Page 20 - John Hundley 2014

The court ordered plaintiff to file a bill of the expenses incurred within 14 days, and ordered
defendants within 14 days thereafter to show cause why those expenses should not be imposed on them.

Borrower Must Show Compliance With HAMP

A homeowner seeking to vacate a foreclosure sale and confirmation thereof under the Home
Affordable Mortgage Program (“HAMP”) must prove by a preponderance of the evidence both that he
applied for assistance under HAMP and that the home was sold in material violation of HAMP’s
requirements, a panel in the Appellate Court in Chicago has held.

Moreover, the decision in CitiMortgage, Inc. v. Bermudez, 2014 IL App (1st) 122824, appears to hold
that the homeowner cannot satisfy the first prong of that two-prong test if he did not submit all the
information which federal guidelines call for servicers to have in making trial period plan decisions.
Dealing with an argument that “apply for assistance” under the Mortgage Foreclosure Law (735 ILCS
5/15-1508(d-5)) meant something less than to submit a complete application, the court said that to invoke
§ 15-1508(d-5) “the borrower must submit the documentation required by the servicer to determine the
borrower’s eligibility and verify his or her income.”

Standing Pleading Burden Doesn’t Affect Jurisdiction

A mortgage foreclosure plaintiff’s failure to plead its standing does not result in the subsequent
judgment and sale being void for lack of subject-matter jurisdiction, a panel in the Appellate Court’s
Second District has ruled.

The issue arose in Nationstar Mortgage, LLC v. Canale, 2014 IL App (2d) 130676, because the
Illinois Mortgage Foreclosure Law, at 735 ILCS 5/15-1504(a)(3)(N), requires that a short-form complainant
set forth the capacity in which it brings the action. Some have argued that that provision reverses the
general Illinois rule that lack of standing is an affirmative defense which the defendant must plead and
prove. Finding that issue irrelevant, the Nationstar court said the premise that omission of a standing
allegation affects jurisdiction “rests on a defunct view of subject matter jurisdiction.” Under the 1970
Constitution, subject matter jurisdiction exists if the alleged claim “falls within the general class of cases
that the court has the inherent power to hear and determine.” Subject-matter jurisdiction “requires only a
‘justiciable matter,’ which a foreclosure clearly is,” the court said.

Mortgagee Entitled To Post-Judgment Statutory Interest

A mortgagee is entitled to collect post-judgment interest at the statutory rate from the date of
judgment to the date to the foreclosure sale, at least where the judgment contains a Supreme Court Rule
304(a) finding, the majority of a panel in the Appellate Court’s Third District has held.

The issue arose in CitiMortgage, Inc. v. Sharlow, 2014 IL App (3d) 130107, in a dispute as to whether
the sale resulted in a surplus to be paid to the homeowner. The homeowner – and one judge in dissent –
argued the mortgagee was not entitled to interest until it was determined that the property would not
satisfy the mortgagee’s claim.

- John T. Hundley, Jhundley@lotsharp.com, 618-242-0246
Brenda\SharpThinking\#116.pdf
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