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CitiMortgage, Inc. v. Adams

Court of Appeals of Illinois, Fifth District

July 20, 2015

CITIMORTGAGE, INC., Plaintiff-Appellee,
v.
LEONARD W. ADAMS and KIMBERLY A. ADAMS, Defendants-Appellants

Appeal from the Circuit Court of St. Clair County. No. 11-CH-1035. Honorable Stephen P. McGlynn, Judge, presiding.

For Appellants: Anthony R. Garavalia, Flynn Guymon & Garavalia, Belleville, IL.

For Appellee: Adam D. Grant, Dickinson Wright, Detroit, MI.

Cates, Presiding Justice and Chapman, Justice concurred in the judgment and opinion.

OPINION

GOLDENHERSH, JUSTICE.

[¶1] This is an appeal involving a residential mortgage foreclosure action. Plaintiff, CitiMortgage, Inc., alleges defendants, Leonard Adams and Kimberly Adams, failed to make monthly installment payments

Page 379

for principal, taxes, and interest pursuant to a mortgage. As a result of defendants' alleged failure to make payments, plaintiff filed a complaint to foreclose mortgage in the trial court. The trial court confirmed the foreclosure sale and later denied defendants' two separate motions to reconsider.

[¶2] Defendants now appeal the trial court's order in favor of plaintiff and against defendants approving the foreclosure sale, and appeal the trial court's order denying defendants' motions to reconsider. Defendants allege the trial court abused its discretion when it confirmed the foreclosure sale.

[¶3] Prior to the foreclosure sale, defendants assert they applied for assistance under the Home Affordable Modification Program (HAMP), a component of the Making Home Affordable Program established by the United States Department of the Treasury pursuant to the Emergency Economic Stabilization Act of 2008, as amended by the American Recovery and Reinvestment Act of 2009, and, therefore, the trial court should have set the sale aside. 735 ILCS 5/15-1508(d-5) (West 2012). Defendants also allege the subject real estate was sold in material violation of HAMP, and plaintiff should have been required to comply with the HAMP requirements. 735 ILCS 5/15-1508(d-5) (West 2012).

[¶4] Plaintiff maintains this appeal is the first time in this case defendants have sought relief under section 15-1508(d-5) of the Illinois Mortgage Foreclosure Law (735 ILCS 5/15-1508(d-5) (West 2012)), and, therefore, they did not properly preserve the issue for appeal. Alternatively, plaintiff alleges defendants did not satisfy the requirements of section 15-1508(d-5) because they failed to bring a timely motion in the trial court and failed to prove the statute's required elements by a preponderance of the evidence. Therefore, plaintiff contends, the trial court did not abuse its discretion when it confirmed the foreclosure sale, and its decision should be affirmed.

[¶5] Plaintiff and defendants disagree about whether defendants applied for assistance under HAMP prior to the foreclosure sale. The trial court was not informed that defendants had applied for assistance under HAMP prior to confirmation of the foreclosure sale, and should have been made aware of this information before determining whether to confirm the foreclosure sale. We reverse and remand for further proceedings.

[¶6] BACKGROUND

[¶7] On October 10, 2011, plaintiff filed a complaint to foreclose mortgage under the Illinois Mortgage Foreclosure Law alleging inter alia that defendants failed to pay monthly installments for principal, taxes, interest, and insurance pursuant to a mortgage dated March 18, 2005, on defendants' single-family residence and the note secured by that residence. 735 ILCS 5/15-1101 (West 2012). On March 23, 2012, defendants filed their answer to plaintiff's complaint to foreclose mortgage. Plaintiff subsequently filed a motion for summary judgment on May 3, 2012. 735 ILCS 5/2-1005 (West 2012).

[¶8] On May 24, 2012, the circuit court granted plaintiff's motion for summary judgment and entered a judgment of foreclosure and sale. That same date, plaintiff filed its motion for order approving report of sale and distribution. On August 13, 2012, plaintiff filed a notice indicating a foreclosure sale would take place on August 28, 2012. On October 4, 2012, the court entered an order approving report of sale and distribution, confirming sale and order of possession.

Page 380

[¶9] On November 2, 2012, defendants filed their first motion to reconsider and for other relief asking the court to set aside the foreclosure sale, alleging defendants had previously applied for assistance under HAMP and that defendants were waiting for a decision to be made regarding their application. Regarding defendants' application for assistance, plaintiff informed defendants on two separate dates, July 7, 2012, and July 9, 2012, that it would take approximately 30 days for plaintiff to review defendants' application that was filed in May 2012. On August 29, 2012, plaintiff informed defendants that their May 2012 application could no longer be used because the dates in the application were expired, and requested defendants file a new application. This August 29, 2012, request concerning defendants' application was delivered by plaintiff in response to defendant Leonard Adams' request for an update on the status of defendants' application made on August 27, 2012.

[¶10] The court took defendants' motion to reconsider under advisement after argument on the matter. On November 26, 2012, an order was entered that stated the following:

" Plaintiff failed to properly and timely respond to Defendants['] request to participate in a foreclosure prevention program ***. *** Plaintiff to complete review of Defendants['] request to participate in foreclosure prevention program and ...

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