                                       2019 IL App (1st) 171296


                                                                              FIRST DISTRICT
                                                                              FOURTH DIVISION
                                                                              January 17, 2019


No. 1-17-1296


                                                                  )   Appeal from the
DEUTSCHE BANK NATIONAL TRUST CO. as Trustee                       )   Circuit Court of
for Indymac Indx Mortgage Loan Trust 2006-AR25,                   )   Cook County
Mortgage Pass-Through Certificates Series 2006-AR25,              )
                                                                  )
                Plaintiff-Appellee,                               )   No. 11 CH 4601
                                                                  )
v.                                                                )
                                                                  )   Honorable
CESAR ROMAN and IRENE ROMAN,                                      )   Daniel Patrick Brennan,
                                                                  )   Judge Presiding.
                Defendants-Appellants.                            )



       JUSTICE REYES delivered the judgment of the court, with opinion.
       Presiding Justice McBride and Justice Gordon concurred in the judgment and opinion.


                                             OPINION

¶1     Defendants Cesar and Irene Roman appeal the order of the circuit court of Cook County

which granted summary judgment in favor of plaintiff, Deutsche Bank National Trust Co. as

Trustee for Indymac Indx Mortgage Loan Trust 2006-AR25, Mortgage Pass-Through

Certificates Series 2006-AR25. On appeal, defendants maintain the circuit court’s entry of

summary judgment was entered in error where: (1) plaintiff did not follow the “mandatory

requirements” of Rule 113(c)(3); (2) the mortgage foreclosure complaint does not set forth a

valid cause of action in that the factual allegations surrounding plaintiff’s standing are
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insufficient; (3) there is no evidence in the record that plaintiff sent a notice of default and

acceleration to defendants prior to filing the foreclosure action; (4) defense counsel apprised the

circuit court that he could not attend the May 24, 2016, hearing due to a medical emergency, but

the hearing commenced regardless violating defendants’ procedural and substantive due process

rights; (5) defendants’ certifications contradicted plaintiff’s loss mitigation affidavit creating a

genuine issue of material fact; and (6) the affidavit as to military service filed by plaintiff was

improperly executed by an employee of One West Bank and not by plaintiff’s counsel requiring

the complaint to be “dismissed.” For the reasons stated herein, we dismiss the appeal as moot.

¶2                                        BACKGROUND

¶3     This matter has a long litigation history, accordingly only those facts relevant to this

appeal will be recited herein.

¶4     Plaintiff filed a complaint to foreclose a mortgage against defendants on February 8,

2011, for a property located at 1460 W. Cortez Street in Chicago (the property). In its complaint,

plaintiff alleged that it was the legal holder of the indebtedness. The mortgage and note were

executed by IndyMac Bank, F.S.B., the lender, and the note was endorsed in blank. The

mortgage provided that Mortgage Electronic Registration Systems, Inc. (MERS) is a separate

corporation that is acting solely as a nominee for the lender and the lender’s successor and

assigns. The mortgage further indicated that MERS “is the mortgagee under this Security

Instrument.”

¶5     Defendants appeared and filed a motion to dismiss the complaint, which, after the matter

was fully briefed, was denied by the circuit court. After granting defendants numerous

extensions of time to file an answer, plaintiff moved for a default judgment, which the circuit

court granted on July 24, 2012. A judgment of foreclosure and sale was also entered that day.



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Defendants then moved to vacate the default judgment, which the trial court granted on October

23, 2012. That same day defendants filed their answer.

¶6     After various pleadings were considered by the circuit court irrelevant to this appeal,

plaintiff filed a motion for summary judgment and for an entry of a judgment of foreclosure and

sale on February 16, 2016. In support of its motion, plaintiff attached an affidavit of the servicer

of the loan who averred the amounts due and owing. Also attached to the motion was an

affidavit as to military service, which provided that counsel for the plaintiff had conducted an

online search of the United States Department of Defense Manpower Data Center regarding the

defendants’ current military status and that those results indicated that none of the defendants

were currently on active duty in the United States Military. Plaintiff also provided a copy of the

assignment which set forth that MERS as nominee for IndyMac Bank, F.S.B., its successors or

assigns assigned to plaintiff the mortgage and note at issue. The assignment indicated it was

executed on February 11, 2011. The motion for summary judgment was further accompanied by

a loss mitigation affidavit pursuant to Illinois Supreme Court Rule 114 (eff. May 1, 2013), which

set forth the attempts made to provide defendants with loss mitigation options.

¶7     The circuit court set a briefing schedule for the motion for summary judgment and

provided that defendants had until April 14, 2016, to file their response. Defendants, however,

did not timely file their response and, on May 10, 2016, requested leave to file their response

instanter. In their response, defendants argued that (1) they did not receive a grace period notice

as required by the Foreclosure Law (735 ILCS 5/15-1503(b) (West 2016)), and (2) plaintiff did

not send a “notice of foreclosure” to the alderman of the ward where the property is located.

Defendants maintained that at a minimum plaintiff’s failings create a genuine issue of material

fact as to whether the statutory preconditions for filing a complaint for foreclosure had been met.



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Attached to the response to the motion for summary judgment were two unsigned “verification

by certifications” from defendants, which indicated they did not receive a grace period notice

from plaintiff.

¶8     Prior to the circuit court’s ruling on the defendants’ motion for leave to file the response

instanter, plaintiff filed its reply. Therein, plaintiff argued that because defendants were not

residing at the property address at the time the complaint was filed they were not entitled to a

grace period notice pursuant to section 15-1502.5(c) of the Foreclosure Law (735 ILCS 5/15­

1502.5(c) (West 2016)). Plaintiff further maintained that it was not required to send a notice to

the alderman because the complaint was initially filed in 2011 and the requirement for providing

a notice to the alderman was not in effect until June 1, 2013.

¶9     On May 26, 2016, the date of the scheduled hearing, the circuit court entered summary

judgment in favor of the plaintiff along with a judgment of foreclosure and sale. 1 The judgment

of foreclosure entered was in the amount of $1,144,354.77 and provided for a redemption date of

August 25, 2016.

¶ 10   On August 23, 2016, three days prior to the scheduled judicial sale of the property,

defendants filed a motion to vacate the summary judgment and the judgment of foreclosure and

sale. In the motion, defendants again argued that they did not receive a grace period notice and

that plaintiff failed to send a notice to the alderman. They also set forth new arguments, that: (1)

they did not receive a notice of default and acceleration from plaintiff prior to the filing of the

complaint; (2) defendant Cesar Roman’s “certification” 2 contradicted plaintiff’s loss mitigation



       1
          The record on appeal does not contain a transcript of the proceedings and no
bystander’s report has been filed for any of the hearing dates. See Ill. S. Ct. R. 323(c) (eff. July
1, 2017).
       2
           We note that none of defendants’ “certifications” included in the record are signed.
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affidavit thereby creating a genuine issue of material fact as to whether plaintiff attempted to

notify defendants regarding possible loss mitigation options; and (3) plaintiff relied on an invalid

assignment to establish its standing and therefore the complaint was void ab initio.

¶ 11   Defendants further argued that the entry of summary judgment was improper where

defendants were denied procedural due process. Specifically, defendants asserted that defense

counsel was unable to attend the May 24, 2016, hearing due to a medical emergency and that he

had another attorney appear at the hearing on his behalf. After the hearing occurred, the

coverage attorney reported to defense counsel that he informed the court of defense counsel’s

condition but the “Court supposedly stated that it knew nothing about [defense counsel’s]

condition, that it had not received a courtesy copy of the Defendants’ Response; and that, since a

hearing on Plaintiff’s motion had been scheduled for May 24th, it was going to go ahead and

enter Summary Judgment against both Defendants and a Judgment of Foreclosure and Sale in

favor of Plaintiff.” Defendants maintained that their procedural due process rights were violated

where it was “evident” that they were prevented from having an opportunity to respond to

plaintiff’s motion for summary judgment. The next day, August 24, 2016, defendants filed an

emergency motion to stay the sale of the property scheduled for August 26, 2016.

¶ 12   On August 25, 2016, the circuit court entertained the emergency motion to stay the sale

as well as the motion to vacate. After a hearing on the motions, the circuit court denied

defendants’ motion to vacate, but granted the motion to stay the judicial sale until after October

19, 2016. The property was subsequently sold at judicial sale on October 20, 2016, to Cortez

Vilico LLC, the highest bidder, for $739,300. Plaintiff then filed a motion to confirm the sale

requesting a personal deficiency be entered against Cesar Roman, including additional fees and

costs incurred between the time of the entry of the judgment of foreclosure and the order



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approving sale, in the amount of $449,331.97. A briefing schedule was entered on the motion to

confirm the sale, which provided defendants until January 3, 2017, to file their response.

Defendants, however, failed to timely file their response and on January 20, 2017, moved to have

their response be filed instanter. In their response, defendants reiterated their arguments set forth

in their motion to vacate and again requested that the circuit court vacate the motion for

summary judgment and the judgment of foreclosure and sale.

¶ 13     On February 7, 2017, the circuit court granted defendants’ motion to file its brief

instanter. The circuit court also granted Cortez Vilico LLC’s motion to intervene, file an

appearance, and file a reply to the motion to confirm the sale. Thereafter, Vilico LLC d/b/a

Cortez Vilico LLC (Cortez Vilico LLC) filed its appearance and a reply to the motion to confirm

the sale arguing none of the grounds of section 15-1508(b) applied to the judicial sale. Plaintiff

also filed a reply to the motion to confirm the sale arguing that defendants did not present any

reason pursuant to section1 5-1508(b) as to why the sale should not be confirmed and,

regardless, the arguments set forth by defendants had already been adjudicated in plaintiff’s

favor.

¶ 14     On March 8, 2017, the circuit court entered the order approving the sale, confirmed the

sale, and entered an order for possession. The order approving the sale stated that “all notices

required by 735 ILCS 5/15-1507(c) have been properly given” to the appropriate parties. It

further stated that the “sale was fairly and properly made,” conformed to the terms of the circuit

court’s judgment, and therefore “justice was done.” The order indicated that the holder of the

certificate of sale was “1460 Cortez LLC.” The order also directed that upon request by the

holder of the certificate of sale, that the judicial sales officer “shall execute and deliver a deed

sufficient to convey title to the holder of the certificate of sale.” On May 18, 2017, the judicial



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deed for the property was recorded and indicated it was conveyed to “1460 CORTEZ, LLC, BY

ASSIGNMENT[.]”

¶ 15   Thereafter, defendants filed a motion to reconsider the order approving the sale and a

motion to vacate summary judgment, the judgment of foreclosure and sale, the sale, and the

order approving the sale. Defendants renewed their prior arguments, but also maintained that

summary judgment was improper because plaintiff’s motion failed to comply with Illinois

Supreme Court Rule 113(c)(3) (eff. May 1, 2013). In addition, defendants put forth more

extensive arguments about how plaintiff lacked standing. Defendants, however, did not frame

their arguments in terms of section 15-1508(b) of the Foreclosure Law. While the record on

appeal does not contain an order disposing of these motions, defendant’s subsequent motion to

set an appeal bond filed June 19, 2017, indicates that the motions were denied.

¶ 16   Defendants filed a motion to stay the order approving the sale and possession of the

property, which was denied by the circuit court. Defendants then requested leave to file a late

notice of appeal, which this court granted. Defendants did not file a motion to stay in this court.

¶ 17   Before this court, plaintiff filed a motion to dismiss the appeal pursuant to Illinois

Supreme Court Rule 305(k) (eff. July 1, 2004), arguing that the appeal was moot because the

property had been conveyed to a third party, 1460 Cortez LLC. After the motion was fully

briefed, we denied the motion. This appeal follows.

¶ 18                                       ANALYSIS

¶ 19   On appeal, defendants raise various challenges to the circuit court’s entry of summary

judgment. However, prior to addressing defendants’ contentions, plaintiff raises a question as to

this court’s jurisdiction. Indeed, plaintiff maintains that this appeal is moot where the property

has been conveyed to a third party pursuant to Illinois Supreme Court Rule 305(k) (eff. July 1,



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2004).

¶ 20     We begin by noting that although we previously denied plaintiff’s motion to dismiss this

matter under Rule 305(k), we are well within our authority to reconsider whether an issue is

moot, pursuant to our inherent authority to reconsider our prior rulings. See Horvath v. Loesch,

87 Ill. App. 3d 615, 621 (1980) (reconsidering previous denial of motion to dismiss on grounds

of mootness and granting it); Stevens v. Village of Oak Brook, 2013 IL App (2d) 120456, ¶ 37

(“A court has the inherent authority to reconsider and correct its rulings, and this power extends

to interlocutory rulings as well as to final judgments.”).

¶ 21     An appeal is moot if it involves no actual controversy, or the reviewing court cannot

grant the complaining party effectual relief. Steinbrecher v. Steinbrecher, 197 Ill. 2d 514, 522­

23 (2001). It is well established that, in the absence of a stay, when the property that is the

subject of an appeal is sold to a third party who is not a party to the litigation or a nominee for a

party to the litigation, the appeal is moot. Id. at 532; see also Northbrook Bank & Trust Co. v.

2120 Division, LLC, 2015 IL App (1st) 133426, ¶ 3; Town of Libertyville v. Moran, 179 Ill. App.

3d 800, 886 (1989). The failure to obtain a stay pending appeal, in and of itself, does not make

an issue moot. In re Tekela, 202 Ill. 2d 282, 292 (2002); Smith v. Goldstick, 110 Ill. App. 3d

431, 434 (1982). But when supervening events make it impossible for a reviewing court to grant

relief to any party, the case is rendered moot because an appellate ruling on the issue cannot have

any practical legal effect on the controversy. In re Tekela, 202 Ill. 2d at 292-93; Smith, 110 Ill.

App. 3d at 434.

¶ 22     Absent a stay of judgment pending appeal, Rule 305(k) protects third-party purchasers of

property from appellate reversals or modifications of judgments regarding the property.

Steinbrecher, 197 Ill. 2d at 523. Rule 305(k) states:



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       “If a stay is not perfected within the time for filing the notice of appeal, *** the reversal

       or modification of the judgment does not affect the right, title, or interest of any person

       who is not a party to the action in or to any real or personal property that is acquired after

       the judgment becomes final and before the judgment is stayed; nor shall the reversal or

       modification affect any right of any person who is not a party to the action under or by

       virtue of any certificate of sale issued pursuant to a sale based on the judgment and before

       the judgment is stayed.” Ill. S. Ct. R. 305(k) (eff. July 1, 2004).

¶ 23   Rule 305(k) will apply if: (1) the property passed pursuant to a final judgment; (2) the

property’s right, title, and interest passed to a person or entity who is not part of the proceeding;

and (3) the litigating party did not perfect a stay of the judgment within the time for filing a

notice of appeal. See Steinbrecher, 197 Ill. 2d at 523-24 (2001). Plaintiff argues that all of these

elements were met because: (1) the circuit court issued a confirmation order on March 8, 2017

(see MidFirst Bank v. McNeal, 2016 IL App (1st) 150465, ¶ 30 (the order confirming the sale is

the final and appealable order in a foreclosure case)); (2) on May 18, 2017, a judicial deed to the

property was recorded to 1460 Cortez LLC, who was not a party to the litigation; and (3)

defendants did not request or obtain a stay pending appeal.

¶ 24   We find the case of Steinbrecher to be dispositive of this issue. In Steinbrecher, John

Steinbrecher brought an action against his two siblings, Jerome and Rosemary, seeking to

partition property that the three siblings held together as tenants in common. Steinbrecher, 197

Ill. 2d at 516-17. The circuit court ruled the property could not be divided among the three

tenants in common without prejudice and concluded that the property should be sold at a public

sale. Id. The property was sold to the highest bidder, Moser Enterprises, Inc. (Moser) and on

September 24, 1998, the circuit court confirmed the sale and directed a quitclaim deed be



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recorded in Moser’s name. Id. at 517-18. Rosemary filed posttrial motions, which were denied,

and then refused to vacate the property. Id. at 519. In October 1998, Moser sought leave to

intervene for the limited purpose of enforcing its right to possession, which was Moser’s first

appearance in the litigation. Id. The circuit court granted Moser’s petition for leave to intervene,

granted Moser’s motion for possession, and ordered Rosemary to vacate the property. Id.

Rosemary appealed, but never filed a motion to stay the judgment in the appellate court. Id. The

appellate court held that the case was not moot because Moser’s intervention in October 1998

barred the application of the rule protecting nonparty purchasers. Id. at 520. The appellate court

vacated the sale of the property. Id. John and Moser both timely appealed to the supreme court.

Id.

¶ 25   The supreme court found that Rosemary’s appeal was moot. Id. at 521. The court

explained that Rule 305(j) (now Rule 305(k)) protects “third-party purchasers of property from

appellate reversals or modifications of judgments regarding the property, absent a stay of

judgment pending the appeal.” Id. at 523. The court pointed out that the rule requires: (1) the

property was passed pursuant to a final judgment; (2) the right, title, and interest of the property

was passed to a person or entity who was not part of the proceedings; and (3) the litigating party

failed to perfect a stay of judgment within the time allowed for filing a notice of appeal. Id. at

523-24. The court further explained:

       “Public policy of this state supports our conclusion. Illinois law protects the integrity and

       finality of property sales, including judicial sales. [Citations.] Indeed, it extends this

       protection to purchasers who without notice at the time of the purchase buy in good faith.

       This finality and permanence is relied on by both purchasers and others in connection

       with the purchase of the property. Absent this policy, no person would purchase real



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       property involved in a judicial proceeding, if afterwards he incurred the hazard of losing

       the property due to facts unknown to him at the time of the sale.” Id. at 528-29.

The court applied the requirements to the facts of the case before it, and noted that the rights to

the property passed pursuant to a final judgment, to a nonparty to the litigation at the time of the

judgment and sale, Moser, and Rosemary failed to perfect a stay of judgment and therefore the

appeal was moot under Rule 305(j). Id. at 524-26.

¶ 26   Here, the record discloses that the property passed pursuant to a final judgment on March

8, 2017, when the order approving the sale was entered. See Wells Fargo Bank, N.A. v.

McCluskey, 2013 IL 115469, ¶ 12 (it is the order confirming the sale, rather than the judgment of

foreclosure, that operates as the final and appealable order in a foreclosure case). The record

further discloses that defendants failed to perfect a stay of the judgment within the time for filing

the notice of appeal; not only did defendants fail to obtain a stay in the trial court, they did not

even request a stay in this court. See In re Tekela, 202 Ill. 2d at 289.

¶ 27   The main issue of contention, however, is whether 1460 Cortez LLC was a party to the

proceeding. We conclude that it was not. First, 1460 Cortez LLC did not move to intervene in

the action and the record does not disclose its relationship to Cortez Vilico LLC. Second,

assuming 1460 Cortez LLC is related to Cortez Vilico LLC, for us to conclude Cortez Vilico

LLC participated in the foreclosure litigation as anticipated by Rule 305(k) goes against the spirit

of Steinbrecher. Our supreme court in Steinbrecher clearly set forth that when the third-party

purchaser “acquired title to the property pursuant to the judgment and sale, and at all times prior,

neither was it ‘[o]ne by or against whom a lawsuit is brought’ nor did it have a stake or standing

in the partition lawsuit.” Steinbrecher, 197 Ill. 2d at 526. The third-party purchaser was a “mere

purchaser of the property” and therefore, at the time of the judgment and sale it was a nonparty



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for the purposes of Rule 305. Id. The Steinbrecher court went on to explain the public policy

behind Rule 305 to protect the integrity and finality of property sales, including judicial sales and

that absent a policy of finality and permanence, “no person would purchase real property

involved in a judicial proceeding, if afterwards he incurred the hazard of losing the property due

to facts unknown to him at the time of the sale.” Id. at 529. This concept was reiterated in this

court’s decision Northbrook Bank & Trust Co. See Northbrook Bank & Trust Co, 2015 IL App

(1st) 133426, ¶¶ 3, 5 (observing that Rule 305(k) protects the rights of a third-party purchaser

from the reversal or modification of a judgment regarding that property). Similarly here, Cortez

Vilico LLC was a “mere purchaser of the property” and had no interest in the foreclosure

litigation other than to protect its future possessory interest in the property. Accordingly, we

agree with plaintiff that this appeal should be dismissed as moot under Rule 305(k).

¶ 28                                      CONCLUSION

¶ 29   For the reasons stated above, appeal is dismissed as moot pursuant to Rule 305(k).

Appeal dismissed.




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