FYI: Ill App Ct (1st Dist) Rejects Challenge to Foreclosure Based on Supposedly Unapplied Payments

The Appellate Court of Illinois, First District, recently affirmed a trial court's order confirming a judicial sale of real property collateral following a mortgage foreclosure, as well as the trial court's denial of the borrower's motion to reconsider that order.

 

In so ruling, the First District held that the trial court did not abuse its discretion in rejecting the borrower's objection to the sale based on sparse evidence of unapplied payments supposedly made toward the balance due during the borrower's bankruptcy.

 

A copy of the opinion is available at:  Link to Opinion

 

The borrower and his wife objected to the foreclosure sale of certain real property by the plaintiff mortgagee, arguing that they had initiated Chapter 13 bankruptcy proceedings after the entry of the judgment of foreclosure and sale, and in that time made payments of approximately $100,000 toward the mortgage arrearage that the trial court should have credited to them in the order approving the judicial sale.

 

In support of the argument that he made payments totaling over $100,000 towards the mortgage arrearage after filing the bankruptcy petition, the borrower attached a mortgage payment statement dated March 18, 2019 from the loan servicer, which stated that the borrower had a "Total Post-Petition Unpaid Payment Amount" of $114,413.62. This was the only evidence that the borrower produced to attempt to prove that he had made the alleged payments that he argued should have been credited to him in the court's order of foreclosure and sale.

 

The trial court entered an order confirming the sale, which made no mention of the borrower's alleged payments. The borrower then filed a motion to reconsider the order, making the same argument that certain payments made during bankruptcy were never accounted for, and he was entitled to a credit for those payments in the report of sale and distribution. He also argued that the total amount of his alleged payments should have gone towards the unpaid principal balance, because the interest could not be charged during bankruptcy.

 

The trial court denied the motion to reconsider and the borrower timely appealed.

 

The First District began its analysis by noting that, under the Illinois Mortgage Foreclosure Law ("IMFL"), a trial court has broad discretion to approve or reject a judicial sale; however, the court's discretion to refuse confirmation of the sale is limited to four specific situations enumerated in the IMFL. Mortgage Electronic Registration Systems, Inc. v. Barnes, 406 Ill.App.3d 1, 4 (1st Dist. 2010).

 

As provided the IMFL, "the court shall confirm the sale unless the court finds that: (i) proper notice of the sale was not given; (ii) the terms of the sale were unconscionable; (iii) the sale was conducted fraudulently; or (iv) justice was otherwise not done." Wells Fargo Bank, N.A. v. McCluskey, 2013 IL 115469, ¶ 18 (quoting 735 ILCS 5/15–1508(b)). The movant bears the burden of proving any of these four circumstances. Beal Bank v. Barrie, 2015 IL App (1st) 133898, ¶ 28.

 

In the present matter, the borrower argued that the basis for reversing the trial court's approval of the judicial sale was that "justice was not otherwise done," pursuant to Section 1508(b)(iv), because the trial court's failure to apply the payments he made during his bankruptcy case prevented him from protecting his interest in the property.

 

The First District described the fourth basis for rejecting a judicial sale as one that defendants often invoke as a last-ditch effort to save themselves from a lost foreclosure case.  However, a trial court's discretion to reject a sale pursuant to Section 1508(b)(iv) is "extraordinarily narrow." NAB Bank v. LaSalle Bank, N.A., 2013 IL App (1st) 121147, ¶ 16.

 

The Appellate Court also explained that, although there is no bright-line definition of what constitutes a sufficient injustice under Section 1508(b)(iv), the limited handful of cases in which courts have vacated a foreclosure sale pursuant to the justice clause predominantly involved an unconscionable sale price, errors relating to the actual sale process, or lender conduct that prevented the borrower from protecting their interest in the property and affected their right to redeem the property. Id. at ¶ 18; Fleet Mortgage Corp. v. Deale, 287 Ill.App.3d 385, 390 (1st Dist. 1997); Wells Fargo Bank, N.A. v. McCluskey, 2013 IL 115469, ¶ 22.

 

Here, the First District observed that the borrower could not claim that the conduct of the mortgagee (neither the current plaintiff nor the original plaintiff that filed the foreclosure case) prevented him and his wife from protecting their interest in the property. Neither could the borrower claim that he sought to redeem the property in his objections to the judicial sale. Furthermore, although he took issue with the trial court's confirmation of a deficiency of $208,112.76, he did not allege that the sale price was unconscionable, or that there was any error made in conducting the sale itself, limiting his objection to the trial court's consideration in ruling on the motion to confirm the sale.

 

The borrower instead cited the decision in Deutsche Bank National Trust Co. v. Cortez as a factually analogous case in which the First District found that the trial court should have held a hearing on whether the borrower had made payments to the lender towards his mortgage that were not accounted for, and would have resulted in a surplus at sale. 2020 IL App (1st) 192234, ¶ 25.

 

However, the First District held that there were notable factual distinctions between Cortez and the present case. The defendant borrower in Cortez definitively showed the lower court that a trial modification plan existed, that he successfully completed the trial period, that the plaintiff mortgagee accepted the full payment he made pursuant to the trial plan, and that a final loan modification agreement existed. Additionally, the defendant borrower in Cortez was able to show that the trial court's failure to account for his loan modification payments prejudiced him because the sale resulted in a surplus even without applying any of the payments he claimed to have made.

 

In the present matter, the borrower argued that the sale would have resulted in a surplus of approximately $74,000. Instead, the sale as approved by the trial court resulted in a deficiency of $208,112.76. The First District observed that it was unclear how the borrower arrived at the surplus amount because the borrower failed to support his objections before the trial court. Not only was there an undisputed deficiency from the sale in this matter, but the borrower also did not address the lender's argument that he did not — and could not — show that he was prevented from protecting his interest in the property given that his personal liability under the defaulted mortgage note was discharged under Chapter 7 bankruptcy.

 

Additionally, the First District noted that, for the first time in his motion for reconsideration, the borrower presented the trial court with his only other evidence of having made payments towards the loan during bankruptcy proceedings — the Chapter 13 Standing Trustee's Final Report and Account ("Chapter 13 Report") entered on March 6, 2019. The Chapter 13 Report included a line under the category of "Summary of Disbursements to Creditors; Secured Payments" listing that the borrower and his wife paid $102,172.13 towards the principal of "Mortgage Ongoing" and paid nothing towards "Mortgage Arrearage." This was at odds with his argument on appeal, where he repeatedly claimed to have made over $100,000.00 in payments toward the mortgage arrearage through his bankruptcy case.

 

Furthermore, the First District questioned why the borrower failed to explain why he did not present the Chapter 13 Report in his original objections to the sale. The borrower was also silent as to why this document contradicted the mortgage payment statement document submitted in connection with the original objection proceedings, which stated on its face that there were Post-Petition Unpaid Payments in the amount of $114,413.62.

 

"The purpose of a motion to reconsider is to bring to the court's attention newly discovered evidence that was not available at the time of the original hearing, changes in existing law, or errors in the court's application of the law." Evanston Ins. Co. v. Riseborough, 2014 IL 114271, ¶ 36. A party seeking reconsideration based on new evidence must show that "the newly discovered evidence existed before the initial hearing but had not yet been discovered or was otherwise unobtainable." Simmons v. Reichardt, 406 Ill. App. 3d 317, 324 (4th Dist. 2010). Issues raised before the trial court for the first time on a motion to reconsider are forfeited. Tafoya-Cruz v. Temperance Beer Company, LLC, 2020 IL App (1st) 190606, ¶ 83.

 

Here, the First District determined that the March 6, 2019 Chapter 13 Report existed at the time that the borrower originally objected to the judicial sale, and he failed to bring it to the trial court's attention. His argument that it was a document in the public record and the court should have taken judicial notice of the records of other courts failed to cure his previous error.

 

Thus, the First District concluded that the motion to reconsider was based on new evidence and new arguments not made in the original hearing, was properly denied, and did not constitute an abuse of discretion.

 

Accordingly, the First District affirmed the trial court's ruling confirming the judicial sale and denying the Motion to Reconsider.

 

 

 

 

Ralph T. Wutscher
Maurice Wutscher LLP
The Loop Center Building
105 W. Madison Street, 6^th Floor
Chicago, Illinois 60602
Direct:  (312) 551-9320
Fax: (312) 284-4751

Mobile:  (312) 493-0874
Email: rwutscher@MauriceWutscher.com

 

Admitted to practice law in Illinois

 

 

 

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FYI: 11th Cir Upholds Denial of Attorney's Fees From Common Fund in Class Settlement

The U.S. Court of Appeals for the Eleventh Circuit recently affirmed a trial court's denial of a plaintiff counsel's motion for attorneys' fees, finding the firm's prioritization of their interests over those of the class cut off any entitlement to attorney's fees.

 

A copy of the opinion is available at:  Link to Opinion

 

The appeal arose from a law suit brought by a doctor ("Doctor") who was represented by a law firm ("Firm") against a company ("Company") after Company sent Doctor an unsolicited fax. Doctor filed suit on behalf of a putative class of other people or entities who allegedly received "unsolicited advertisements" by fax in violation of the federal Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227(b).

 

The parties reached a settlement agreement ("Settlement I") which provided that Company would create a common fund of $21 million to pay verified claims against it and the claimants would receive $492.32 per fax number they had received unsolicited advertisements from company.

 

Additionally, Firm would receive one third of the common fund as a fee award subject to court approval. Finally, the Settlement allowed Company to terminate the agreement for any reason.

Because Eleventh Circuit precedent generally limits the award of attorneys' fees to 25% of the common fund, Doctor and Company agreed to voluntarily dismiss the case ("Case I") and refile in state court in Illinois ("Case II").

 

In Case II, the same Settlement was preliminarily approved and notice of settlement was sent to the class members. One claimant ("Pharmaceutical Company") filed an objection to the settlement. In response to the objection, Company terminated the settlement agreement.

 

Pursuant to the terms of the settlement agreement, Case II was dismissed and refiled in federal court in Florida ("Case III").  Meanwhile, Pharmaceutical Company filed a separate class action in Illinois which was eventually consolidated with Case III.

 

Company and Pharmaceutical Company subsequently filed a new proposed settlement agreement in Case III ("Settlement II").

Settlement II provided for a $4.5 million common fund which was non-reversionary and entitled each claimant to receive a pro rata share of the common fund. The trial court approved Settlement II and appointed Pharmaceutical Company's attorney as class counsel, awarding them the full amount of attorneys' fees. The court further denied Doctor and Firm's motion for a portion of the attorneys' fees finding that Firm did not confer a substantial or independent benefit to the class which would justify a portion of the fees.

 

Doctor and Firm appealed.

 

The Court began its review by discussing when attorneys may receive a portion of the common funds.  Although plaintiff's attorneys are able to receive payment from the common fund, only attorneys who "recover [] a common fund" for the plaintiffs are entitled to receive a portion of the funds as a reasonable attorneys' fee. In re Home Depot Inc., Customer Data Sec. Breach Litig., 931 F.3d 1065, 1079 (11th Cir. 2019).  The court appointed class counsel is typically the one who recovers the common funds for the class.  However, sometimes other attorneys may aid in recovering the common fund and thus be entitled to attorneys' fees from the fund.

 

Thus, Federal Rule of Civil Procedure 23(h) provides a format for awards to other counsel whose "work produced a beneficial result for the class." The Eleventh Circuit held that under Rule 23(h), if a substantial and independent benefit to the class that aids in the recovery or improvement of the common fund is conferred by a non-class counsel attorney, then he is generally entitled to a portion of the common fund recovered in a class action as attorney's fees. In re Cendant Corp., Sec. Litig., 404 F.3d 173, 197 (3d Cir. 2005).

 

A substantial benefit "creates, discovers, increases, or preserves' the class's ultimate recovery" of the common fund. Id. at 197. An independent benefit is one that class counsel did not provide and that could not have been easily duplicated by class counsel. Id.

 

Firm argued that it provided substantial and independent benefits to the common fund by "identif[ing], fil[ing], and litigat[ing]" the class action and because 1,633 Settlement II claimants filed their claims under Settlement I.

 

The Eleventh Circuit disagreed in part.

 

First, the Appellate Court found the fact that Firm devoted substantial time and effort to litigating the action did not entitle Firm to attorneys' fees.

 

Instead, the Eleventh Circuit ruled that the effort Firm spent in obtaining a failed settlement agreement was not compensable unless it directly aided in the recovery or improvement of the common fund that was actually obtained. The Court thus held that Firm was incorrect in arguing that it was entitled to attorneys' fees merely for the time and effort expended litigation the class action or pursuing Settlement I. See Cendant, 404 F.3d at 197.  However, the Eleventh Circuit noted that, although Firm's work pursuing Settlement I did not substantially benefiting the class or aid in the recovery or improvement of Settlement II, the efforts Firm spent in identifying the 1,633 class members who ultimately recovered under Settlement II were an exception. 

 

Nevertheless, the Appellate Court also ruled that this did not confer an independent benefit, as class counsel reviewed the same documents as Firm and found the same class members.  In addition, even though class counsel did not require these members to submit new claims under Settlement II, they easily could have.

 

Firm further argued it provided a substantial benefit in filing the class action almost two years prior to class counsel's filing. The Eleventh Circuit agreed that filing a class action before other attorneys can provide a substantial benefit be preventing class members from falling outside the statute of limitations.

 

However, the Appellate Court found that Firm squandered any benefit it may have conferred by filing early by dismissing the case twice and refiling it, as the relevant filing date for Firm was the date it refiled in federal court in Case III.

 

Finally, the Eleventh Circuit found Firm did provide a substantial and independent benefit in one way: by identifying Company's TCPA violations and the potential for a class action. The Appellate Court noted that "attorneys who alone discover grounds for a suit, based on their own investigation rather than on public reports, legitimately create a benefit for the class." Cendant, 404 F.3d at 196-97.  Normally, Firm's identification of the class action would have provided a substantial and independent benefit that aided in recovery of the common fund and would entitle Firm to attorneys' fees.  However, it did not in this instance.

 

Instead, the Eleventh Circuit found that Firm repeatedly subordinated the interests of the class to its own interests during the litigation. 

 

The Appellate Court noted that Settlement I provided a huge payout for Firm but little to the class and allowed Company to terminate the agreement for any reason including if there were too many claimants. Additionally, the Court pointed to the requirement of Settlement I that the case be refiled in Illinois appeared to only exist so Firm could receive 1/3 of the common fund as attorneys' fees instead of only 25%.

 

The Eleventh Circuit found that the record showed that Firm put the class in serious risk of harm with Settlement I for the sake of inflated attorneys' fees and for convenience. Thus, Firm "closed the doors of equity" on its claim for attorneys' fees under Settlement II.

 

Therefore, the Eleventh Circuit held that the trial court did not abuse its discretion by denying Firm attorneys' fees and affirmed the ruling of the trial court.

 

 

Ralph T. Wutscher
Maurice Wutscher LLP
The Loop Center Building
105 W. Madison Street, 6^th Floor
Chicago, Illinois 60602
Direct:  (312) 551-9320
Fax: (312) 284-4751

Mobile:  (312) 493-0874
Email: rwutscher@MauriceWutscher.com

 

Admitted to practice law in Illinois

 

 

 

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FYI: 5th Cir Holds Stay of Foreclosure Did Not Support "Amount in Controversy"

The U.S. Court of Appeals for the Fifth Circuit recently held that a stay of a non-judicial foreclosure due to the filing of a lawsuit by the borrower did not support an "amount in controversy" in excess of $75,000 for federal diversity jurisdiction purposes.

 

Because the plaintiff borrower stipulated that he would only seek damages up to $74,500, the Fifth Circuit ruled that the trial court lacked subject matter jurisdiction, and reversed all of the trial court's rulings in the case, including its final judgment in favor of the defendant.

 

A copy of the opinion is available at:  Link to Opinion

 

The appeal arose from a lawsuit brought by a debtor ("Debtor") against a mortgagee ("Mortgagee") alleging supposed violations of the Texas Debt Collection Act ("TDCA") and breach of the common law duty of cooperation, fraud and negligent misrepresentation.  Debtor included a stipulation that the damages sought did not exceed $74,500. 

 

Creditor removed the case to federal court.  In support of its removal, Mortgagee argued that Debtor's lawsuit stayed Mortgagee's non-judicial foreclosure sale and therefore put the value of the home, which exceeded $75,000, in dispute.

 

Debtor moved to remand the lawsuit back to state court arguing the amount in controversy could not exceed the stipulated amount. The federal trial court denied the motion for remand, concluding that Debtor's statement that the damages sought were less than $74,500 was insufficient. The federal trial court ruled that it had to measure the amount in controversy "by the value of the object of the litigation," and not what "the complaint states th[e] damages are 'not to exceed.''

 

The case moved forward, eventually resulting in judgment in favor of Mortgagee. Debtor appealed, challenging the denial of his motion to remand.

As you may recall, under 28 U.S.C. § 1332(a), federal courts "shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs and is between…citizens of different States."

 

Section 1332 does not elaborate on how to determine the amount in controversy.  However, section 1446(c) sets a general rule that the amount in controversy is "the sum demanded in good faith in the initial pleading". 28 U.S.C. § 1446(c)(2). The statute then provides two exceptions to this general rule: (1) if nonmonetary relief is requested in the initial pleading; or (2) the initial pleading seeks a money judgment and that state either does not permit a demand for a specific sum or allows for recovery of a sum greater than that demanded.  28 U.S.C. § 1446(c)(2)(A).

 

When either exception is shown, then "the defendant's [plausible] amount-in-controversy allegation should be accepted when not contested by the plaintiff or questioned by the court." Dart Cherokee Basin Operating Co., LLC v. Owens, 574 U.S. 81, 87 (2014). If the allegation is questioned, "both sides submit proof and the court decides, by the preponderance of the evidence, whether the amount-in-controversy requirement has been satisfied." Id. at 88.

 

In the instant matter, the Fifth Circuit found that the amount in controversy did not exceed $75,000 for two reasons. First, Mortgagee did not establish by a preponderance of the evidence that the amount exceeded $75,000.  Although Mortgagee submitted evidence that the property value exceeded the jurisdictional threshold, the Fifth Circuit noted that it failed to show that the foreclosure stay put the value of the house in controversy.

 

In explanation, the Fifth Circuit noted that the amount in controversy is measured by the value of the object of the litigation. See, e.g., 14AA Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3702.5 (4th ed.) [hereinafter Wright & Miller]. In the instant matter, Debtor sought damages up to $74,500 for the alleged violations of his rights under the TDCA, and not any additional relief. Thus, the Appellate Court held, the object of the litigation was money damages, and those were below the jurisdictional minimum.

 

However, Mortgagee argued that because the lawsuit triggered an automatic stay of the foreclosure, the value of the house was put in dispute, thus making the house the real object of the litigation. However, the Fifth Circuit noted that it has been well settled that neither the collateral effect of a suit or judgment can be counted toward the amount in controversy. See, e.g., New England Mortg. Sec. Co. v. Gay, 145 U.S. 123, 130 (1892).

 

The Fifth Circuit found that the automatic stay of the foreclosure was collateral for three reasons. First, the automatic stay of the foreclosure was triggered by the filing of Debtor's suit itself; it was detached from the suit's outcome. The Court reasoned that just as a collateral effect of a judgment cannot count toward the amount in controversy, see New England Mortg., 145 U.S. at 130, neither can the collateral effect of filing a suit.

 

The second reason provided by the Fifth Circuit was that the stay was temporary regardless of the outcome of the suit and did not determine ownership of the property. The Court distinguished this from injunctions, declaratory relief, and other forms of specific relief that definitively resolve parties' rights and are permanent. As the automatic stay did not permanently alter anyone's rights, the house was not the suit's direct object.

 

In addition, the Fifth Circuit noted that Mortgagee exposed itself to the automatic stay when it opted to foreclose via non-judicial foreclosure rather than judicial foreclosure, which would not be subject to the automatic stay.

 

Based on this reasoning, the Court found that Mortgagee failed to establish the amount in controversy exceed $75,000.

 

The Fifth Circuit then ruled that the amount in controversy did not exceed $75,000 because Debtor stipulated prior to removal that the amount was below the jurisdictional limit.

 

The Court noted "[c]onsent of parties cannot give the courts of the United States jurisdiction, but the parties may admit the existence of facts which show jurisdiction, and the courts may act judicially upon such an admission." Ry. Co. v. Ramsey, 89 U.S. (22 Wall.) 322, 327 (1874).  In addition, the Court noted that it and many of its sister circuits have concluded that facts that bear on jurisdiction may be stipulated to by the parties. See, e.g., Hogar Agua y Vida en el Desierto, Inc. v. Suarez-Medina, 36 F.3d 177, 182 n.4 (1st Cir. 1994); Meyer v. Berkshire Life Ins. Co., 372 F.3d 261, 265 (4th Cir. 2004).

 

The Fifth Circuit ruled that the amount in controversy requirement was no exception to this rule and cited the Supreme Court of the United States holding that "[i]f [the plaintiff] does not desire to try his case in the federal court[,] he may resort to the expedient of suing for less than the jurisdictional amount, and though he would be justly entitled to more, the defendant cannot remove." St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 294 (1938). This principle was reaffirmed when the Supreme Court held "federal courts permit individual plaintiffs, who are the masters of their complaints, to avoid removal to federal court, and to obtain a remand to state court, by stipulating to amounts at issue that fall below the federal jurisdictional requirement." Standard Fire Co. v. Knowles, 568 U.S. at 588, 595 (2013).

 

In addition, the Fifth Circuit held that stipulations as to the amount in controversy can be binding even when they are disputed by the defendant because the plaintiff is stating a fact that it is not seeking nor will it accept more than a particular amount, and as a legal consequence the court cannot order more than that amount. As the amount in controversy turns only on the plaintiff's demand and the court's ability to limit the plaintiff to that demand, the binding nature of the plaintiff's statement does not depend on the defendant.

 

The Fifth Circuit ruled that Debtor's stipulation was legally binding as his two statements could best be read as Debtor stating he was seeking and would accept no more than $74,500.  Mortgagee argued the stipulation was insufficient, but the Court disagreed finding support in both Texas law and the preclusion doctrine.

 

Thus, the Fifth Circuit concluded that Mortgagee failed to establish that the amount in controversy exceeded the jurisdictional floor of $75,000, and that the trial court therefore erred in denying Debtor's motion for remand, and that the trial court lacked subject matter jurisdiction when it entered final judgment in favor of Mortgagee.

 

Accordingly, the Appellate Court reversed the trial court's rulings and remanded with instruction to remand the action back to state court.

 

 

 

Ralph T. Wutscher
Maurice Wutscher LLP
The Loop Center Building
105 W. Madison Street, 6^th Floor
Chicago, Illinois 60602
Direct:  (312) 551-9320
Fax: (312) 284-4751

Mobile:  (312) 493-0874
Email: rwutscher@MauriceWutscher.com

 

Admitted to practice law in Illinois

 

 

 

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