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complaint and “the very nature of a foreclosure action contemplates the termination of a mortgagor’s
interest in the mortgaged property.” It said the allegation that defendants were mortgagors and
owners of the real estate “alone, was sufficient to identify [defendants] as parties whose interest in the
property would be terminated by the judicial sale.”
The panel interpreted provisions respecting ¶ 3(T), including 735 ILCS 5/15-1504(c)(12), as
applying to non-owners such as tenants whose occupancy the foreclosure action sought to terminate.

HAMP Compliance Is Subject To Preponderance Standard

When a mortgagor seeks to delay or invalidate a foreclosure sale on the ground that he should
have been given a Home Affordable Modification Program (HAMP) loan modification, whether the
mortgagee has violated that program is judged under a preponderance-of-evidence standard, a panel
of the Appellate Court in Chicago has held.
Moreover, it said, the standard on a motion to vacate the foreclosure judgment under 735 ILCS
5/2-1301(e) is an abuse of discretion. Wells Fargo Bank, N.A. v. Hansen, 2016 IL App (1st) 143720.

In Hansen, the debtor sought to require the mortgagee to prove “with all certainty” that HAMP had
not been violated. Noting that the Mortgage Foreclosure Law at 735 ILCS 5/15-1508(d-5) references
a preponderance of the evidence on the HAMP issue, the panel rejected that attempt.

Moreover, noting that § 2-1301(e) explicitly references the discretion of the court on ruling on a
motion to vacate, it rejected an argument that a standard higher than abuse-of-discretion applied.
Modification Agreement Not A Negotiable Instrument

A mortgage loan modification agreement which states it supplements the original note and
mortgage is not a negotiable instrument requiring proof of possession to prove standing in a
foreclosure action, a panel in the Appellate Court’s Second District has held.

Ruling in Bank of New York Mellon v. Rogers, 2016 IL App (2d) 150712, the court looked to
Merriam-Webster’s definition of “supplement” to hold that “by definition, something that is
supplemented completes something else, and makes the supplement conditional upon the referenced
document.” Because the terms of the modification agreement “specifically state that it supplements
the original note and mortgage,” the panel said, that “destroys its negotiability.”

In Rogers, defendants argued that plaintiff had not proved that it possessed the allegedly
negotiable modification agreement, which meant they had not proved standing. The court rejected
that position in an opinion that gave the standing issue greater attention than most appellate
decisions dealing with standing challenges. Rogers’ ruling on negotiability could become relevant in
non-standing contexts, and the case’s implications for such contexts are unclear.

Brenda\SharpThinking\#141.pdf

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