FIRST DIVISION
DECEMBER 26, 2006
No. 1-04-3470
DEUTSCHE BANK NATIONAL, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. )
)
ANTHONY BURTLEY, ) No. 02 CH 17665
)
Defendant-Appellant, )
) The Honorable
(Nenad Bozilovic and ) Aaron Jaffe,
Anthony Diaz, Intervening Appellees). ) Judge Presiding
JUSTICE GARCIA delivered the opinion of the court.
The plaintiff, Deutsche Bank National, filed its second
foreclosure action against the defendant, Anthony Burtley, on
September 27, 2002, in the Cook County circuit court. The
circuit court entered an order confirming the sale of Burtley’s
property on June 1, 2004. Burtley then filed an amended motion
to vacate, which the trial court denied. Burtley appeals,
contending the trial court erred when it denied his amended
motion to vacate without conducting an evidentiary hearing.
Burtley also contends that the trial court erred in confirming
the sale of the property because the trial court lacked personal
jurisdiction over him. For the following reasons, we affirm the
No. 1-04-3470
decision of the trial court.
BACKGROUND
On June 26, 2000, Burtley borrowed $180,000 on a mortgage of
his property at 4016 South Indiana Avenue, Chicago, Illinois,
from the Ames Fund Corporation. Deutsche Bank eventually
acquired the mortgage. In March 2001, Deutsche Bank filed a
foreclosure complaint regarding that mortgage. To avoid
foreclosure, on April 26, 2002, Burtley made a payment of
$47,587.14 for monthly payments due between October 2000 and
April 2002. On May 7, 2002, Burtley made his monthly payment in
the amount of $2,083.01, which was returned as not paid for
insufficient funds on May 15, 2002. On May 17, 2002, Burtley
made his monthly payment for May 2002 in the amount of $2,187.16,
including late fees. On June 17, 2002, Burtley made his monthly
payment on his mortgage for June 2002 in the amount of $3,104.00,
which was returned as not paid for insufficient funds on June 24,
2002.
On July 2, 2002, Deutsche Bank sent a "default letter" to
Burtley, notifying him of his missed payment for June 2002.
Burtley, however, made no further payments on the mortgage.
On September 27, 2002, Deutsche Bank filed a second
complaint for foreclosure under case number 02 CH 17665, which is
the subject of this appeal.
On December 17, 2002, the trial court entered an order
giving Anthony Burtley until January 14, 2003, to file an
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No. 1-04-3470
appearance and otherwise plead to the complaint. On January 21,
2003, with defendant Burtley appearing pro se, the court entered
and continued the plaintiff's motions for default and for
judgment of foreclosure.
On March 4, 2003, the trial court entered a default order
based on defendant Burtley's failure to plead to the foreclosure
complaint. The certificate of service filed on March 4, 2003,
shows Anthony R. Burtley was served on October 13, 2002. The
trial court also entered a judgment for foreclosure and sale with
an expiration date of July 5, 2003, of the rights of redemption.
On June 20, 2003, a notice of public sale was sent to
defendant Burtley, among others, that a sale of the foreclosure
property would proceed on July 7, 2003, with a judgment amount of
$215,477.31.
On July 3, 2003, defendant Burtley filed his "Emergency
Motion" to stay the sale of the property contending that he would
soon have the funds to satisfy the mortgage. The motion was
heard and denied on July 7, 2003. Thereafter, a second notice of
public sale was issued with a sale date of October 27, 2003. A
third notice of public sale was issued with a sale date of
February 9, 2004. On February 6, 2004, defendant Burtley filed a
motion to stay the sale contending that he had a buyer for the
property.
On February 9, 2004, the trial court entered an order
staying the sale and setting a status date of February 20, 2004,
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No. 1-04-3470
based on a real estate sale contract Burtley presented in open
court with a selling price of $301,000 and a closing date of
February 17, 2004. The order noted that defendant Burtley waived
republication of the sale. On February 20, 2003, an order was
entered continuing the stay through March 2, 2003, with a status
date of March 3, 2004, based on Burtley's representation that the
sale of the property had been reset to February 27, 2003. On
March 3, 2004, an order was entered staying the sale of the
property through March 11, 2003, with a status date of March 16,
2003, with defendant Burtley once again waiving republication of
the sale. On March 16, 2003, with defendant Burtley present, the
stay of the sale was continued to March 30, 2004, with a status
hearing on that date. This time defendant Burtley objected to
the waiving of the publication of sale notice.
On March 30, 2004, with defendant Burtley present, the trial
court denied any further stay of the sale and ordered that the
sale go forward on April 9, 2004, "as scheduled." The court
noted that the real estate sale contract defendant Burtley
presented on that date (apparently different from the one
presented on February 9, 2004) was for an amount "substantially
less" than the payoff amount.
On April 8, 2004, defendant Burtley filed a motion to stay
the sale of the property contending there was "no publication on
file." On April 9, 2004, the trial court denied the defendant's
motion and allowed the sale to go forward without republication.
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No. 1-04-3470
On April 28, 2004, defendant Burtley presented his motion to
vacate the sale of the property, which the trial court denied.
On June 1, 2004, the trial court entered an order approving
the foreclosure report of sale and distribution and an order of
possession.
On June 30, 2004, defendant Burtley filed a motion
contending that he was never properly served with the foreclosure
complaint and therefore the trial court did not have jurisdiction
over his person. The motion sought dismissal of the foreclosure
suit. In a second motion filed that same day, defendant Burtley
alleged that the purchaser at the sale wrongfully entered the
property on June 25, 2004, and he was damaged thereby.
On July 1, 2004, counsel filed an appearance on behalf of
Burtley along with a motion to vacate the confirmation of sale
order entered on June 1, 2004. On the same date, the trial court
entered an order granting counsel leave to file his appearance on
behalf of Burtley and denying his motion to dismiss based on a
lack of personal jurisdiction and his motion for damages based on
the allegedly wrongful entry to the property.
On July 15, 2004, Burtley's counsel on appeal was granted
leave to substitute his appearance for Burtley's initial counsel
and granted leave to file an amended motion to vacate the sale
with a ruling set for September 22, 2004. Through counsel,
Burtley filed his motion entitled "Amended Motion to Stay and
Vacate Order Confirming Sale and Possession" on August 4, 2004.
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No. 1-04-3470
In Deutsche Bank's response, filed on September 7, 2004, Deutsche
Bank asserted that Burtley had filed two bankruptcy petitions to
stave off the foreclosure, both of which were dismissed. Exhibit
K to Deutsche Bank's response is a "broker price opinion" setting
the market value of the property at $169,000 with a qualification
that it is "hard to determine repair cost without viewing
inside." Following the intervention of the buyer at the
foreclosure sale, a hearing was held October 1, 2004, on
Burtley's amended motion to vacate sale.
On October 29, 2004, the trial court entered an order
denying Burtley's motion to stay and vacate the order confirming
the sale and possession after "having heard oral argument and
considered all briefs presented" by the parties, ruling that it
found "no reason *** justice would require the sale to be
vacated."
On December 3, 2004, Burtley was granted leave to file a
late notice of appeal and "granted a stay of enforcement of
judgment and possession."
ANALYSIS
I. Standard of Review
We first address the parties’ disagreement concerning our
standard of review.
Deutsche Bank contends that the standard of review is
whether the trial court abused its discretion by failing to
promote substantial justice between the parties when it denied
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No. 1-04-3470
Burtley’s motion to vacate without an evidentiary hearing. In
support of its position, Deutsche Bank cites Mann v. Upjohn Co.,
324 Ill. App. 3d 367, 377 (2001), and Northern Trust Co. v.
American National Bank & Trust Co. of Chicago, 265 Ill. App. 3d
406, 412 (1994).
Burtley responds in his reply brief that this court should
review the trial court’s decision using either a de novo standard
of review or what he labels an "ends of justice" standard of
review. To support his position that we should apply a de novo
standard of review, Burtley states that a court applies a de novo
standard of review when the court reviews a motion to dismiss,
(Owens v. Midwest Tank & Manufacturing Co., 192 Ill. App. 3d
1039, 1042 (1989)), or a motion for summary judgment (Continental
Casualty Co. v. McDowell & Colantoni, Ltd., 282 Ill. App. 3d 236,
241 (1996)). To support his claim that we should apply an "ends
of justice" standard of review, Burtley cites to certain language
in Baltz v. McCormack, 66 Ill. App. 3d 76 (1978), and People ex
rel Reid v. Adkins, 48 Ill. 2d 402, 406 (1971).
We agree with Deutsche Bank. We review a trial court's
decision to deny a motion to vacate for an abuse of discretion.
In our review, we determine whether the trial court's decision to
deny a motion to vacate "was a fair and just result, which did
not deny [the moving party] substantial justice." Mann v.
Upjohn, 324 Ill. App. 2d at 377. A de novo standard of review
does not apply in this case because this case involves a motion
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No. 1-04-3470
to vacate, not a motion to dismiss or a motion for summary
judgment. We also question whether the language in Baltz and
Adkins relied upon by Burtley was meant to establish an "ends of
justice" standard of review as he contends. While the Baltz and
Adkins courts expressed an overriding concern on whether the
trial court's ruling did substantial justice between the parties,
we do not interpret the courts' use of that language as creating
a distinct standard of review. In the three cases cited by the
parties, review of the trial court's exercise of its discretion
was viewed in the context of whether each ruling did substantial
justice between the parties. This was the overriding concern in
ruling on the motion to set aside a default in Adkins, 48 Ill. 2d
at 406, and in Baltz, 66 Ill. App. 3d at 76-77, as it was in
Upjohn, 324 Ill. App. 3d at 377. But see Venzor v. Carmen's
Pizza Corp., 235 Ill. App. 3d 1053, 1057 (1992) ("trial court's
refusal to vacate a default judgment may be reversed because of a
denial of substantial justice or because of an abuse of
discretion" (emphasis in original)).
Therefore, under the facts presented here, we review the
trial court’s decision to deny Burtley's motion to vacate the
sale without an evidentiary hearing under an abuse of discretion
standard.
II. Motion to Vacate
Claims regarding foreclosure actions are governed by the
Illinois Mortgage Foreclosure Law (the Mortgage Law) (735 ILCS
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No. 1-04-3470
5/15-1501 et seq. (West 2004)). In 1987, the Illinois General
Assembly amended the prior Mortgage Law to its current form.
Section 15-1508(b) of the Mortgage Law (735 ILCS 5/15-1508(b)
(West 2004)) contains an express provision for hearings:
"(b) Hearing. Upon motion and notice in accordance with
court rules applicable to motions generally, which
motion shall not be made prior to sale, the court shall
conduct a hearing to confirm the sale. Unless the court
finds that (i) a notice required in accordance with
subsection (c) of Section 15-1507 [735 ILCS 5/15-1507]
was not given, (ii) the terms of sale were
unconscionable, (iii) the sale was conducted
fraudulently or (iv) that justice was otherwise not
done, the court shall then enter an order confirming
the sale."
The Illinois General Assembly intended this new language "to
create a new, but limited, level of inquiry" into foreclosure
sales. Resolution Trust Corp. v. Holtzman, 248 Ill. App. 3d 105,
114 (1993); see also Merchants Bank v. Roberts, 292 Ill. App. 3d
925, 931 (1997). The Illinois General Assembly did not, however,
intend to require an extended evidentiary hearing after each
sheriff’s sale. Holtzman, 248 Ill. App. 3d at 115; Roberts, 292
Ill. App. 3d at 931. While the provision provides for a hearing,
the extent of the hearing afforded a mortgagor is left to the
sound discretion of the circuit court. Holtzman, 248 Ill. App.
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3d at 115.
As best we can make out, Burtley contends that the trial
court erred in denying his motion to vacate without holding an
evidentiary hearing because during such a hearing he would have
been able to demonstrate that the terms of the sale were
unconscionable and that justice was not done between the parties.
As to the first contention, it appears to be based on the sale
price of $166,000 as opposed to the value he placed on the
property of "more than double what the third-party paid for the
property." His second contention appears to be based on his
claim that "Defendant has through affidavit contested the
judgment and sale of the property, stating that he was not in
default at the time Plaintiff initiated it[s] complaint and that
Plaintiff forced Defendant into default by falsely stating that
Defendant owed an additional $13,000 within 60 days after
Defendant tendered to Plaintiff $47,597.14."
In response, Deutsche Bank contends that the court should
affirm the trial court’s decision because Burtley's first claim
amounts to no more than a contention that the sale price was
insufficient, implicitly disputing Burtley's contention that the
terms of the sale were unconscionable. Deutsche Bank does not
respond to Burtley's second contention.
Based on the record before us as we have set out in the
Background section of this decision and the less-than-clear state
of Burtley's briefs, we find no reason to address at length
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No. 1-04-3470
Burtley's second contention. (The less-than-clear state of
Burtley's briefs also explains Deutsche Bank's failure to
specifically address this contention.)
In his affidavit, Burtley seeks to join the two foreclosure
proceedings to support his contention that justice was not done
between the parties. What occurred during the 2001 foreclosure
proceeding that resulted in a lump-sum payment by Burtley to
Deutsche Bank is not contained in the record before us. While
Burtley contends that during "an evidentiary hearing on
Defendant's motion to vacate, Defendant would have been able to
further substantiate the facts in his affidavit with testimony
and other evidence," there is a complete failure to set out what
"facts in his affidavit" he would be able to substantiate and
what would constitute the "other evidence" he claims he would
have been able to present. Nor does he tell us how those
"substantiated facts" or "other evidence" would have made a
difference in the outcome of this case. Burtley's bald
assertions strike us as reminiscent of his claims and the tactics
he employed during the two years the 2002 foreclosure complaint
was pending before the circuit court. There is an abject failure
in Burtley's brief to articulate an argument for reversal on this
basis with supporting authority as required by Supreme Court Rule
341(e)(7) (188 Ill. 2d R. 341(e)(7)). See In re Tinya W., 328
Ill. App. 3d 405 (2002). We need not address Burtley's second
contention any further.
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No. 1-04-3470
As to his first contention, Burtley seeks to place his claim
within the provision that a court may decline to confirm the sale
if "the terms of the sale [are] unconscionable." This provision
appears to be founded on the discretion the courts of equity long
have had. "[C]ourts have the discretion to disapprove a judicial
sale 'where the amount bid is so grossly inadequate that it
shocks the conscience of a court of equity.'" Holtzman, 248 Ill.
App. 3d at 113, quoting Levy v. Broadway-Carmen Building Corp.,
366 Ill. 279, 288 (1937). While a circuit court may decline to
confirm a sale if the terms of the sale are unconscionable, the
foreclosure price need not match the actual or estimated value of
the property. World Savings & Loan Ass'n v. Amerus Bank, 317
Ill. App. 3d 772, 780-81 (2000). "[M]ere inadequacy of price
alone is not sufficient cause for setting aside a judicial sale."
Illini Federal Savings & Loan Association v. Doering, 162 Ill.
App. 3d 768, 771 (1987). "This rule is premised on the policy
which provides stability and permanency to judicial sales and on
the well-established acknowledgment that property does not bring
its full value at forced sales and that the price depends on many
circumstances for which the debtor must expect to suffer a loss."
Amerus Bank, 317 Ill. App. 3d at 780.
In the current case, Burtley mortgaged his property in the
amount of $180,000 in 2000. Judgment of foreclosure was entered
in favor of Deutsche Bank in the amount of $215,193.31, of which
$179,118.02 was the principal balance. The property sold for
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No. 1-04-3470
$166,000 at the sheriff’s sale. Each party submitted conflicting
reports about the value of the property. Deutsche Bank submitted
a broker’s appraisal, valuing the property at $169,000. The
broker's appraisal dated January 7, 2004, was qualified by the
notation that the price was determined without "viewing inside."
Burtley, of course, had access to the interior of the building
and could have obtained an appraisal based on the exterior and
interior. Instead, Burtley submitted listing prices of
properties in the area without making a direct comparison between
those listings and the foreclosure property. In effect, Burtley
sought to rely on the listings without demonstrating that they
were "comparable" to the foreclosure property. Burtley also
submitted an affidavit stating that he valued his property at
twice the $166,000 it sold for at the foreclosure sale. Of
course, the issue is not what Burtley valued the property at, but
what a party was willing to pay at a foreclosure sale. At a
forced sale, a "debtor must expect to suffer a loss." Amerus
Bank, 317 Ill. App. 3d at 780.
We reject Burtley's contention that the sale price of the
property was so low as to warrant an evidentiary hearing. "To
determine the extent of the hearing to be afforded the mortgagor,
the court should look to the defendant's petition or motion, and
if there is an allegation of a current appraisal or other current
indicia of value which is so measurably different than the sale
price as to be unconscionable, then a hearing should be afforded
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No. 1-04-3470
the defendant." Holtzman, 248 Ill. App. 3d at 115. The
defendant offers no more than his opinion that the value of the
property was double the sale price. Of course, we are well aware
that the circuit court extended Burtley every reasonable
opportunity (and perhaps beyond) to sell the property outside
the foreclosure sale and he was unable to do so. The record
reveals that at one point Burtley presented a real estate sale
contract for a price "substantially less" than their mortgage
amount, which, if nothing else, undermines Burtley's self-serving
opinion at to the value of the property. His numerous empty
claims of being able to privately sell the property or of soon
having the funds to pay off the mortgage are also not lost on us.
The trial court was well within its sound discretion, in
determining that the hearing it afforded Burtley was all that he
was entitled to.
III. Personal Jurisdiction over Burtley
Without any factual support, Burtley contends that
"Plaintiff treated the subject foreclosure as if it were a
continuation of the prior complaint that had been dismissed as a
result of Defendant reinstating the loan." Deutsche Bank
responds that Burtley has waived the personal jurisdiction issue
on appeal because he failed to raise this issue in his notice of
appeal, he failed to preserve it in his motion to vacate sale, he
submitted himself to the trial court's jurisdiction by filing an
appearance and his amended motion to vacate sale, and he was duly
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No. 1-04-3470
served.
Burtley's notice of appeal only seeks reversal of "the order
entered on October 29, 2004, denying Petitioner's motion to
vacate confirmation of sale and possession" or, in the
alternative, a remand for further proceedings before the circuit
court. The order of October 29, 2004, did not address the
circuit court's exercise of jurisdiction over Burtley's person.
The "'appellate court has jurisdiction only of those matters
which are raised in the notice of appeal.'" Steinberg v. System
Software Associates, Inc., 306 Ill. App. 3d 157, 166 (1999),
quoting Lewanski v. Lewanski, 59 Ill. App. 3d 805, 815 (1978).
The issue of personal jurisdiction was not properly raised in the
notice of appeal.
Even if a liberal reading of the notice of appeal
(Steinberg, 306 Ill. App. 3d at 166) should lead us to a contrary
decision, by the time the circuit court denied Burtley's last
request for a stay (by our count his thirteenth appearance),
personal jurisdiction over Burtley was no longer a question. See
Pecoraro v. Kesner, 217 Ill. App. 3d 1039, 1043-44 (1991)
(conduct of party may invoke the court's jurisdiction).
Even if Burtley's pro se involvement in this case from
December 17, 2002, through June 30, 2004, was not sufficient to
invoke the circuit court's jurisdiction, upon counsel's filing of
the motions to vacate, without filing a motion to challenge
jurisdiction, "all objections to the court's jurisdiction over
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No. 1-04-3470
the party's person" were waived. 735 ILCS 5/2-301(a-5) (West
2004).
Even if waiver were not to be found, the certificate of
service in the record reflects that Burtley was duly served. In
his briefs, Burtley makes no direct challenge to this claimed
service.
On the record before us, the inexorable conclusion is that
the trial court properly exercised jurisdiction over Burtley.
CONCLUSION
For the foregoing reasons the judgment of the trial court is
affirmed and the previously entered stay is vacated.
Affirmed.
McBRIDE, P.J., and CAHILL, J., concur.
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