Wednesday, November 2, 2011

FYI: Ill App Ct Upholds Trial Court Ruling Against Borrower on Standing Defense

The Appellate Court of Illinois, Third District, recently held that in a
foreclosure proceeding, a borrower's failure to raise the issue of the
foreclosing bank's standing prior to the entry of default judgment
constituted a waiver of that issue.

A copy of the opinion is available at:

The loan owner filed to a complaint to foreclose. A default judgment was
entered by the lower court, which provided that "[t]his is a final and
appealable order and there is no just cause for delaying the enforcement
of this judgment or appeal therefrom."

Subsequently, the borrower filed several emergency motions to stay the
sale of the subject property. After granting three such motions, the
lower court denied the last, and the property was sold at a sheriff's
sale. The investor then filed a motion for an order approving the sale.
The borrower filed a response to the investor's motion, as well as a
motion to vacate the order approving the sale, wherein she raised the
issue of standing. The lower court denied the borrower's motion. The
borrower appealed.

In Illinois, when a trial court enters a judgment that makes an express
written finding that there is no just reason for delaying enforcement or
appeal, the judgment is final and appealable. Ill. S. Ct. R. 304(a).
The Court's analysis hinged on the fact that "the trial court specifically
made a finding pursuant to Rule 304(a) that there was no just reason for
delaying enforcement of the appeal." The borrower limited her appeal to
the order approving the foreclosure sale, and not also the judgment of

In addition, the Court held that the affirmative defense of lack of
standing is "waived if not raised in a timely fashion." The Court also
placed emphasis on the fact that the borrower participated in court
proceedings - by filing several emergency motions - without raising the
lack of standing defense. Therefore, the Court held that the borrower
"waived the issue of the investor's standing by failing to raise the issue
while, at the same time, participating and accepting the benefits of the
court proceedings."

Finally, the Court noted that Illinois' Code of Civil Procedure "limits a
trial court's discretion to refuse confirmation of a judicial sale to the
four grounds specified in the statute." Those four grounds are (i) lack
of notice; (ii) unconscionable terms of sale; (iii) fraudulently conducted
sale; (iv) justice otherwise not done. See 735 ILCS 5/15-1508(c).

None of these four grounds were raised by the borrower. Because the
borrower "limited her appeal to the order approving the sale," but did not
"contend that the trial court made any of the findings required by section
15-1508," the Court held that the trial court did not abuse its discretion
in approving the sale.

Ralph T. Wutscher
McGinnis Tessitore Wutscher LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct: (312) 551-9320
Fax: (312) 284-4751
Mobile: (312) 493-0874

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