Thursday, May 11, 2023

FYI: Ill App Ct (1st Dist) Holds "Small Servicer" Exempt from RESPA Loss Mitigation Rules

The Appellate Court of Illinois, First District, recently held that a borrower failed to identify any meritorious defense sufficient to stop or undo a judicial foreclosure sale.


In so ruling, the Appellate Court rejected the borrower's arguments that the servicer failed to comply with the loss mitigation rules under the federal Real Estate Settlement Procedures Act (RESPA) that she claimed would have allowed her to cure her default, because the servicer qualified as a "small servicer" under 12 C.F.R. 1026.41(e)(4), and was therefore exempt from the loss mitigation rules.


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


In 2007, a borrower executed a mortgage and note for $87,000 in favor of a lender ("mortgagee").  The borrower fell behind on her payment obligations.


In 2016, prior to the ending of the Home Affordable Modification Program (HAMP), the borrower applied for a HAMP modification with mortgagee. The mortgagee denied the mortgagor's HAMP modification request and filed a verified complaint for mortgage foreclosure in March of 2017. After a period of contested motion practice, the trial court entered an order of summary judgment and judgment of foreclosure and sale.


The foreclosure sale was scheduled on May 15, 2018. Prior to the sale, the borrower filed for Chapter 13 bankruptcy which was later converted into a Chapter 7 bankruptcy. In the bankruptcy proceeding, the borrower also brought UDAP claims against the mortgagee. The Bankruptcy Court dismissed the borrower's claims against the mortgagee and allowed the mortgagee to proceed with the foreclosure sale at the trial court.


In the trial court, the foreclosure sale was approved and occurred in January of 2020. The mortgagee repurchased the property and sought court approval of the sale in February 2020. In March of 2020, the mortgagor, pro se, raised new arguments and the trial court granted her leave to file a response to the motion for an order approving the sale by March 31, 2020 and the hearing was continued until May of 2020.


COVID-19's impact on the court system and moratorium on confirmation of judicial sales resulted in a delay of the approval of the sale. In January of 2021, the borrower filed a pro se answer, counterclaim, which was subsequently stricken. Furthermore, the suspension of the borrower's prior lawyer resulted in further delays while the parties litigated what misrepresentations were made by the borrower's prior lawyer. Ultimately, in February of 2022, the trial court entered an order confirming the judicial sale. The borrower timely appealed.


On appeal, the borrower raised three issues. First, she argued that the trial court erred in confirming the sale of the property because she never received a loss mitigation denial letter on her loan modification application as required by section 1024.41 of the Real Estate Settlement Procedures Act (RESPA) and Regulation X (12 C.F.R. § 1024.41). Second, the borrower argued that the trial court erred by confirming the sale of the property despite learning that she submitted a HAMP loan modification application which was not appropriately processed in accordance with RESPA or Regulation X by mortgagee, causing the borrower to no longer be eligible for the program. Third, mortgagor argued that the trial court erred by confirming the sale of the property by ignoring a preponderance of the evidence that showed that mortgagee neglected the borrower's numerous attempts to modify her loan and end her delinquency.


In Illinois, a judicial foreclosure sale is not complete until it has been approved by a trial court. Under section 15-1508(b), the trial court shall confirm a sale unless it finds that: (i) a notice required in accordance with subsection (c) of Section 15-1507 was not given, (ii) the terms of the sale were unconscionable, (iii) the sale was conducted fraudulently, or (iv) justice was otherwise not done. 735 ILCS 5/15-1508(b).  The burden of the party opposing confirmation of the sale must prove that that sufficient grounds exist to disprove the sale.


The Appellate Court noted that in order for the borrower to properly vacate the sale, she must demonstrate that "that justice was not otherwise done because either the lender, through fraud or misrepresentation, prevented the borrower from raising [her] meritorious defense to the complaint at an earlier time in the proceedings, or the borrower has equitable defenses that reveal she was otherwise prevented from protecting her property interests." Wells Fargo Bank, N.A. v. McCluskey, 2013 IL 115469 ¶ 26.


Here, the mortgagee argued that it was a small servicer under RESPA (12 CFR § 1026.41(e)(4)), and was therefore effectively exempt from the pre-foreclosure violations complained of by the mortgagor. The Appellate Court agreed that the mortgagee qualified as a "small servicer" and was exempt from the specific RESPA loss mitigation rules at issue.


As a result, the Appellate Court affirmed the trial court's judgment on the first two arguments raised by the borrower.


Lastly, the Appellate Court disagreed with the borrower's argument that a preponderance of the evidence showed that mortgagee neglected her numerous attempts to modify her loan and end her delinquency across the life of the loan and afterward and that section 15-1508(b)(iv) applied.  The Appellate Court disagreed because the borrower admitted to her prior inability to make her mortgage payments, failed to respond to the mortgagee's motion for summary judgment, and that the borrower defaulted on several forbearance options and was unable to make payments under her Chapter 13 bankruptcy plan.


Therefore, the Appellate Court held that the borrower failed to identify any meritorious defense sufficient to stop or undo the judicial sale, and confirmed the trial court's judgment.



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

Mobile:  (312) 493-0874


Admitted to practice law in Illinois




Alabama   |   California   |   Florida   |   Illinois   |   Massachusetts   |   New Jersey   |   New York   |   Ohio   |   Pennsylvania   |   Tennessee   |   Texas   |   Washington, DC



NOTICE: We do not send unsolicited emails. If you received this email in error, or if you wish to be removed from our update distribution list, please simply reply to this email and state your intention. Thank you.

Our updates and webinar presentations are available on the internet, in searchable format, at:


Financial Services Law Updates




The Consumer Financial Services Blog