Digitally signed by
Illinois Official Reports Reporter of Decisions
Reason: I attest to the
accuracy and integrity of
this document
Appellate Court Date: 2016.02.09
11:00:18 -06'00'
U.S. Bank Trust, N.A. v. Atchley, 2015 IL App (3d) 150144
Appellate Court U.S. BANK TRUST, N.A., As Trustee for LSF9 Master Participation
Caption Trust, Plaintiff-Appellant, v. BREANNA D. ATCHLEY,
UNKNOWN OWNERS, and NONRECORD CLAIMANTS,
Defendants-Appellees.
District & No. Third District
Docket No. 3-15-0144
Rule 23 order filed October 9, 2015
Motion to
publish allowed November 17, 2015
Opinion filed November 17, 2015
Decision Under Appeal from the Circuit Court of Peoria County, No. 14-CH-2; the
Review Hon. James A. Mack, Judge, presiding.
Judgment Vacated in part.
Cause remanded with instructions.
Counsel on Louis J. Manetti, Jr., of Codilis & Associates, P.C., of Burr Ridge, for
Appeal appellant.
Breanna D. Atchley, of Granite City, appellee pro se.
Panel PRESIDING JUSTICE McDADE delivered the judgment of the
court, with opinion.
Justices Carter and O’Brien concurred in the judgment and opinion.
OPINION
¶1 Plaintiff, U.S. Bank Trust, N.A., filed a complaint to foreclose mortgage against defendant,
Breanna D. Atchley, and was subsequently granted a judgment for foreclosure and sale.
Following the sale, plaintiff moved to confirm the sale. The court granted plaintiff’s motion in
part but denied plaintiff’s request for an in personam deficiency judgment. Plaintiff appeals
that denial. We vacate the trial court’s order in part and remand with instructions.
¶2 FACTS
¶3 On January 2, 2014, plaintiff filed a complaint to foreclose mortgage against defendant.
The complaint alleged that defendant continued to owe $48,325.73 on the note and mortgage,
with interest accruing on the note at $7.28 per diem. Among plaintiff’s requests for relief in the
complaint was “[a] personal judgment for deficiency, if applicable and sought, and only
against parties who have signed the Note.” Attached to the complaint were the note and
mortgage, each of which were signed by defendant.
¶4 Defendant did not file an answer to the complaint, nor did she otherwise appear. Plaintiff
subsequently filed a motion for default judgment and a motion for judgment for foreclosure
and sale. On April 21, 2014, the trial court granted plaintiff’s motions. The written order stated:
“If the proceeds of the sale are not sufficient to satisfy those sums due the Plaintiff, the
Court shall enter a personal deficiency judgment pursuant to 735 ILCS 5/15-1508(e)
providing that the Court finds that it has personal jurisdiction over the parties
personally liable on the note and that said liability has not been discharged in
bankruptcy.”
¶5 The judicial sale occurred on January 5, 2015. The sheriff’s report of sale and
distribution–filed that same day–indicated that, at that time, plaintiff owed defendant
$60,462.29. The amount bid at sale was $35,644.62, resulting in a deficiency of $24,817.57.
¶6 The court confirmed the sale on January 26, 2015. In the confirmation of sale, the court
ordered an in rem deficiency judgment in the amount of $24,817.57. Handwritten on the
otherwise typed order, next to the in rem deficiency judgment, is the following: “Plaintiff [sic]
request for an in personam judgment is denied without further documentation.”
¶7 ANALYSIS
¶8 On appeal, plaintiff contends that the trial court erred in denying its request for an
in personam deficiency judgment. Specifically, plaintiff argues that it fulfilled each of the
criteria required to receive an in personam deficiency judgment under the Illinois Mortgage
Foreclosure Law (Foreclosure Law) (735 ILCS 5/15-1101 et seq. (West 2012)). We agree.
¶9 At the outset of our analysis, we note that defendant has not filed a brief on appeal. Our
supreme court has held that the failure of an appellee to file a brief does not mandate pro forma
reversal, as “[a] considered judgment of the trial court should not be set aside without some
-2-
consideration of the merits of the appeal.” First Capitol Mortgage Corp. v. Talandis
Construction Corp., 63 Ill. 2d 128, 131 (1976). Instead:
“[I]f the record is simple and the claimed errors are such that the court can easily decide
them without the aid of an appellee’s brief, the court of review should decide the merits
of the appeal. In other cases if the appellant’s brief demonstrates prima facie reversible
error and the contentions of the brief find support in the record the judgment of the trial
court may be reversed.” Id. at 133.
¶ 10 Mortgage foreclosures, judicial sales, and deficiency judgments are all governed by the
Foreclosure Law. 735 ILCS 5/15-1101 et seq. (West 2012). Section 15-1508(e) of the
Foreclosure Law, entitled “Deficiency Judgment,” stipulates as follows:
“In any order confirming a sale pursuant to the judgment of foreclosure, the court shall
also enter a personal judgment for deficiency against any party (i) if otherwise
authorized and (ii) to the extent requested in the complaint and proven upon
presentation of the report of sale in accordance with Section 15-1508. Except as
otherwise provided in this Article, a judgment may be entered for any balance of
money that may be found due to the plaintiff, over and above the proceeds of the sale or
sales, and enforcement may be had for the collection of such balance, the same as when
the judgment is solely for the payment of money. Such judgment may be entered, or
enforcement had, only in cases where personal service has been had upon the persons
personally liable for the mortgage indebtedness, unless they have entered their
appearance in the foreclosure action.” 735 ILCS 5/15-1508(e) (West 2012).
¶ 11 The word “shall,” as used in the Foreclosure Law, means mandatory, rather than
permissive. 735 ILCS 5/15-1105(b) (West 2012). Indeed in any statute, the word “shall”
ordinarily imposes an imperative duty. Lohr v. Havens, 377 Ill. App. 3d 233, 236 (2007).
Accordingly, a trial court must grant an in personam deficiency judgment in favor of a plaintiff
under section 15-1508(e) of the Foreclosure Law when the requirements set forth in that
section are met.
¶ 12 In the present case, plaintiff sought an in personam deficiency judgment against defendant
in the original complaint. The complaint listed defendant as the person personally liable for
any deficiency, and plaintiff attached the note and mortgage, both signed by defendant.
Additionally, defendant was personally served in the case, vesting the trial court with
in personam jurisdiction over defendant. See J.C. Penney Co. v. West, 114 Ill. App. 3d 644,
646 (1983). Finally, the deficiency, totaling $24,817.57, was proven upon the presentation of
the sheriff’s report of sale.
¶ 13 Neither section 15-1508(e) nor section 15-1504(f) (governing requests for deficiency
judgments in complaints) of the Foreclosure Law expressly considers the effect of bankruptcy
on the court’s authorization to grant an in personam deficiency judgment. However, we
recognize that the trial court’s judgment for foreclosure stipulated that such a deficiency
judgment would be granted only where defendant’s “liability has not been discharged in
bankruptcy.” Although the trial court’s requirement for “further documentation” was
ambiguous, we consider the possibility that it related to potential bankruptcy concerns. Even if
this was the cause for the trial court’s concerns; however, the burden was on defendant to
present prima facie proof that the debt had been discharged in bankruptcy. See Woerter v.
David, 311 Ill. App. 595, 599 (1941). Defendant, having never appeared before the trial court,
provided no evidence that the debt had been discharged in bankruptcy, and a requirement that
-3-
plaintiff prove the debt not discharged in bankruptcy would constitute an improper shifting of
the burden of proof.
¶ 14 The Foreclosure Law’s mandate that a trial court grant an in personam deficiency
judgment requires no more than what plaintiff has provided in the present case. Therefore, the
trial court’s insistence upon “further documentation” was contrary to the statute. Plaintiff has
demonstrated prima facie reversible error, and our examination shows that plaintiff’s
contentions are supported by the record. See First Capitol Mortgage Corp., 63 Ill. 2d at 133.
Accordingly, we vacate that portion of the trial court’s order awarding an in rem deficiency
judgment and remand the matter so that the trial court may enter an in personam deficiency
judgment.
¶ 15 CONCLUSION
¶ 16 The judgment of the circuit court of Peoria County is vacated in part and remanded with
instructions.
¶ 17 Vacated in part.
¶ 18 Cause remanded with instructions.
-4-