent bank statements." Defendant further stated that, " In the third week of May 2012, I received two letters from CitiMortgage ...