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Wells Fargo Bank, N.A. v. Sanders

Court of Appeals of Illinois, First District, Fifth Division

May 22, 2015

WELLS FARGO BANK, N.A., as Trustee, Plaintiff-Appellee,
PHILLIP SANDERS, Defendant-Appellant

Page 841

[Copyrighted Material Omitted]

Page 842

Appeal from the Circuit Court of Cook County. No. 11 CH 40914. Honorable Lisa A. Marino, Judge Presiding.


For APPELLANT: Margaret A. Lundahl.

For APPELLEE: Ralph T. Wutscher, Jeffrey T. Karek, McGinnis Wutscher LLP.

JUSTICE REYES delivered the judgment of the court, with opinion. Justice McBride concurred in the judgment and opinion. Justice Gordon dissented, with opinion.


REYES, Judge

Page 843

[¶1] Defendant Phillip Sanders appeals from the circuit court of Cook County's order dismissing his petition brought pursuant to section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2012)). On appeal, defendant contends that: (1) his petition was not ripe for adjudication under People v. Laugharn, 233 Ill.2d 318, 909 N.E.2d 802, 330 Ill.Dec. 780 (2009); (2) the court lacked personal jurisdiction to enter the judgment of foreclosure; and (3) the circuit court erred in dismissing his petition on the merits. For the following reasons, we affirm the judgment of the circuit court.


[¶3] This matter commenced as a mortgage foreclosure action pursuant to the Illinois Mortgage Foreclosure Law (Foreclosure Law) (735 ILCS 5/15-1501 et seq. (West 2012)). Plaintiff, Wells Fargo Bank, N.A., filed a complaint on November 30, 2011, alleging defendant was in default in the amount of $148,682.71 for failing to pay his mortgage on the property located at 9821 South Aberdeen Street in Chicago. On December 4, 2011, defendant was served by substitute service on John Sanders at 6629 South Bishop Street in Chicago.

[¶4] On May 8, 2012, plaintiff presented its motion for default judgment of foreclosure. Defendant appeared in court and plaintiff withdrew its motion, as the circuit court granted defendant 28 days to file his appearance and answer or otherwise plead. Defendant, however, did not do so, and on July 24, 2012, a default judgment of foreclosure was entered by the circuit court.

[¶5] On August 23, 2012, defendant, through counsel, filed a " motion to reconsider

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and vacate the prior judgment." The notice of motion provided in the record did not include a date when defendant would present the motion nor did it indicate under which section of the Code the motion was being brought. In addition, only two pages of this motion are contained in the record on appeal; one includes the prayer for relief, the other consists of the attorney's verification. According to the two-page document submitted, defendant requested the court to vacate the default judgment on the basis that counsel was late to court the day the judgment was entered. Defendant's counsel also requested leave to file his appearance and answer. Attached to defendant's motion was a file stamped copy of the answer, which contained general denials along with an assertion that plaintiff lacked standing and that defendant was not properly served with summons. The record does not contain an order disposing of the motion. The record also does not contain an order granting defense counsel leave to file his appearance or answer.

[¶6] On October 25, 2012, the property was sold to plaintiff as the highest bidder at the judicial sale. Plaintiff presented its motion to confirm the sale. On November 27, 2012, defendant contested the order approving the sale and the circuit court entered a briefing schedule and set the matter for hearing on January 8, 2013. The hearing for the confirmation of the sale was continued to March 15, 2013, to allow plaintiff time to file its reply. Thereafter, on March 15, 2013, the circuit court entered the order approving the sale. None of the briefs pertaining to the confirmation of the sale are included in the record on appeal.

[¶7] On April 1, 2013, defendant filed a " motion to reconsider and vacate the prior judgment order" entered on March 15, 2013. Defense counsel asserted that on the morning of March 15, 2013, he was hospitalized as a result of an automobile accident and, therefore, did not appear in court. Defendant requested " this court *** reconsider this matter and give the Defendant an opportunity to present his motion; to vacate the judgment and save his home." The notice of motion again failed to include a date when defendant would present the motion to reconsider.

[¶8] However, on June 4, 2013, the circuit court entered an order continuing defendant's motion to reconsider to July 17, 2013, due to the fact defendant failed to provide the court with a courtesy copy of the motion. On July 17, 2013, defendant withdrew his motion to reconsider with leave to refile. According to the record, defendant never refiled the motion to reconsider. Thereafter, defendant filed numerous pro se motions; however, only defendant's section 2-1401 petition filed March 31, 2014, is pertinent to this appeal.

[¶9] Defendant filed his section 2-1401 petition on March 31, 2014, with the aid of an attorney. The petition sought vacatur of the default judgment of foreclosure and any orders dependent on that order. It alleged that: (1) he did not receive service of process; (2) plaintiff lacked standing; (3) the circuit court failed to rule on a pending motion in violation of section 2-1203 of the Code (735 ILCS 5/2-1203 (West 2012)); (4) there was a wrongful eviction; and (5) the affidavit filed in support of the judgment of foreclosure was insufficient. The petition further requested a preliminary injunction preventing his eviction from the property while the matter was pending. The record does not demonstrate that the petition was ever scheduled to be presented before the court; however, the circuit court's written memorandum indicates that the matter was " styled as an 'emergency' motion and

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spindled on the Court's 10:00 default call on April 15, 2014."

[¶10] Attached to the petition was a notarized affidavit from defendant in which he averred that since 2006 he had resided at 9821 South Aberdeen in Chicago with his wife and " other relatives." The " house at 6629 S. Bishop in the city of Chicago belongs to my mother and no one named John Sanders lives there." He further stated that in 2011 he hired an attorney to assist in the foreclosure case, and on August 23, 2012, the attorney filed a motion to vacate the July 24, 2012 default order and that motion was never ruled upon. Defendant also attested that one of Plaintiff's agents attempted to evict him and changed ...

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