Page 10 - John Hundley 2019

Stale Loss Mitigation Affidavit Doesn’t Void Judgment

A loss mitigation affidavit signed more than a year before a motion for summary judgment
nonetheless is signed “prior to” the summary judgment motion and hence complies with Illinois
Supreme Court Rule 114(b), a panel of the Appellate Court in Chicago ruled recently.
Acting in Wells Fargo Bank, N.A. v. Smith, 2019 IL App (1st) 172963, the court dealt with a
creditor whose first summary judgment motion was denied without prejudice and who submitted a
new motion about a year after the first, attaching the same Rule 114(b) affidavit.
The defendant argued Rule 114 required an up-to-date affidavit detailing the current status of loss
mitigation efforts, but the panel disagreed. Noting that Rule 114(d) says a foreclosure court “may”
stay proceedings or deny the motion in case of violation of the rule, the panel said the rule vests trial
courts with “discretion” to grant a judgment of foreclosure and sale even if Rule 114 is not obeyed.

Rule 133(c) Applies In Foreclosure Proceedings

Illinois Supreme Court Rule 133(c) applies in mortgage foreclosure proceedings and to
allegations that are deemed alleged in “short form” foreclosure complaints.
So ruled a panel of the Appellate Court in Chicago recently. Acting in Bank of N.Y. Mellon v.
Wojcik, 2019 IL App (1st) 180845, the panel dealt with the deemed allegation that “any and all notices
of default or election to declare the indebtedness due and payable or other notices required to be
given have been duly and properly given” (735 ILCS 5/15-1504(c)(9)). The owners made a general
denial of this allegation but did not specify which notice(s) they claimed they had not received.

The panel said that under Rule 133(c) the general denial without specifics was an admission.
Accordingly, the panel affirmed summary judgment for the bank.

Confirmation Objection Can’t Rehash Foreclosure Defense

Defenses to foreclosure raised and rejected in consideration of the foreclosure judgment cannot
again be raised as a reason for not confirming a foreclosure sale under 735 ILCS 5/15-1508(b)(iv), a
panel of the Appellate Court in Chicago said recently.
Ruling in MidFirst Bank v. Riley, 2018 IL App (1st) 171986, the panel dealt with a situation where
the homeowner unsuccessfully had raised alleged non-compliance with the Home Affordable
Modification Program (HAMP) in opposing the foreclosure plaintiff’s summary judgment request. It
said that the alleged HAMP violation could not be rehashed under § 15-1508(b)(iv)’s “justice
otherwise not done” confirmation test.

Noting that the debtor’s challenge to summary judgment failed for lack of documentation as to the
HAMP objection, the panel held that a similar lack of documentation doomed the challenge to
confirmation under 735 ILCS 5/1508(d-5).
Debbie\SharpThinking\#167.pdf
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