                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




             U.S. Bank National Ass’n v. Prabhakaran, 2013 IL App (1st) 111224




Appellate Court            U.S. BANK NATIONAL ASSOCIATION, as Trustee for Credit Suisse
Caption                    First Boston Heat 2005-5, Plaintiff-Appellee, v. JEAN J.
                           PRABHAKARAN, Defendant-Appellant.



District & No.             First District, Sixth Division
                           Docket No. 1-11-1224


Rule 23 Order filed        November 30, 2012
Rule 23 Order
withdrawn                  February 6, 2013
Opinion filed              February 15, 2013


Held                       Based on defendant’s participation in plaintiff’s foreclosure proceedings
(Note: This syllabus       from their beginning, she was not entitled to use her petition under
constitutes no part of     section 2-1401 of the Code of Civil Procedure as an alternative means of
the opinion of the court   seeking relief after the confirmation of the judicial sale of her property,
but has been prepared      especially in view of the language of section 15-1509(c) of the Mortgage
by the Reporter of         Foreclosure Law barring such relief.
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 07-CH-21109; the
Review                     Hon. John C. Griffin, Judge, presiding.



Judgment                   Affirmed.
Counsel on                   Barbosa Law Group, P.C., of Chicago (Raymond Barbosa, of counsel),
Appeal                       for appellant.

                             Locke Lord LLP, of Chicago (Hugh S. Balsam, Simon Fleischmann, and
                             Ryan M. Holz, of counsel), for appellee.


Panel                        JUSTICE REYES delivered the judgment of the court, with opinion.*
                             Presiding Justice Lampkin and Justice Hall concurred in the judgment
                             and opinion.



                                                 OPINION

¶1          In this mortgage foreclosure action, the defendant, Jean J. Prabhakaran, appeals the
        circuit court of Cook County’s denial of her petition to vacate the foreclosure judgment and
        confirmation of sale pursuant to section 2-1401 of the Code of Civil Procedure (Code) (735
        ILCS 5/2-1401 (West 2008)). The defendant alleges the confirmation of sale was void
        because the plaintiff, U.S. Bank, N.A. (U.S. Bank), as trustee for Credit Suisse First Boston
        Heat 2005-5 (Credit Suisse), accepted additional payments from the defendant after the
        judgment of foreclosure was entered. The defendant also asserts she presented a meritorious
        defense in her section 2-1401 petition. For the reasons that follow, we affirm the judgment
        of the circuit court.

¶2                                         BACKGROUND
¶3           On August 8, 2007, America’s Servicing Company (ASC) filed a complaint to foreclose
        a mortgage against the defendant pursuant to sections 15-1504(a)(1) through (a)(3) of the
        Illinois Mortgage Foreclosure Law (Foreclosure Law) (735 ILCS 5/15-1504(a)(1)-(a)(3)
        (West 2006)). ASC alleged, inter alia, that the defendant was in default of her residential
        mortgage loan in an amount of unpaid principal totaling $130,116.91. ASC brought the suit
        as the legal holder of the indebtedness and attached to the complaint a copy of the mortgage.
        The mortgage identified the defendant as the mortgagor, the CIT Group/Consumer Finance,
        Inc., as the lender, and Mortgage Electronic Registration Systems, Inc., as the mortgagee.
        The complaint later was amended to reflect that the correct plaintiff at the time of filing the
        lawsuit was U.S. Bank, as trustee for Credit Suisse.
¶4           A special process server from Provest, LLC, personally served the defendant with the
        foreclosure complaint on August 10, 2007, at the subject property, 1412 South 6th Avenue
        in Maywood, Illinois. The defendant, represented by counsel, answered the complaint and

                 *Justice Rodolfo Garcia originally participated in the disposition of this case. Justice Garcia
        is no longer with the appellate court. Therefore, Justice Jesse Reyes will serve in his stead and has
        read the briefs and record and participated in the disposition of this case.
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       asserted she was not in default on the loan until U.S. Bank refused tender of her mortgage
       payments.
¶5         On January 18, 2008, U.S. Bank moved for summary judgment, asserting the defendant’s
       answer failed to raise a genuine issue of material fact. In support of its motion, U.S. Bank
       submitted an affidavit of judgment detailing the default. The affiant, Jamie Padmore, averred
       that the defendant “failed to make payments in accordance with the Note sued on herein and
       the loan is due for the 03/01/2007 payment. Plaintiff elected to accelerate the indebtedness
       pursuant to the terms of the Mortgage and Note, and there is due and owing as of March 11,
       2008,” a total of $147,263.31.
¶6         The defendant responded to the summary judgment motion on May 28, 2008, asserting
       “ongoing mortgage payments were made by the Defendant to the Plaintiff and/or Plaintiff’s
       assigns on an ongoing basis to and including February 2008.” The defendant contended the
       plaintiff failed to account for those payments and instead applied them to the defendant’s
       account “in an escrow deficiency.” The defendant responded that “copies of all remittances
       and verification of payments made to the Cook County Assessor” were attached in an
       exhibit. Five money orders and four checks with payments made to ASC between January
       2007 and December 2007 were attached as unverified exhibits.
¶7         On June 4, 2008, U.S. Bank replied in support of its summary judgment motion,
       contending the defendant’s response was not supported by affidavit. U.S. Bank argued the
       defendant’s failure to include an affidavit in her response required the circuit court to admit
       the factual matters asserted in the plaintiff’s affidavit and, thus, no genuine issue of fact
       remained as to the defendant’s default.
¶8         The circuit court granted U.S. Bank’s summary judgment motion on June 10, 2008. The
       court also entered a judgment of foreclosure on the same date. The defendant did not appeal
       these findings.
¶9         The property was subsequently sold to U.S. Bank on December 23, 2009 by judicial sale.
       On January 5, 2010, the circuit court confirmed the sale and entered an in rem deficiency
       judgment of $100,479.39. The defendant did not appeal the court’s order confirming the sale.
       The judicially appointed selling officer executed a judicial sale deed to U.S. Bank on January
       19, 2010.
¶ 10       On March 15, 2010, the defendant filed a pro se motion to stay possession, asserting
       “modification agreement in play since Oct. 20, 2009 making new instalament [sic] payments
       $1,300.14 per agreement. First payment due and paid Jan. 1, 10.” The defendant attached to
       her motion an October 20, 2009 correspondence from ASC notifying the defendant of
       “upcoming changes to your adjustable rate mortgage loan interest rate and payment. The
       interest rate change date for your loan is December 01, 2009, with a new payment effective
       date of January 01, 2010.” The correspondence indicated the “new total payment (including
       escrow, if applicable) due on January 01, 2010 is $1,300.14.” Also attached to the
       defendant’s motion was a March 4, 2010 correspondence from ASC indicating that it was
       refunding the $1,300.14 payment made by the defendant “because they do not represent the
       total amount due on your account.”
¶ 11       The defendant appeared in court on March 15, 2010 and claimed she was not given

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       notice of the foreclosure proceedings. The circuit court stayed possession until April 30,
       2010.
¶ 12       In response to the defendant’s motion to stay possession, U.S. Bank submitted to the
       court proof of service of process upon the defendant, the appearance of defense counsel (who
       had not withdrawn from the case), plaintiff’s notice of motion for judgment to defense
       counsel, the response defense counsel filed on the defendant’s behalf, the plaintiff’s notice
       of sale, and notice of motion for order approving sale. U.S. Bank also attached an affidavit
       averring that the defendant did not have a loan modification agreement with the plaintiff in
       October 2009 or at any point thereafter. According to the affiant, Elizabeth Mathis, vice-
       president of loan documentation for Wells Fargo Home Mortgage (Wells Fargo), U.S. Bank
       “was reviewing the loan for a possible workout plan in September 2009. This was the last
       attempt the defendant made to contact the Plaintiff and try any workout options. Any and all
       payments made after September 2009 when the defendant was denied a workout plan due to
       not providing required information were returned.”
¶ 13       On April 27, 2010, new counsel appeared for the defendant. The circuit court stayed
       possession for the defendant for an additional 21 days on April 30, 2010.
¶ 14       On May 20, 2010, the defendant filed a petition to vacate judgment pursuant to section
       2-1401. The defendant contended the circuit court’s summary judgment order was invalid
       and void “because after the entering of the judgment, [U.S. Bank] continued to accepted [sic]
       mortgage payments from [the defendant] until September 2009.” The defendant argued that
       U.S. Bank was unjustly enriched at the expense of the defendant. “Failure to set aside this
       default judgment will amount to a miscarriage of justice, unconscionable and a double
       windfall to [U.S. Bank] from June 2009 through September 2009.” The petition did not
       include any proof of payment by the defendant to U.S. Bank from June 2009 through
       September 2009. The only payments attached to the petition were made by the defendant to
       Wells Fargo/ASC beginning on October 31, 2009 and ending on May 1, 2010. The defendant
       asserted U.S. Bank “should be estopped from asserting any further rights under the terms of
       the judgment entered on June 8, 2008.” The defendant claimed a “good and meritorious
       defense to [U.S. Bank’s] cause of action and diligent in promptly thereafter presenting this
       petition to the Court.” The defendant also attached to her petition an affidavit reiterating U.S.
       Bank was unjustly enriched, the summary judgment entered was without any fault or
       negligence of the defendant, and the defendant has a valid defense to U.S. Bank’s foreclosure
       action.
¶ 15       In response to the defendant’s section 2-1401 petition, U.S. Bank claimed the defendant
       “can no longer attack judgment in this case because the judicial deed has been delivered to
       the successful bidder and as a result, any claim by her is barred” as a matter of law pursuant
       to section 15-1509(c) of the Foreclosure Law. U.S. Bank also argued that section 2-1401
       does not apply because the Foreclosure Law provides the exclusive procedure for foreclosure
       of mortgages in Illinois. According to U.S. Bank, “The Code of Civil Procedure also
       governs, but where any Article of the Code of Civil Procedure is inconsistent with the
       [Foreclosure Law], the [Foreclosure Law] prevails,” citing section 15-1107(a), which
       provides “any other Article of the Code of Civil Procedure shall apply unless inconsistent
       with this Article and, in case of such inconsistency, shall not be applicable to actions under

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       this Article.” 735 ILCS 5/15-1107(a) (West 2008). U.S. Bank argued that the defendant not
       only failed to establish that acceptance of postjudgment payments was wrongful or unjust,
       but also failed to establish that such acceptance provided a basis to invalidate an otherwise
       proper foreclosure. U.S. Bank further asserted the defendant’s affidavit was entirely
       conclusory and did not attest to any of the facts set forth in her petition.
¶ 16       The defendant replied U.S. Bank failed to disclose to the circuit court that the successful
       bidder of the property was U.S. Bank. According to the defendant, U.S. Bank “continues to
       accept mortgage payments by Defendant knowing full well that it no longer owns the
       property. Suffice it to say that Plaintiff has committed fraud on Defendant by accepting
       payments on the property it no longer owns.” The defendant claims she sent U.S. Bank a total
       of $12,000, but was returned only $1,300 of that money. The defendant argued, “In the
       interest of justice, fairness and equity, Plaintiff’s judgment on foreclosure should be vacated
       and set aside.”
¶ 17       On March 25, 2011, the circuit court heard argument on the defendant’s section 2-1401
       petition. The court denied the defendant’s petition, from which the defendant timely appeals.

¶ 18                                          ANALYSIS
¶ 19       The defendant argues that the circuit court erred by denying her section 2-1401 petition
       because “the judgment of foreclosure did not contain S. Ct. Rule 304(a) language and was
       not final and appealable until after the approval of the judicial sale.” The defendant also
       challenges the court’s summary judgment ruling. She contends her answer to the foreclosure
       complaint raised a genuine issue of material fact as to whether a default occurred under the
       mortgage. The defendant claims the money orders and checks included in the record were
       sufficient to defeat summary judgment. The defendant additionally avers that her section 2-
       1401 petition is not barred by the Foreclosure Law and presents a meritorious defense.
¶ 20       U.S. Bank responds that the defendant’s section 2-1401 petition was properly denied for
       a number of reasons. U.S. Bank initially notes that the defendant chose not to appeal the
       order granting summary judgment, the foreclosure judgment, or the order confirming sale.
       Four months after the confirmation of sale and the selling officer’s issuance of the judicial
       deed to U.S. Bank, the defendant filed her section 2-1401 petition, now alleging that the
       foreclosure was void on grounds of unjust enrichment, waiver, and estoppel because U.S.
       Bank accepted postjudgment payments from her. U.S. Bank asserts the defendant abandoned
       her unjust enrichment argument here, but is now attempting to revive a previous argument
       that she was not in default at the time of foreclosure. U.S. Bank argues that the issue of
       whether the defendant was in default at the time of foreclosure should be forfeited because
       she failed to raise it in her section 2-1401 petition and raises it on appeal for the first time.
       In addition to forfeiture, U.S. Bank contends the defendant’s section 2-1401 petition is barred
       as a matter of law under section 15-1509(c) of the Foreclosure Law. Finally, U.S. Bank
       asserts the defendant has failed to establish the requirements of a meritorious section 2-1401
       petition.
¶ 21       The defendant misstates the procedural posture of this case by arguing the judgment of
       foreclosure did not contain Rule 304(a) (Ill. S. Ct. R. 304(a) (eff. Feb. 26, 2010)) language

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       and, therefore, was not a final judgment for purposes of appeal. A mortgage foreclosure
       judgment is not final and appealable until the circuit court enters an order approving the sale
       and directing the distribution of the property. See In re Marriage of Verdung, 126 Ill. 2d 542,
       555-56 (1989). In this case, the circuit court entered an order confirming sale on January 5,
       2010 and the deed on the property was executed in favor of U.S. Bank on January 19, 2010.
       Accordingly, the order confirming sale rendered this case final and appealable.
¶ 22        Section 2-1401 petitions provide relief from final orders and judgments after 30 days
       from entry thereof. 735 ILCS 5/2-1401 (West 2008). The defendant filed her section 2-1401
       petition well after 30 days from the order confirming sale and distribution of the property.
       A petitioner is entitled to relief under section 2-1401 if the petition sets forth specific factual
       allegations supporting each of the following elements: “(1) the existence of a meritorious
       defense or claim; (2) due diligence in presenting the defense or claim to the circuit court in
       the original action; and (3) due diligence in filing the section 2-1401 petition for relief.”
       Fiala v. Schulenberg, 256 Ill. App. 3d 922, 929 (1993).
¶ 23        Our supreme court has held that, when a circuit court denies a section 2-1401 petition,
       the standard of review to be applied is de novo. People v. Vincent, 226 Ill. 2d 1, 14 (2007).
       We also review the relevant sections of the Foreclosure Law applicable to the disposition of
       this case. “The cardinal rule of interpreting statutes, to which all other canons and rules are
       subordinate, is to ascertain and give effect to the intent of the legislature.” McNamee v.
       Federated Equipment & Supply Co., 181 Ill. 2d 415, 423 (1998). “The plain language of a
       statute provides the most reliable indicator of legislative intent, and courts will not depart
       from that language by reading into it exceptions, limitations, or conditions that conflict with
       the express legislative intent. Statutory construction is a question of law that this court
       reviews de novo.” County of Cook v. Illinois Fraternal Order of Police Labor Council, 358
       Ill. App. 3d 667, 673 (2005).
¶ 24        The defendant’s initial argument that the circuit court erred by granting summary
       judgment in favor of U.S. Bank because a genuine issue of fact existed as to whether a
       default occurred is raised for the first time on appeal. The defendant chose not to appeal the
       court’s summary judgment ruling. The defendant’s section 2-1401 petition and her reply to
       U.S. Bank’s response make no mention of the issue of whether a default occurred prior to
       the entry of the foreclosure judgment. Arguments not raised before the circuit court are
       forfeited and cannot be raised for the first time on appeal. Village of Roselle v.
       Commonwealth Edison Co., 368 Ill. App. 3d 1097, 1109 (2006). Accordingly, the defendant
       has forfeited her argument on this issue.
¶ 25        We next turn to the defendant’s assertion that her section 2-1401 petition is not barred
       by section 15-1509(a) of the Foreclosure Law. Section 15-1509(a) provides:
            “After (i) confirmation of the sale, and (ii) payment of the purchase price and any other
            amounts required to be paid by the purchaser at sale, the court (or, if the court shall so
            order, the person who conducted the sale or such person’s successor or some persons
            specifically appointed by the court for that purpose), shall upon the request of the holder
            of the certificate of sale *** promptly execute a deed to the holder or purchaser sufficient
            to convey title. Such deed shall identify the court and the caption of the case in which


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            judgment was entered authorizing issuance of the deed. *** If the deed issues to a
            grantee prior to the expiration of the period for appealing the confirmation of sale, and
            the grantee conveys title to another party within that period, that other party will not be
            deemed a bona fide purchaser unless and until such period expires without an appeal
            having been filed or, an appeal having been filed, such appeal is denied or withdrawn.”
            735 ILCS 5/15-1509(a) (West 2008).
       The defendant argues “an appeal of a foreclosure action is anticipated by 15-1509(a) and a
       2-1401 Petition provides the procedure to request the trial court to review its final judgment
       in the case.”
¶ 26        U.S. Bank responds that section 15-1509(c) of the Foreclosure Law barred the
       defendant’s section 2-1401 petition as a matter of law because the selling officer had already
       delivered a deed to U.S. Bank following the circuit court’s order confirming the sale of the
       property. According to U.S. Bank, “Reading section 15-1509(a) with section 15-1509(c), it
       is reasonable to conclude that the issuance of the deed before the time to appeal has expired
       would not bar a mortgagor from appealing the confirmation of sale.” (Emphasis in original.)
       Section 15-1509(c) states, “Any vesting of title by *** deed pursuant to subsection (b) of
       Section 15-1509, unless otherwise specified in the judgment of foreclosure, shall be an entire
       bar of (i) all claims of parties to the foreclosure ***.” 735 ILCS 5/15-1509(c) (West 2008).
       “Delivery of the deed executed on the sale of the real estate, even if the purchaser or holder
       of the certificate of sale is a party to the foreclosure, shall be sufficient to pass the title
       thereto.” 735 ILCS 5/15-1509(b) (West 2008). U.S. Bank argues applying section 2-1401
       petitions to the appeal provision in section 15-1509(a) of the Foreclosure Law would “nullify
       section 15-1509(c) and leave purchasers at foreclosure sales without repose and forever at
       risk of section 2-1401 attacks.”
¶ 27        A close reading of the plain and simple language of section 15-1509(a) does not
       contemplate the relief the defendant seeks. The defendant misinterpreted section 15-1509(a)
       and only directs the court’s attention to the section of the statute that involves the appeal of
       the confirmation of sale. Notably, in order for that portion of the clause to apply, the grantee
       (in this case, U.S. Bank), must attempt to convey title to another party before expiration of
       the period for appealing the confirmation of sale, which did not occur here. See 735 ILCS
       5/15-1509(a) (West 2008) (“If the deed issues to a grantee prior to the expiration of the
       period for appealing the confirmation of sale, and the grantee conveys title to another party
       within that period, that other party will not be deemed a bona fide purchaser unless and until
       such period expires without an appeal having been filed or, an appeal having been filed, such
       appeal is denied or withdrawn.” (Emphasis added.)).
¶ 28        In any event, the defendant did not file an appeal challenging the January 5, 2010
       confirmation of sale within the 30-day period required by Illinois Supreme Court Rule
       303(a)(1). Ill. S. Ct. R. 303(a)(1) (eff. May 30, 2008) (“The notice of appeal must be filed
       with the clerk of the circuit court within 30 days after the entry of the final judgment
       appealed from ***.”). A section 2-1401 petition is not a timely appeal; it is a new action in
       the circuit court that seeks vacation of a final judgment. See Sarkissian v. Chicago Board of
       Education, 201 Ill. 2d 95, 102 (2002) (“The filing of a section 2-1401 petition is considered
       a new proceeding, not a continuation of the old one.”).

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¶ 29        The defendant did not provide this court with any persuasive authority suggesting that
       we can apply section 2-1401 petitions to the relevant portions of section 15-1509(a) of the
       Foreclosure Law. This court has dealt with the issue in a similar context involving motions
       for default judgment under Code section 2-1301(e) (735 ILCS 5/2-1301(e) (West 2008)),
       which provides that the circuit court may, in its discretion, before final order or judgment,
       set aside any default and may on motion filed within 30 days after entry thereof set aside any
       final order or judgment upon any terms and conditions that shall be reasonable. In Mortgage
       Electronic Registration Systems, Inc. v. Barnes, 406 Ill. App. 3d 1, 2 (2010), the defendant
       appealed the circuit court’s denial of her petition to vacate the foreclosure judgment and
       confirmation of sale. “ ‘The Foreclosure Law governs the mode of procedure for mortgage
       foreclosures in Illinois [citation] and ‘any inconsistent statutory provisions shall not be
       applicable [citation].’ ” Id. at 4 (quoting 735 ILCS 5/15-1107(a) (West 2008)). Section 15-
       1508(b) of the Foreclosure Law provides that, after the foreclosure judgment and judicial
       sale, the circuit court shall confirm the sale unless the court finds that (i) a required notice
       was not given, (ii) the terms of the sale were unconscionable, (iii) the sale was conducted
       fraudulently, or (iv) justice was otherwise not done. 735 ILCS 5/15-1508(b) (West 2008).
       The Barnes court recognized that section 15-1508(b) of the Foreclosure Law was more
       restrictive and, thus, inconsistent with section 2-1301(e) because it limits the circuit court’s
       discretion to refuse confirmation of the sale to the four statutory grounds. The Barnes court
       denied the defendant relief under section 2-1301(e), reasoning:
            “If section 15-1508(b) of the Foreclosure Law did not prevail over section 2-1301(e) of
            the Code, then the latter would eviscerate the former because parties could thwart section
            15-1508(b) by filing petitions to vacate nonfinal judgments even after foreclosure sales
            have been held. Such a practice would undermine the sales process because bidders
            would have no confidence that sales would be confirmed. Therefore, defendant could not
            utilize section 2-1301(e) of the Code to circumvent section 15-1508(b) of the Foreclosure
            Law after [the plaintiff] filed its motion to approve the sale.” Barnes, 406 Ill. App. 3d at
            5.
¶ 30        From a procedural posture alone, the instant case presents a more compelling example
       of an attempt to circumvent the Foreclosure Law because here, the judicial sale was
       completed and confirmed by the circuit court on January 5, 2010. The defendant did not
       challenge the confirmation of the sale within the 30-day period to appeal. There is simply no
       Illinois authority to support the defendant’s argument that she can utilize section 2-1401 to
       circumvent section 15-1509(a) or section 15-1509(c) of the Foreclosure Law after the circuit
       court confirmed the sale of the property. If there is no relief available to the defendant under
       section 2-1301(e), it follows logically that there can be no relief under section 2-1401. It is
       undisputed that the defendant was a party to the foreclosure from its inception and cannot
       rely upon section 2-1401 as an alternative remedy once the circuit court confirmed the sale
       of the property. The clear and unambiguous language of section 15-1509(c) of the
       Foreclosure Law bars the defendant’s claims in her section 2-1401 petition and is dispositive.
       735 ILCS 5/15-1509(c) (West 2008) (“Any vesting of title by *** deed pursuant to
       subsection (b) of Section 15-1509, unless otherwise specified in the judgment of foreclosure,
       shall be an entire bar of (i) all claims of parties to the foreclosure ***.”). We need not reach

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       the issue of whether her section 2-1401 petition raises a meritorious defense.

¶ 31                                     CONCLUSION
¶ 32       Based on the foregoing, the decision of the circuit court of Cook County to deny the
       defendant’s section 2-1401 petition is affirmed. Section 15-1509(c) of the Foreclosure Law
       bars the defendant’s claims in her section 2-1401 petition.

¶ 33      Affirmed.




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