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Mitigation Affidavit which must be submitted at or before moving for a foreclosure judgment, and
applies to all judgments entered on and after May 1, even in pre-existing cases, if a mortgagor has
appeared in the case.

While the court’s comments in enacting the rules made clear that its principal focus was on home
foreclosures, nothing in the rules (except the form of Loss Mitigation Affidavit) is expressly limited to
residential foreclosures. Accordingly, look for disputes as to whether the new procedures have to be
followed in commercial cases.

Confirmation Hearing May Be Noticed Before Sale, Court Says

A mortgagee may notice its hearing on confirmation of a foreclosure sale before that sale has
occurred, provided it does not file its motion for confirmation until after the sale, a panel of the
Appellate Court has concluded.

Citibank, N.A. v. Monroe, 2013 IL App (2d) 120593, involved § 15-1508(b) of the Illinois
Mortgage Foreclosure Law (735 ILCS 5/15-1508(b)), which provides that “[u]pon motion and notice in
accordance with court rules . . ., which motion shall not be made prior to sale, the court shall conduct
a hearing to confirm the sale.” Noting that the “upon” clause applied to both the motion and the notice
but the “which” clause referred to only the motion, the panel ruled that the argument that the noticing
was premature and thus fatally defective was “patently incorrect.” Other than the allegedly premature
notice, no grounds were asserted for setting aside the sale.

Order Confirming Sale Renders Foreclosure Appealable

A mortgage foreclosure judgment is not final and appealable until the court enters an order
approving the sale and directing the distribution of the property (see Sharp Thinking No. 83 (Feb.
2013)), but an order confirming the sale renders the case final and appealable, a panel in the
Appellate Court’s First District has ruled.

Moreover, where nothing is done within the 30-day appeal period, the judgment-reopening
provisions of § 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401) may not be used to
circumvent §§ 15-1509(a) and 15-1509(c) of the Illinois Mortgage Foreclosure Law (“IMFL”) (735
ILCS 5/15-1509(a), 5/15-1509(c)), the court said. U.S. Bank N.A. v. Prabhakaran, 2013 IL App (1st)
111224.

Supreme Court To Review Wells Fargo v. McCluskey

Prabhakaran is distinguishable from Wells Fargo Bank, N.A. v. McCluskey, 2012 IL App (2d)
110961 (see Sharp Thinking No. 83 (Feb. 2013)), because of the time at which the attack on the
foreclosure proceedings was raised, but dicta in Prabhakaran suggests the distinction is immaterial.
The varying decisions on whether general provisions of the Code of Civil Procedure may be used to
circumvent more specific provisions of IMFL indicate that this is an area ripe for Supreme Court
review, which may be why the high court has granted a petition to appeal the 2d District’s decision.
Wells Fargo Bank, N.A. v. McCluskey, No. 115469.

John \SharpThinking\#89.doc

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