Thursday, February 28, 2013

FYI: Ill App Ct Rejects Borrower's Challenge to Foreclosure Based on Timing of Notice of Motion for Confirmation of Sale

The Illinois Appellate Court, Second District, recently upheld a post-foreclosure confirmation of a judicial sale, rejecting a borrower's claim that a bank's sending of a "Notice of Motion" prior to the scheduled judicial sale violated section 15-1508(b) of the Illinois Code of Civil Procedure.  In so doing, the Court ruled that the language in section 15-1508(b), "which motion shall not be made prior to sale," applied only to the motion to confirm the sale, which was made after the Sheriff's Sale, and not to the related notice of motion.


A copy of the opinion is available at:


Plaintiff bank ("Bank") filed a foreclosure action against defendant borrower ("Borrower"), among others.  Bank was ultimately granted summary judgment in its favor.   Almost a month before the scheduled sheriff's sale of the property, Bank mailed Borrower a "Notice of Motion" stating that after the sale date it would appear before the court and move for an order approving the sale and an order for possession.   The day after mailing out its notice of motion, Bank filed the actual notice, but did not include a written motion along with it. 


The sheriff's sale took place, and, on the date Bank moved for confirmation of the sale, the trial court approved the sale.  Borrower also filed "Objections to Notice of Confirmation of Sale," contending only that the confirmation of sale was fatally flawed under section 15-1508(b) of the Illinois Code of Civil Procedure ("Section 15-1508(b)") because Bank's notice of motion to confirm the sale was made prior to the sale date.  


Borrower appealed, arguing that Section 15-1508(b) prohibits the notice and motion from being made prior to the sheriff's sale.  The Appellate Court affirmed, concluding that Section 15-1508(b) prohibits only the motion from being made prior to the sale, but not the notice of motion.


As you may recall, Section 15-1508(b) provides:  "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."  735 ILCS 5/15-1508(b).


Parsing the language of Section 15-1508(b), the Appellate Court stressed that Borrower's assertion was "patently incorrect," pointing out that had the Illinois legislature intended to prohibit both the motion and notice from being made prior to sale, it would not have separated out as a stand-alone clause the phrase "which motion shall not be made prior to sale" from the rest of the provision.  As the Appellate Court explained, the more complicated phrasing clearly showed the legislature's intent that the "shall not be made prior to sale" clause apply only to the motion to confirm the sale and not to the notice. 


In so doing, the Appellate Court noted that: (1) Borrower's sole challenge to the sale confirmation was based on the claim that the notice of motion must postdate the sale; and (2) Bank actually moved for confirmation after the sale date when it filed its written motion.  


Accordingly, concluding that Borrower's claim failed, the Appellate Court affirmed the lower court's confirmation of the sheriff's sale.




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


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