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In Your Court: Borrower rights restricted in vacating default judgments of foreclosure

Published: Friday, Jan. 24, 2014 1:21 p.m. CST

The Illinois Supreme Court recently ruled that the Illinois Mortgage Foreclosure Law takes precedent over the Illinois Code of Civil Procedure after a motion to confirm a judicial sale is filed with the clerk of the circuit court.

Therefore, the borrower may only vacate a default judgment of foreclosure under four grounds after the filing of said motion:

1. Because the mortgagee did not give notice to the mortgagor;

2. Because the terms of the judicial sale were unconscionable;

3. Because the judicial sale was conducted fraudulently;

4. Because justice was not otherwise done.

Simplified fact pattern:

Buyer bought a home in 2009. To buy the home, Buyer obtained a mortgage from the mortgagee. Buyer and Mortgagee executed a mortgage in the amount of $330,000. Buyer promised to make monthly mortgage payments on the mortgage until paid in full.

In 2010, Buyer lost her job and could not make her mortgage payments. Mortgagee filed its complaint to foreclose mortgage in July 2010. Buyer was then served with the summons at the end of July.

Buyer did not file an appearance or an answer in this case. As a result thereof, in October 2010, the court granted Mortgagee an order of default and judgment of foreclosure.

In May 2011, Mortgagee held a judicial sale. Mortgagee purchased the home at the judicial sale for $236,000 and later filed a motion to confirm the judicial sale. Buyer then filed a motion to vacate the default judgment under the Code of Civil Procedure, and for the first time, alleged that a requirement for the judgment, Mortgagee’s affidavit, was not proper.

The Code of Civil Procedure provides more lenient criteria to vacate a default judgment. However, the Illinois Mortgage Foreclosure Law has much stricter criteria. It states that an order confirming a judicial sale shall be entered unless:

1. The mortgagee did not provide the mortgagor of notice;

2. The judicial sale terms were unconscionable;

3. The judicial sale was conducted fraudulently;

4. Because justice was not otherwise done.

Ultimately, the Illinois Supreme Court held that the Code of Civil Procedure is applicable up to the filing of the motion to confirm a judicial sale, and thereafter, the Illinois Mortgage Foreclosure law controls in regard to vacating a default judgment of foreclosure.

The case is Wells Fargo, N.A. v. McClusky, 2013 IL 115469.

• Anthony Scifo is a resident of Kane County and an associate attorney with Shaw, Jacobs, Goostree and Associates P.C. in St. Charles, where he concentrates in divorce and family law, personal injury and wrongful death. His goal with this occasional column is to help educate the public regarding the court system and the law. Contact him with general legal questions at editorial@kcchronicle.com.

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