Opinion
08-21-2013
AREA BANK, a State-Chartered Bank, f/k/a State Bank of Rosiclare, Plaintiff-Appellee, v. FREDERICK TURNER, JR., Administrator of the Estate of Ruby Erwin, Deceased, Defendant-Appellant (Unknown Heirs and Devisees of Ruby Erwin, Deceased; Veronica Erwin; Rodney Beliles, Not Individually but as Guardian of the Person and Estate of Joseph Erwin, Jr., a Disabled Adult; Illinois Association of Community Action Agencies, f/k/a Illinois Community Action Association; Fred Turner, as Personal Representative of Ruby Erwin, Deceased; and Unknown Owners and Nonrecord Claimants, Defendants).
NOTICE
Decision filed 08/21/13. The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.
NOTICE
This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the
Circuit Court of
Hardin County.
No. 10-CH-5
Honorable
Thomas J. Foster,
Judge, presiding.
JUSTICE CATES delivered the judgment of the court.
Presiding Justice Spomer and Justice Wexstten concurred in the judgment.
ORDER
¶ 1 Held: Where the circuit court had entered a judgment of foreclosure and expressly found that there was no just reason to delay the enforcement or appeal from that judgment and where no appeal was taken from that judgment, the defendant forfeited his claim that the mortgage foreclosure action was time-barred in an appeal from the subsequent judgment confirming the sale of the foreclosed property. Where the defendant failed to establish a valid ground for rejecting the judicial sale under 735 ILCS 5/15-1508(b), the circuit court correctly confirmed the judicial sale of the foreclosed property. ¶ 2 The defendant, Frederick Turner, Jr., administrator of the estate of Ruby Erwin, deceased (the Administrator), appeals from a judgment entered in the circuit court of Hardin County that confirmed the sale of foreclosed real estate to the plaintiff, Area Bank, a state-chartered bank, f/k/a State Bank of Rosiclare (the Bank). On appeal, the Administrator contends that the two-year claims deadline in section 18-12(b) of the Probate Act of 1975 (the Probate Act) (755 ILCS 5/18-12(b) (West 2010)) barred the foreclosure action because the Bank did not file the action within two years after the death of the mortgagor, Ruby Erwin. We affirm the judgment. ¶ 3 On May 8, 2001, Ruby Erwin obtained a loan of $36,000 from the Bank. The loan was secured by a note and a mortgage on real property owned by Miss Erwin and located in Elizabethtown, Illinois. The note, by its terms, would mature on July 7, 2009. Miss Erwin passed away on January 24, 2004. A probate estate was not opened and so the Bank did not make a probate claim against her estate on the note or the mortgage. ¶ 4 On April 5, 2010, the Bank filed a complaint for mortgage foreclosure in the circuit court of Hardin County against known and unknown heirs and devisees of Ruby Erwin and nonrecord claimants. In September 2010, upon the motion of the Bank, the trial court appointed the Administrator to act as the personal representative of the estate of Ruby Erwin. The court granted the Bank leave to join the Administrator as a party defendant in the foreclosure action. On November 8, 2010, the trial court entered a judgment of foreclosure in favor of the Bank. A public sale was held on December 15, 2010, and the Bank had the highest bid of $27,000. The hearing on the motion for confirmation of the sale was continued and an order confirming the sale was not entered. ¶ 5 On March 25, 2011, the Administrator filed a motion to vacate the November 8, 2010, judgment of foreclosure on the grounds that necessary parties were not joined as party defendants and that the foreclosure action was barred by the two-year claims deadline set forth in section 18-12(b) of the Probate Act. On August 25, 2011, the trial court granted the Administrator's motion to vacate the judgment of foreclosure on the ground that necessary parties were not joined as party defendants. The court found that the foreclosure action had been timely filed within the applicable 10-year statute of limitations for mortgage foreclosure actions, that the specific 10-year statute of limitations controls over the more general claims bar in section 18-12 of the Probate Act, and that the 2-year claims deadline did not bar the foreclosure action, except to the extent that the Bank sought a deficiency judgment against other assets of the Estate. The court granted the Bank leave to file an amended complaint to join all necessary parties who had not been previously joined. ¶ 6 In October 2011, the Bank amended its complaint to add necessary parties. In an answer to the third amended complaint filed in November 2011, the Administrator admitted the allegations regarding the amounts owed to the Bank under the note and mortgage, but affirmatively alleged that the Bank's action was time-barred because it had not been filed within two years after the death of the mortgagor as required in section 18-12(b) of the Probate Act. On February 29, 2012, the Bank filed a motion for a default judgment against the known and unknown heirs and devisees and other named defendants who had not entered an appearance or answered the complaint. On April 12, 2012, the trial court entered default judgments against those defendants and set a prove-up hearing for May 24, 2012. ¶ 7 Following the hearing on May 24, 2012, the trial court entered a written judgment of foreclosure. The judgment included an express finding, pursuant to Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010), that there was no just reason to delay enforcement or an appeal from the final, appealable judgment. In a docket entry from that same date, the trial court noted that the judgment of foreclosure was entered over the objection of the Administrator. The nature of the objection is not identified in the docket entry, and the objection is not mentioned in the written judgment of foreclosure. There are no pleadings containing a written objection and no transcript of the proceedings or bystander's report from which to ascertain the nature of the Administrator's objection. No one appealed the judgment of foreclosure. ¶ 8 A public sale was held on June 27, 2012. The Bank's bid of $20,000 was the highest. A motion for confirmation of the sale was filed. On July 12, 2012, the trial court entered a written order confirming the sale of the foreclosed property to the Bank. In the written order, the court found that the terms of the sale were fair and not unconscionable, that the sale was conducted fairly and without fraud, and that justice was done. The court expressly found that there was no just reason to delay enforcement or appeal of the judgment order. In a docket entry from that date, the court noted that the order confirming the sale was entered over the objection of the Administrator. Once again, the nature of the objection is not identified in the docket entry, and the objection is not mentioned in the written order confirming the sale. There are no pleadings containing a written objection and no transcript of the proceedings or bystander's report from which to ascertain the nature of the Administrator's objection. On August 13, 2012, the Administrator filed a notice of appeal, challenging the order entered July 12, 2012, confirming the sale of the foreclosed property to the Bank. ¶ 9 On appeal, the Administrator contends that the two-year claims deadline in section 18-12(b) of the Probate Act barred the foreclosure action because the Bank did not file the action within two years after the death of the mortgagor, Ruby Erwin. ¶ 10 The Bank contends that the claims-bar issue should have been raised in an appeal from the judgment of foreclosure, and that since the Administrator did not appeal the judgment of foreclosure, he waived the issue. The Bank points out that the claims-bar issue was fully briefed and argued as part of the Administrator's motion to vacate the original judgment of foreclosure entered in November 2010; that the trial court correctly found that section 18-12(b) did not bar the foreclosure action and refused it as a basis upon which to vacate the November 2010 judgment of foreclosure; that the trial court expressly found, pursuant to Supreme Court Rule 304(a), that the judgment of foreclosure entered in May 2012 was a final, appealable order; and that the Administrator did not appeal that judgment. The Bank argues that the claims-bar issue should have been raised in an appeal from the judgment of foreclosure, and that it cannot now be raised in the appeal from the judgment confirming the sale. ¶ 11 The Administrator counters that he raised the claims-bar issue in his answer to the third amended complaint; that the trial court did not make any specific ruling as to that affirmative matter in the judgment of foreclosure; and that although the trial court included a Rule 304(a) finding in the judgment of foreclosure, that judgment was not a final and appealable order because it did not specifically dispose of the claims-bar issue. The Administrator contends that the claims-bar issue is properly preserved for review in the appeal from the order confirming the sale as it is the only final and appealable order entered in this case. ¶ 12 It is well settled that an aggrieved property owner may immediately appeal a judgment ordering the foreclosure of a mortgage where the trial court has made a written finding that there is no just reason for delaying either enforcement or an appeal of that order. In re Marriage of Verdung, 126 Ill. 2d 542, 555-56, 535 N.E.2d 818, 824 (1989). In the absence of a Rule 304(a) finding, a judgment of foreclosure is not final and appealable until the trial court enters an order approving the sale and directing the distribution. EMC Mortgage Corp. v. Kemp, 2012 IL 113419, ¶ 11, 982 N.E.2d 152. This is so because a judgment of foreclosure, while final as to the matters it adjudicates, does not dispose of all issues between the parties and does not terminate the litigation. Kemp, 2012 IL 113419, ¶ 11, 982 N.E.2d 152. ¶ 13 In a civil case tried without a jury, a trial court is not required to make specific findings, and in the absence of specific findings, a reviewing court will assume that the trial court found in favor of the prevailing party on all issues and controverted facts. Nemeth v. Banhalmi, 125 Ill. App. 3d 938, 959, 466 N.E.2d 977, 992 (1984). ¶ 14 In this case, the record shows that the trial court considered and rejected the Administrator's argument that the foreclosure action was barred by the two-year claims limitation in the Probate Act, when it considered his motion to vacate the November 2010 judgment of foreclosure. The record also shows that when the trial court entered the judgment of foreclosure in May 2012, it included an express, written finding pursuant to Rule 304(a) that there was no just reason to delay the enforcement or appeal of that judgment. A docket entry from that date shows that the foreclosure judgment was entered over the objection of the Administrator. Although the trial court made no specific reference or finding as to the claims-bar allegation in the written judgment of foreclosure, we reasonably assume that the trial court found in favor of the Bank on all controverted issues, including the affirmative matter of the claims bar. ¶ 15 After reviewing the record, we conclude that the judgment of foreclosure was a dispositional order as to the foreclosure action and left remaining only the matters of the propriety of the judicial sale and the distribution of any proceeds of the sale, and that it was a final and appealable order. The Administrator had 30 days to file a notice of appeal pursuant to Supreme Court Rule 303(a) (eff. June 4, 2008), and he did not do so. If a party does not comply with the deadline for filing an appeal as provided in Supreme Court Rule 303, the appellate court lacks authority to consider the appeal. Mitchell v. Fiat-Allis, Inc., 158 Ill. 2d 143, 150, 632 N.E.2d 1010, 1012 (1994). In failing to appeal the judgment of foreclosure, the Administrator lost the right to raise the claims-bar issue in future appeals. In re Johnson, 134 Ill. App. 3d 365, 368-69, 480 N.E.2d 520, 524 (1985). ¶ 16 In an alternative argument, the Administrator contends that the trial court abused its discretion in confirming the judicial sale. ¶ 17 Confirmation of judicial sales is governed by section 15-1508(b) of the Code of Civil Procedure. 735 ILCS 5/15-1508(b) (West 2010). Section 15-1508(b) limits a trial court's discretion to refuse confirmation of a judicial sale to the four grounds specified in the statute. Subsection (b) of section 15-1508 provides in pertinent part:
"Unless the court 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) that justice was otherwise not done, the court shall then enter an order confirming the sale." 735 ILCS 5/15-1508(b) (West 2010).¶ 18 In this case, the trial court noted in a docket entry that the Administrator made an objection during the hearing on the confirmation of the judicial sale of the mortgaged property. The record on appeal contains no transcript of the proceedings, no bystander's report, and no written objection, and we find nothing else in the record to chronicle the nature of the Administrator's objection. It is the appellant's duty to provide a sufficiently complete record of the proceedings at trial to support a claim of error, and absent a complete record, the reviewing court will presume that an order was in conformity with the law and had a sufficient factual basis. Foutch v. O'Bryant, 99 Ill. 2d 389, 391-92, 459 N.E.2d 958, 959 (1984). ¶ 19 The objecting party has the burden to show why a judicial sale should not be confirmed. NAB Bank v. LaSalle Bank, N.A., 2013 IL App (1st) 121147, ¶ 9, 984 N.E.2d 154. The justice clause provides a narrow window through which courts can undo sales because of serious defects in the actual sale process, and not because of alleged errors in the process leading up to the underlying judgment. NAB Bank, 2013 IL App (1st) 121147, ¶ 19, 984 N.E.2d 154. Here, the Administrator contends that justice was not otherwise done in that the judicial sale should not have occurred because the mortgage foreclosure action was time-barred. We have already determined that the Administrator waived the claims-bar issue because he did not appeal from the final and appealable judgment of foreclosure. We find nothing in the record to show that the Administrator provided any valid ground under section 15-1508(b) on which the trial court should have refused to confirm the sale. The Administrator has not established any error in the conduct of the judicial sale that would provide a sufficient basis for setting it aside. ¶ 20 Accordingly, we find that the circuit court of Hardin County correctly confirmed the judicial sale of the foreclosed property. The judgment is affirmed. ¶ 21 Affirmed.