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Beal Bank v. Barrie

Court of Appeals of Illinois, First District, Second Division

February 17, 2015

BEAL BANK, Plaintiff-Appellee,
v.
ROSA BARRIE, Defendant-Appellant (LPP Mortgage, Ltd., Plaintiff)

Appeal from the Circuit Court of Cook County. No. 12 CH 41250. Honorable Darryl B. Simko, Judge Presiding.

SYLLABUS

On defendant's appeal from orders of the trial court denying her motion under section 2-1301 of the Code of Civil Procedure to vacate a default judgment in a mortgage foreclosure action and the confirmation of a judicial sale based on her arguments that plaintiff mortgagor failed to send a grace period notice in compliance with section 15-1502.5 of the Illinois Mortgage Foreclosure Law, lacked standing to bring the suit, and did not have subject matter jurisdiction, the trial court's judgment was affirmed, since defendant did not raise her grace period defense until a month after plaintiff filed its motion to confirm the sale, she did not participate in her own case, she did not demonstrate any fraud or misrepresentation that prevented her from raising her defenses earlier, the alleged lack of grace period notice did not satisfy the grounds of section 15-1508(b) of the Act, and defendant's untimely standing claim was waived.

Rosa Barrie, Appellant, Pro se.

For APPELLEE: Codilis & Associates, P.C., of Burr Ridge (Louis J. Manetti, Jr., of counsel).

JUSTICE LIU delivered the judgment of the court, with opinion. Presiding Justice Simon and Justice Neville concurred in the judgment and opinion.

OPINION

LIU, JUSTICE.

Page 199

[¶1] Defendant, Rosa Barrie (Barrie), pro se, appeals from orders of the circuit court of Cook County denying her motion under section 2-1301 of the Code of Civil Procedure (735 ILCS 5/2-1301 (West 2012)) to vacate a default judgment in a mortgage foreclosure action and confirming the judicial sale. In her motion to vacate, Barrie argued that plaintiff, LPP Mortgage, Ltd. (LPP), failed to send a grace period notice in compliance with section 15-1502.5 of the Illinois Mortgage Foreclosure Law (Foreclosure Law) (735 ILCS 5/15-1502.5 (West 2012)) and lacked standing to bring the suit. She also raises the argument, on appeal, that the circuit court lacked subject matter jurisdiction. We affirm.

[¶2] BACKGROUND

[¶3] In October 2002, Barrie executed a promissory note and mortgage on a residential property in favor of the lender and grantee, New Century Mortgage Corporation

Page 200

(New Century).[1] LPP subsequently acquired the note and mortgage. On November 14, 2012, LPP filed the underlying action, alleging that Barrie had defaulted on her monthly payment obligations under the note as of May 1, 2012. The City of Country Club Hills was named as a defendant for purposes of determining the priority of any subordinate liens against the property.

[¶4] Barrie appeared in court on January 14, 2013 for the initial case management status hearing. She was given until February 11, 2013 to file her appearance and to answer or otherwise plead. Barrie failed to file either an appearance or any pleading until after the judicial sale of the subject property.

[¶5] A. Default Order and Judgment of Foreclosure and Sale

[¶6] LPP filed a motion for default and judgment of foreclosure and sale on February 11, 2013. On March 8, 2013, the court entered an order of default against Barrie and the City of Country Club Hills and a judgment of foreclosure and sale. The judgment was based upon the amounts stated in LLP's prove-up affidavit, which was attached to the motion. Barrie was given 90 days from the date of the judgment to exercise her right of redemption.

[¶7] B. Motion to Confirm Sale

[¶8] The property was sold at a judicial sale on September 3, 2013. Beal Bank, as the assignee of LPP's interests in the note and mortgage, made a full credit bid and purchased the property.[2] On September 11, Beal Bank filed its motion to confirm the sale.

[¶9] Five days before the scheduled hearing on the motion to confirm the sale, Barrie's attorney filed his appearance in the case. According to the record, counsel's appearance was filed on September 26, 2013. However, a copy of the appearance was not served on Beal Bank's counsel until ...


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