2016 IL App (1st) 153513
FIRST DIVISION
September 30, 2016
No. 1-15-3513
DEUTSCHE BANK NATIONAL TRUST CO., as )
Trustee For IMPAC Secured Assets Corp., Series 2006-3, )
)
Plaintiff-Appellee, ) Appeal from the
) Circuit Court of
v. ) Cook County.
)
DAVID I. PUMA; LUZ PUMA a/k/a Luz M. Puma; ) No. 12 CH 25029
THE CITY OF CHICAGO; UNKNOWN HEIRS AND )
LEGATEES OF DAVID I. PUMA, IF ANY; ) Honorable
UNKNOWN HEIRS AND LEGATEES OF LUZ PUMA, ) Anna M. Loftus,
IF ANY; and UNKNOWN OWNERS and ) Judge Presiding.
NON-RECORD CLAIMANTS, )
)
Defendants, )
)
(David Puma and Luz Puma, Defendants-Appellants). )
JUSTICE MIKVA delivered the judgment of the court, with opinion.
Presiding Justice Connors and Justice Harris concurred in the judgment and opinion.
OPINION
¶1 In July 2012, plaintiff Deutsche Bank National Trust Co. (Deutsche Bank) filed a
complaint for foreclosure against, among others, defendants David Puma and Luz Puma (the
Pumas). In June 2014, the Cook County circuit court granted summary judgment in favor of
Deutsche Bank and against the Pumas and entered a judgment of foreclosure and sale. The court
confirmed the sale of the subject property in November 2015. On appeal, the Pumas contend that
the circuit court improperly awarded possession of the subject property to Deutsche Bank in its
order confirming the sale of the property when the Pumas were not listed in the complaint as
persons whose right to possess the subject property was sought to be terminated. For the
following reasons, we affirm.
No. 1-15-3513
¶2 BACKGROUND
¶3 On July 6, 2012, Deutsche Bank filed its complaint to foreclose mortgage against the
Pumas, unknown heirs and legatees, unknown owners and nonrecord claimants, and the City of
Chicago, pursuant to the Illinois Mortgage Foreclosure Law (Foreclosure Law) (735 ILCS 5/15-
1101 et seq. (West 2012)). In the complaint, Deutsche Bank alleged that, on September 19, 2006,
the Pumas executed a mortgage for the property commonly known as 2551 West Farwell Avenue
in Chicago, Illinois. Deutsche Bank alleged that it was the owner and legal holder of the note,
mortgage, and indebtedness by virtue of an assignment of the mortgage. Deutsche Bank stated
that the Pumas had failed to make payments on the loan since August 1, 2011, and, at the time
the complaint was filed, had an unpaid principal balance of $596,403.77.
¶4 Deutsche Bank made several requests for relief, including a judgment of foreclosure and
sale; a judgment for attorney fees, costs, and expenses; and an order approving the sale and
“granting possession.”
¶5 The mortgage and note were both attached to the complaint. The mortgage was signed by
both of the Pumas, and the note was signed by David Puma only. The assignment of mortgage
was also attached to the complaint, showing that the subject mortgage and note were assigned to
Deutsche Bank on August 1, 2009.
¶6 The Pumas filed a pro se answer to Deutsche Bank’s complaint on August 3, 2012. In it,
the Pumas alleged that they did not “own [sic] anything to this bank” and that “[a]ccording to the
documents [they] own [sic] to Impac.” This was apparently a reference to IMPAC Funding
Corporation, the original lender.
¶7 Deutsche Bank filed two motions for summary judgment against the Pumas. The first was
filed on January 15, 2013, but was later withdrawn without prejudice by an agreed order. The
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second was filed on October 15, 2013. Both motions alleged that Deutsche Bank was entitled to
summary judgment as a matter of law because the Pumas had failed to raise any issue of material
fact in their answer. On January 14, 2014, Deutsche Bank filed a motion for judgment of
foreclosure and sale and a motion to appoint a selling officer.
¶8 The circuit court granted summary judgment in favor of Deutsche Bank and against the
Pumas on June 3, 2014, and entered a judgment of foreclosure and sale the same day. In the
judgment, the court specifically ordered that the mortgagor would have possession of the
property until the sale was confirmed but that, upon the confirmation of sale, the mortgagor
“shall surrender possession thereof to such purchaser.”
¶9 Deutsche Bank filed its motion to approve the report of sale and distribution, and for an
order of possession on June 17, 2015. According to the report, the subject property was sold to
Deutsche Bank as the highest bidder for $697,680.65, and the total amount due the bank at that
point was $704,300.29.
¶ 10 The following day, the Pumas, now represented by counsel, filed a motion to reconsider
the circuit court’s orders of June 3, 2014. In the motion, the Pumas made several arguments,
including the one that they make on appeal, that the complaint did not plead the “names of
defendants whose right to possess the mortgaged real estate, after the confirmation of a
foreclosure sale, is sought to be terminated” as set out in the Foreclosure Law form foreclosure
complaint (735 ILCS 5/15-1504(a)(3)(T) (West 2012)). On October 5, 2015, the trial court
issued a written opinion denying the motion to reconsider as untimely and lacking merit.
¶ 11 On November 10, 2015, the circuit court granted Deutsche Bank’s motion of June 17,
2015, entering an order approving the report of sale and distribution, confirming the sale of the
property, and ordering possession in favor of the successful bidder, Deutsche Bank.
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¶ 12 JURISDICTION
¶ 13 The Pumas timely filed their notice of appeal in this matter on December 9, 2015. This
court has jurisdiction pursuant to Illinois Supreme Court Rules 301 and 303 governing appeals
from final judgments entered by the circuit court in civil cases. Ill. S. Ct. R. 301 (eff. Feb. 1,
1994); R. 303 (eff. Jan. 1, 2015).
¶ 14 ANALYSIS
¶ 15 The only issue raised in this appeal, which was also raised in the Pumas’ motion to
reconsider the judgment of foreclosure and summary judgment order, is that the complaint was
deficient in failing to specifically name the Pumas as persons whose right to possess the
mortgaged real estate was sought to be terminated.
¶ 16 Section 15-1504(a) of the Foreclosure Law provides a general form for a foreclosure
complaint. 735 ILCS 5/15-1504(a) (West 2012). A plaintiff is not required to follow the form
precisely; rather, the section provides that a “foreclosure complaint may be in substantially the
following form.” (Emphases added.) Id. One of the form allegations, set out in subsection
(a)(3)(T), is the “[n]ame or names of defendants whose right to possess the mortgaged real
estate, after the confirmation of a foreclosure sale, is sought to be terminated and, if not
elsewhere stated, the facts in support thereof.” 735 ILCS 5/15-1504(a)(3)(T) (West 2012).
¶ 17 The Pumas’ contention on appeal is that the allegations in Deutsche Bank’s complaint
were insufficient to support an award of possession against them because it did not include the
“material allegations required” by section 15-1504(a)(3)(T), naming the Pumas as defendants
“whose right to possess the mortgaged real estate, after the confirmation of a foreclosure sale, is
sought to be terminated” and, as a result, the circuit court abused its discretion by making such
an award in its order confirming the sale.
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¶ 18 Deutsche Bank acknowledges that its foreclosure complaint did not include the precise
language of section 15-1504(a)(3)(T) but argues that its substantial compliance with the form
pleading set out in section 15-1504(a) and its complaint as a whole were sufficient to allege a
right to possession against the Pumas. We agree.
¶ 19 In determining the sufficiency of a complaint, “we must liberally construe [the] pleading
in order to do substantial justice between the parties (735 ILCS 5/2-603(c) (West 2010)), and we
must consider the exhibits attached to the complaint, as they are considered part of the complaint
for all purposes.” MB Financial Bank, N.A. v. Allen, 2015 IL App (1st) 143060, ¶ 27. We note
that the very nature of a foreclosure action contemplates the termination of a mortgagor’s interest
in the mortgaged property. See Black’s Law Dictionary 658 (7th ed. 1999) (defining a
“foreclosure” as “[a] legal proceeding to terminate a mortgagor’s interest in property, instituted
by the lender (the mortgagee) either to gain title or to force a sale in order to satisfy the unpaid
debt secured by the property”); Id. (defining “mortgage foreclosure” as “[a] foreclosure of the
mortgaged property upon the mortgagor’s default”). The Foreclosure Law itself provides that
“the interest [of the] real estate of *** all persons made a party in such foreclosure *** shall be
terminated by the judicial sale of the real estate, pursuant to a judgment of foreclosure, provided
the sale is confirmed in accordance with this Article.” (Emphasis added.) 735 ILCS 5/15-1404
(West 2012).
¶ 20 Subsection 15-1504(b) of the Foreclosure Law specifically provides that a complaint for
foreclosure “need contain only such statements and requests called for by the form set forth in
subsection (a) *** as may be appropriate for the relief sought.” 735 ILCS 5/15-1504(b) (West
2012). Here, Deutsche Bank’s complaint identified the Pumas as the mortgagors and owners of
the real estate. This allegation, alone, was sufficient to identify the Pumas as parties whose
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No. 1-15-3513
interest in the property would be terminated by the judicial sale of the property. The allegation
was further supported by the attachment of the mortgage to the complaint, which showed that
both of the Pumas signed the mortgage and that the mortgage itself gave the mortgagee the right
to foreclose and sell the property. Deutsche Bank also specifically requested an order of
possession as a form of relief in its complaint. The complaint substantially complied with section
15-1504(a) and was, therefore, more than sufficient to support a request for an order of
possession against the Pumas as a form of relief.
¶ 21 The Pumas nonetheless argue that if a plaintiff fails to include the precise language of
section 15-1504(a)(3)(T) in its complaint, then the circuit court may not enter an award of
possession. They rely on section 15-1504(c)(12) of the Foreclosure Law, which provides as
follows:
“[T]he purchaser at the sale will be entitled to full possession of the mortgaged
real estate against the parties named in clause (T) of paragraph (3) of subsection
(a) of Section 15-1504 or elsewhere to the same effect; the omission of any party
indicates that plaintiff will not seek a possessory order in the order confirming
sale unless the request is subsequently made under subsection (h) of § 15-1701 or
by separate action under Article 9 of this Code.” 735 ILCS 5/15-1504(c)(12)
(West 2012).
¶ 22 With particular reliance on the phrase “the omission of any party indicates that plaintiff
will not seek a possessory order in the order confirming the sale,” the Pumas claim that, having
failed to include the precise language of subsection (a)(3)(T) in its complaint, Deutsche Bank
was precluded from seeking a possessory order as part of the foreclosure proceeding. According
to the Pumas, the only “mechanism for [Deutsche Bank] to obtain the possession of the Property
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after confirmation of the sale was by a separate petition” pursuant to section 15-1701 of the
Foreclosure Law or article 9 of the Code, which is the Forcible Entry and Detainer Act (Detainer
Act) (see 735 ILCS 5/9-101 et seq. (West 2012)). We disagree.
¶ 23 When looking at the language of a statute, the fundamental rule is to “ascertain and give
effect to the intent of the legislature.” Hendricks v. Board of Trustees of the Police Pension
Fund, 2015 IL App (3d) 140858, ¶ 14. “If the statutory language is clear and unambiguous, it
must be applied as written.” Id.
¶ 24 Just before the phrase the Pumas rely on, subsection (c)(12) states that “the purchaser at
the sale will be entitled to full possession of the mortgaged real estate against the parties named
in [subsection(a)(3)(T)] of Section 15-1504 or elsewhere to the same effect.” (Emphasis added.)
735 ILCS 5/15-1504(c)(12) (West 2012). Although Deutsche Bank did not name the Pumas as
persons whose right to possession the bank sought to terminate under subsection (a)(3)(T), it did
name them as mortgagors and the owners of the real estate. This fits into the plain meaning of
naming parties “elsewhere to the same effect” as required by subsection (c)(12). Therefore, the
Pumas were not omitted parties within the meaning of that subsection, and their argument to the
contrary is without merit.
¶ 25 The Pumas’ suggestion that Deutsche Bank was required to bring a separate proceeding
under section 15-1701 of the Foreclosure Law or under the Detainer Act completely
misperceives the nature of the protection the Foreclosure Law provides for tenants and other
occupants who are not mortgagors. Under the Foreclosure Law, “lawful occupants of foreclosed
properties cannot be removed except by [Detainer Act] proceedings or unless they were made a
party to foreclosure proceedings.” Fifth Third Mortgage Co. v. Foster, 2013 IL App (1st)
121361, ¶ 11. Section 15-1701(h) of the Foreclosure Law provides a mechanism, outside of the
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Detainer Act, in which a purchaser of foreclosed property, up to 90 days after the date of the
order confirming the sale, can file a supplemental petition for possession against a person not
personally named as a party to the foreclosure. 735 ILCS 5/15-1701(h) (West 2012). There is no
need for those separate proceedings here, where this entire foreclosure case grew out of the
Pumas’ mortgage.
¶ 26 Deutsche Bank’s complaint substantially complied with the form in section 15-1504(a),
and, as the purchaser of the subject property at the judicial sale, Deutsche Bank was statutorily
entitled to possession of the subject property. Accordingly, the Pumas have failed to show that
the circuit court erred in awarding possession of the subject property to Deutsche Bank in its
order confirming the sale.
¶ 27 CONCLUSION
¶ 28 For the foregoing reasons, we affirm the judgment of the circuit court.
¶ 29 Affirmed.
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