                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                    Bank of America, N.A. v. Luca, 2013 IL App (3d) 120601




Appellate Court            BANK OF AMERICA, N.A., Plaintiff-Appellee, v. SERGIU LUCA,
Caption                    ELENA LUCA, and THE LAKELANDS ESTATE HOMEOWNERS
                           ASSOCIATION CORPORATION, Defendants-Appellants.


District & No.             Third District
                           Docket No. 3-12-0601


Rule 23 Order filed        July 25, 2013
Motion to publish
allowed                    September 11, 2013
Opinion filed              September 11, 2013


Held                       Defendants’ petition filed pursuant to section 2-1401 of the Code of Civil
(Note: This syllabus       Procedure, which challenged the order of possession and all of the other
constitutes no part of     orders entered in a foreclosure action filed against them, was properly
the opinion of the court   denied, notwithstanding their contentions that plaintiff’s notice of a grace
but has been prepared      period was sent only to defendant and not his wife and that the 60-day
by the Reporter of         possession order granted by the trial court gave them additional time to
Decisions for the          file their petition, since a technical defect in the grace-period notice does
convenience of the         not necessarily warrant dismissal of a foreclosure action, especially in the
reader.)
                           absence of any prejudice, as in defendants’ case, and in view of the fact
                           that defendants’ petition was filed within the 60 days granted by the trial
                           court, section 2-1203 of the Code applied, not section 2-1401, and
                           defendants’ petition was not supported by any allegations of prejudice.


Decision Under             Appeal from the Circuit Court of Will County, No. 09-CH-3940; the
Review                     Hon. Richard J. Siegel, Judge, presiding.
Judgment                   Affirmed.


Counsel on                 Stephen Richek, of Chicago, for appellants.
Appeal
                           Louis J. Manetti, Jr., and Margaret Manetti, both of Codilis & Associates,
                           P.C., of Burr Ridge, for appellee.


Panel                      JUSTICE CARTER delivered the judgment of the court, with opinion.
                           Presiding Justice Wright and Justice Lytton concurred in the judgment
                           and opinion.




                                             OPINION

¶1           The plaintiff, Bank of America, N.A., filed a foreclosure action against the defendants,
        Sergiu and Elena Luca. The plaintiff filed motions for entry of an order confirming judicial
        sale and for entry of an order of possession. The circuit court entered the order of possession
        for the plaintiff, but granted the defendants an extension of possession from 30 days to 60
        days. The defendants filed a petition pursuant to section 2-1401 of the Code of Civil
        Procedure (Code) (735 ILCS 5/2-1401 (West 2012)) challenging the order of possession and
        all prior orders, which the circuit court denied. After the court denied the defendants’ motion
        to reconsider, the defendants appealed. On appeal, the defendants argue that the circuit court
        erred when it denied their section 2-1401 petition. We affirm.

¶2                                             FACTS
¶3          This case originated in the circuit court on September 2, 2009, when the plaintiff filed
        a foreclosure action against the defendants regarding a home in Plainfield, Illinois. The
        complaint was preceded by a grace-period notice mailed by the plaintiff in April 2009 to the
        home, which was addressed only to defendant Sergiu Luca.
¶4          In late 2009, the plaintiff mailed a notice to the defendants of a motion for default and
        judgment for foreclosure. The defendants’ answer to the motion provided details on how the
        home was damaged and why they ceased making payments, acknowledged they had
        consulted with an attorney, and attached pertinent documents. Subsequently, in spring 2010,
        the circuit court granted summary judgment for the plaintiff and entered an order for
        foreclosure and sale. The judicial sale of the property occurred on February 8, 2012.
¶5          On March 14, 2012, a hearing was held on the plaintiff’s motions for entry of an order
        confirming judicial sale and for entry of an order of possession. The circuit court granted


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       both of the motions. However, in doing so, the court said to the defendants, “I am going to
       give you 60 days possession, which is twice what the law requires, all right? And in that
       time, maybe you can get a lawyer who will file the appropriate motions and see if we can
       give you any kind of assistance on this.”
¶6         Additionally, the circuit court denied defendant Sergiu Luca’s motion to vacate the sale,
       which was essentially premised on an argument that the plaintiff committed “fraud and
       misrepresentation for misleading us and *** wrongful foreclosure on our home.” However,
       because defendant Sergiu Luca presented no evidence to support those allegations, the court
       denied the motion.
¶7         On May 11, 2012, the defendants filed a petition to vacate pursuant to section 2-1401 of
       the Code (735 ILCS 5/2-1401 (West 2012)). In the petition, the defendants alleged that the
       due diligence requirement for section 2-1401 petitions was not an issue because the court had
       granted them 60 days “to come back to Court with any issues they are able to find.” The
       defendants also alleged that the grace-period notice sent by the plaintiff was defective
       because it was addressed only to defendant Sergiu Luca and not to defendant Elena Luca as
       well.
¶8         On May 30, 2012, the circuit court held a hearing on the defendants’ section 2-1401
       petition. The defendants’ attorney argued that defendant Elena Luca never received the grace-
       period notice, and, as such, the foreclosure action could not commence. The circuit court first
       clarified that the 60-day possession order was intended to give the defendants additional time
       to resolve the dispute with the plaintiff and that the order had nothing to do with the grace-
       period notice. Second, the court ruled that the petition failed to meet the due diligence
       requirement for section 2-1401 petitions. Accordingly, the court denied the petition.
¶9         On June 19, 2012, the defendants filed a motion to reconsider, which was denied after
       a hearing on June 27, 2012. The defendants appealed.

¶ 10                                          ANALYSIS
¶ 11       On appeal, the defendants argue that the circuit court erred when it denied their section
       2-1401 petition. Specifically, they argue that their section 2-1401 petition could not be
       denied for a lack of due diligence because the trial court had granted them 60 days to return
       to court with an appropriate motion. The defendants also argue that their petition should have
       been granted because the grace-period notice was defective due to its failure to include
       defendant Elena Luca as an addressee.
¶ 12       Our review of the record in this case reveals that despite the fact that the defendants
       styled their motion as a section 2-1401 petition, it was actually a motion brought pursuant
       to section 2-1203 of the Code (735 ILCS 5/2-1203 (West 2012)). The final judgment at issue
       in this case was the circuit court’s ruling of March 14, 2012, that confirmed the judicial sale
       and ordered the plaintiff possession. See JP Morgan Chase Bank v. Fankhauser, 383 Ill.
       App. 3d 254, 260 (2008). When it entered that ruling, the court told the defendants, “I am
       going to give you 60 days possession, which is twice what the law requires, all right? And
       in that time, maybe you can get a lawyer who will file the appropriate motions and see if we
       can give you any kind of assistance on this.” In doing so, the court extended the time within

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       which the defendants could file a postjudgment motion from 30 days to 60 days. With that
       extension, the motion filed by the defendants in this case on May 11, 2012–which was within
       the 60-day window–could not have been a petition brought pursuant to section 2-1401
       because that section provides a potential remedy only after the time for filing a postjudgment
       motion has expired. See 735 ILCS 5/2-1401(a), (c) (West 2012); In re Haley D., 2011 IL
       110886, ¶ 66.
¶ 13       In contrast to section 2-1401, section 2-1203 provides, “[i]n all cases tried without a jury,
       any party may, within 30 days after the entry of the judgment or within any further time the
       court may allow within the 30 days or any extensions thereof, file a motion for a rehearing,
       or a retrial, or modification of the judgment or to vacate the judgment or for other relief.”
       (Emphasis added.) 735 ILCS 5/2-1203(a) (West 2012). Because the defendants’ motion was
       filed within the 60-day postjudgment window given by the circuit court, section 2-1203
       applies. See Geisler v. Everest National Insurance Co., 2012 IL App (1st) 103834, ¶ 50
       (“[t]o determine whether a motion is a proper posttrial motion, we must review the substance
       of the motion, and not just its title”).
¶ 14       When reviewing a motion brought pursuant to section 2-1203, “the appellate court must
       examine not merely whether the court’s order *** represented an abuse of discretion but,
       rather, whether regarding that order, substantial justice is being done between the parties.”
       In re Marriage of Sutherland, 251 Ill. App. 3d 411, 414 (1993). We also note that we can
       affirm the circuit court’s judgment based on any ground supported by the record. Dookeran
       v. County of Cook, 2013 IL App (1st) 111095, ¶ 52.
¶ 15       In part, section 15-1502.5(c) of the Code requires that a grace-period notice inform the
       mortgagor of certain matters and that it be mailed in an envelope that is “addressed to the
       mortgagor at the common address of the residential real estate securing the mortgage.” 735
       ILCS 5/15-1502.5(c) (West 2012). If this and other requirements are not met, a mortgagee
       is prohibited from filing a foreclosure complaint. 735 ILCS 5/15-1502.5(b) (West 2012).
       However, a technical defect in the notice sent to the mortgagor will not necessarily warrant
       a dismissal of a foreclosure action. Aurora Loan Services, LLC v. Pajor, 2012 IL App (2d)
       110899, ¶ 25.
¶ 16       In Pajor, the Second District held that, “[w]here, as here, the mortgagor has alleged only
       a technical defect in the notice and has not alleged any resulting prejudice, a dismissal of the
       foreclosure complaint to permit new notice of the grace period would be futile; we would not
       read the section to require such a result unless its plain language compelled it.” Pajor, 2012
       IL App (2d) 110899, ¶ 27. The Second District further held that nothing in section 15-1502.5
       required a flawless grace-period notice before a foreclosure complaint could be filed. Pajor,
       2012 IL App (2d) 110899, ¶ 28.
¶ 17       In this case, the only argument set forth by the defendants in their motion was that the
       grace-period notice was defective due to its failure to include defendant Elena Luca as an
       addressee. Not only did the defendants fail to allege any prejudice in their motion (see Pajor,
       2012 IL App (2d) 110899, ¶ 27), the record belies any claim that defendant Elena Luca had
       no knowledge of the grace-period claim. Defendant Sergiu Luca alleged in his written motion
       to vacate on March 14, 2012, that the plaintiff was liable “for fraud and misrepresentation


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       for misleading us and for wrongful foreclosure on our home.” (Emphasis added.) He also
       stated that, “[t]he reason for all this because they lied us and promise us we are approved for
       a modification.” These statements indicate that both defendants had received the grace-period
       notice, and even indicate that there had been some dialogue between the defendants and the
       plaintiff regarding loan modification. Under these circumstances, we find the defendants’
       grace-period argument to be meritless. Accordingly, we hold that the circuit court did not err
       when it denied the defendants’ postjudgment motion. See Pajor, 2012 IL App (2d) 110899,
       ¶ 28; Goldberg v. Astor Plaza Condominium Ass’n, 2012 IL App (1st) 110620, ¶ 73 (stating
       that “[i]f the process that was utilized did not occur exactly as the statute dictates, the law
       would not require a futile act to redo the process”).

¶ 18                                    CONCLUSION
¶ 19      For the foregoing reasons, the judgment of the circuit court of Will County is affirmed.

¶ 20      Affirmed.




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