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Wells Fargo Bank, N.A. v. Eberhardt

APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT THIRD DIVISION
Apr 17, 2013
2013 Ill. App. 121114 (Ill. App. Ct. 2013)

Opinion

No. 1-12-1114

04-17-2013

WELLS FARGO BANK, N.A., As Trustee for the Certificate holders of Soundview Home Loan Trust 2007-OPT5, Asset-Backed Certificates, Series 2007-OPT5, Plaintiff-Appellee, v. MARTINA EBERHARDT, BENNY EBERHARDT, Defendants-Appellants.


Appeal from the

Circuit Court of

Cook County.


No. 09 CH 47336


Honorable

Daniel Patrick Brennan,

Judge Presiding.

JUSTICE PIERCE delivered the judgment of the court.

Presiding Justice Neville and Justice Hyman concurred in the judgment.

ORDER

¶ 1 Held: In mortgage foreclosure action, circuit court properly denied defendants' 2-1401 petition seeking vacature of both the judgment of foreclosure and the order approving the report of sale and distribution where flaws in the grace period notice did not prejudice the defendants. ¶ 2 Defendants Martina Eberhardt and Benny Eberhardt (the Eberhardts) appeal from the denial of their petition under section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2008)) in which they sought to vacate a judgment of foreclosure entered against them and an order approving the report of sale and distribution in relation to their property, 2 commonly known as 607 West Buckingham Place, Unit 1-E, in Chicago (the property). The Eberhardts contend that their petition should have been granted because mandatory grace period notices were issued by an entity other than the current mortgagee and because the address to which those notices were sent listed only the Eberhardts' building address and not their condominium number. ¶ 3 On July 23, 2007, the Eberhardts obtained a loan on the property from Option One Mortgage Corporation (Option One), and issued a mortgage to Option One. At a time not specified in the record, American Home Mortgage Servicing, Incorporated (American) became the successor-in-interest to Option One. American assigned the mortgage to Wells Fargo Bank, N.A., as trustee for the certificate holders of Soundview Home Loan Trust 2007-OPT5, asset-backed certificates, series 2007-OPT5 (Wells Fargo) on August 27, 2008. But it was American which mailed grace period notices to the Eberhardts on May 29, 2009. Wells Fargo filed a complaint for foreclosure against the Eberhardts on November 25, 2009, and obtained a judgment of foreclosure and sale on April 6, 2011. An order approving the report of sale and distribution was issued later that year. ¶ 4 The Eberhardts filed their section 2-1401 petition on January 24, 2012. They sought vacature of the "case" because the grace period notices were addressed to the general building address of the property instead of including their condominium number. As a second basis, they alleged that American mailed the notices, but American was not then the mortgagee, which was the party required to mail the notice. 735 ILCS 5/15-1502.5(c) (West 2008). The Eberhardts' 3 petition was denied on February 21, 2012, and their motion to reconsider was denied on April 3, 2012. ¶ 5 The appellee, Wells Fargo, has failed to file a responsive brief, but we find that we may consider this appeal on the Eberhardts' brief alone. People v. Cosby, 231 Ill. 2d 262, 285 (2008); First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976). ¶ 6 The Eberhardts have cited no authority holding that the issuance of a grace period notice by a former mortgagee, or the mailing of that notice to an address which is not complete but still allows delivery, renders a subsequent judgment entered against the mortgagors void. To the contrary, we have recently held that a grace period notice sent in substantial compliance with section 15-1502.5 does not require vacature of a subsequent judgment where a technical defect has occurred. Aurora Loan Services, LLC v. Pajor, 2012 IL App (2d) 110899, ¶ 28. Here, as in Aurora, there is no evidence that the Eberhardts were prejudiced because the grace period notice was not completely accurate in listing their address or because it was mailed by an entity other than the mortgagee. Id. ¶ 26. The Eberhardts do not contend that they failed to receive this notice or that its language did not comply with the statute requiring it. Where the process did not occur exactly as the statute dictates, there is no requirement to require a futile act to redo the process Id. ¶ 27. ¶ 7 The facts of this case are far afield from those in Figueroa v. Deacon, 404 Ill. App. 3d 48 (2010), cited by the Eberhardts. Figueroa concerned a forcible detainer action in which the landlord did not personally serve the tenants, as required by statute, but instead left the notice at the apartment. Id. at 50. The landlord was awarded a judgment for back rent and possession. Id. at 51. On appeal, the court held that the requirements for service were jurisdictional, and the landlord's failure to substantially comply with those requirements deprived the circuit court of jurisdiction. Id. at 52. Here, the grace period notice substantially complied with the statutory 4 requirements for mailing grace period notices. These notices are intended to allow the mortgagor time to obtain approved housing counseling advice when he is more than 30 days delinquent on his mortgage payments. 735 ILCS 5/15-1502.5(c) (West 2008). As we have noted, the Eberhardts do not contend that they did not receive these notices, or that they were not permitted the grace period in which to obtain approved advice concerning their delinquency. Under these circumstances, we find no basis for overturning the circuit court's ruling denying the Eberhardts' section 2-1401 petition. ¶ 8 For the reasons set forth in this order, we affirm the judgment of the circuit court. ¶ 9 Affirmed.


Summaries of

Wells Fargo Bank, N.A. v. Eberhardt

APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT THIRD DIVISION
Apr 17, 2013
2013 Ill. App. 121114 (Ill. App. Ct. 2013)
Case details for

Wells Fargo Bank, N.A. v. Eberhardt

Case Details

Full title:WELLS FARGO BANK, N.A., As Trustee for the Certificate holders of…

Court:APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT THIRD DIVISION

Date published: Apr 17, 2013

Citations

2013 Ill. App. 121114 (Ill. App. Ct. 2013)