                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




           Nationwide Advantage Mortgage Co. v. Ortiz, 2012 IL App (1st) 112755




Appellate Court            NATIONWIDE ADVANTAGE MORTGAGE COMPANY, Plaintiff-
Caption                    Appellee, v. MIGUEL ORTIZ, Defendant-Appellant.



District & No.             First District, Sixth Division
                           Docket No. 1-11-2755


Filed                      June 29, 2012


Held                       In mortgage foreclosure proceedings, defendant forfeited his claim that
(Note: This syllabus       plaintiff lacked standing to bring the action by failing to raise the issue
constitutes no part of     until after the foreclosure judgment was entered, and the sale was
the opinion of the court   properly confirmed.
but has been prepared
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 09-CH-39049; the
Review                     Hon. Mathias Delort, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 Peter T. Silvern and Jennifer L. Kanik, both of Law Offices of Peter T.
Appeal                     Silvern, of Evanston, for appellant.

                           Jennifer E. Frick, of Codilis & Associates, P.C., of Burr Ridge, for
                           appellee.


Panel                      PRESIDING JUSTICE GORDON delivered the judgment of the court,
                           with opinion.
                           Justices Garcia and Palmer concurred in the judgment and opinion.


                                             OPINION

¶1           On October 14, 2009, plaintiff Nationwide Advantage Mortgage Company brought a
        mortgage foreclosure action, seeking possession of the property located at 7462 North Ridge
        Boulevard, Chicago, Illinois, where defendant Miguel Ortiz was the sole mortgagor. On
        March 10, 2010, plaintiff was granted judgment for foreclosure and sale pursuant to the
        Illinois Mortgage Foreclosure Law (the Law) (735 ILCS 5/15-1101 et seq. (West 2010)).
        Defendant subsequently filed motions to withdraw his answer and to dismiss plaintiff’s
        complaint under section 2-619 of the Illinois Code of Civil Procedure (735 ILCS 5/2-619
        (West 2010)) for lack of standing. The trial court granted defendant’s motions, finding that
        the assignment of the mortgage note to plaintiff was not executed until November 4, 2009,
        which was after October 14, 2009, when plaintiff filed the mortgage foreclosure complaint.
        During the 30 days between the grant of defendant’s motion to dismiss and the deadline for
        plaintiff to file a motion to reconsider, this court decided Mortgage Electronic Registration
        Systems, Inc. v. Barnes, 406 Ill. App. 3d 1, 6-7 (2010), which held that a mortgagor was
        prohibited from raising the affirmative defense of standing after the entry of a foreclosure
        order. After reviewing this decision, the trial court granted plaintiff’s motion to reconsider
        and vacated its dismissal of the case for lack of standing on March 11, 2011. Defendant then
        moved for reconsideration of the March 11 order, and the trial court denied the motion. On
        August 17, 2011, plaintiff’s sale was confirmed.
¶2           Defendant’s notice of appeal states that he appeals the trial court’s order of August 17,
        2011, confirming the sale, and the order of June 23, 2011, denying defendant’s motion to
        reconsider.
¶3           We affirm for the following reasons: (1) defendant forfeited his lack of standing defense,
        and (2) the trial court properly confirmed the judicial sale of defendant’s property.

¶4                                     BACKGROUND
¶5         Defendant Miguel Ortiz is the sole mortgagor of the subject property, located at 7462
        North Ridge Boulevard in Chicago, and has continued to reside at the property since the
        mortgage was executed on April 18, 2008. During this time, defendant rebuilt the first floor

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     of the property into a licensed and operating day care center. The mortgage defines:
     defendant as the borrower, Equity Mortgage Corporation (EMC) as the lender, and
     “Mortgage Electronic Registration Systems” (MERS) as the mortgagee. The note secured by
     the mortgage provided that the lender could transfer the note and that anyone who received
     the note by transfer was entitled to receive payments under the note and would be called the
     “Note Holder.”
¶6        On October 14, 2009, plaintiff filed a verified complaint to foreclose the mortgage,
     alleging that defendant was in default of the mortgage loan in the amount of $301,821.34 in
     unpaid principal. The complaint alleges that defendant had not paid the monthly installments
     of principal, taxes, interest, and insurance since February 1, 2009. Plaintiff’s complaint
     further alleges that it brought the suit as the legal holder of the indebtedness. On November
     13, 2009, defendant filed an appearance pro se and a verified answer.
¶7        On January 20, 2010, plaintiff filed motions for summary judgment and judgment of
     foreclosure and sale. A briefing schedule was set on the motion for summary judgment,
     which gave defendant until February 10, 2010, to file a response. Defendant failed to respond
     by the February 10 deadline, and at the March 10, 2010, hearing date, the trial court granted
     plaintiff summary judgment and judgment for foreclosure and sale. Defendant did not appear.
     Pursuant to the judgment order, plaintiff subsequently scheduled a judicial sale of the
     property for May 12, 2010. Thereafter, defendant obtained counsel, who, on June 6, 2010,
     filed an appearance and a motion to stay the judicial sale. The trial court granted the motion
     and stayed the sale until July 12, 2010. On July 12, 2010, the property was purchased by
     plaintiff at the judicial sale for the amount of the total debt owed. On August 17, 2010,
     plaintiff moved to confirm the sale.
¶8        Defendant obtained new counsel, who, on August 30, 2010, moved to withdraw
     defendant’s answer and filed a section 2-619(a)(9) motion to dismiss claiming lack of
     standing, based on the claim that plaintiff was assigned the note and mortgage after the time
     the foreclosure action was filed. Defendant claimed in its motion to dismiss that the
     foreclosure action was filed on October 14, 2009, and that the assignment was not executed
     until November 4, 2009. Plaintiff claimed in its supplemental response that it had been
     assigned the note before the foreclosure was filed, and that the assignment was not recorded
     until November 4. Plaintiff argued that “Illinois law does recognize oral assignments as
     valid” (see Buck v. Illinois National Bank & Trust Co., 79 Ill. App. 2d 101, 105 (1967)) and
     that the creation and existence of an assignment should be determined by the intention of the
     parties, which is to be derived not only from the executed instruments but also the
     surrounding circumstances. Angelina County Lumber Co. v. Michigan Central R.R. Co., 252
     Ill. App. 82, 89 (1929).
¶9        On November 20, 2010, the trial court found that the assignment occurred after the action
     was filed and that plaintiff had violated a local rule which states that, “[a]ny and all
     assignments or other documents (as applicable) demonstrating the movant’s standing to
     foreclose” must be submitted to the court prior to the consideration of entry of an order for
     judgment. Cook Co. Cir. Ct. Mortgage Foreclosure Courtroom Procedures, Particular
     Motions II(B)(2) (eff. Apr. 1, 2011). The trial court found that the complaint must be
     dismissed and refiled. The trial court denied defendant’s motion to withdraw the answer as

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       being moot, since the case was being dismissed.
¶ 10        During the 30 days between the grant of defendant’s motion to dismiss and the deadline
       for plaintiff to file a motion to reconsider, this court decided Mortgage Electronic
       Registration Systems, Inc. v. Barnes, 406 Ill. App. 3d 1, 6-7 (2010), which generally held that
       a defendant mortgagor could not raise the affirmative defense of standing after the entry of
       a foreclosure order. In response, plaintiff filed a motion to reconsider, arguing that
       defendant’s request for relief was not timely, citing Barnes. Plaintiff also claimed that the
       trial court had misapplied plaintiff’s burden and the evidentiary standard under section 2-619.
       On March 11, 2011, the trial court reversed itself on plaintiff’s motion to reconsider, relying
       on the Barnes decision as instructive, and vacated its November 2010 order. On April 11,
       2011, defendant filed a motion to reconsider, which was denied. In response to plaintiff’s
       motion to confirm the sale, defendant claimed that the “full debt” bid resulted in an
       unconscionable sale price. However, on August 17, 2011, the trial court entered an order
       confirming the sale.
¶ 11        On September 15, 2011, defendant filed a timely notice of appeal, which stated that he
       was appealing: (1) the order confirming the sale of August 17, 2011, which denied his
       objection to the confirmation of sale; and (2) the June 23, 2011, order, which denied the
       defendant’s motion to reconsider the trial court’s March 11, 2011, order in which it “reversed
       itself.”

¶ 12                                        ANALYSIS
¶ 13       Defendant appeals (1) the trial court’s order confirming the sale, entered on August 17,
       2011, and (2) the trial court’s order denying defendant’s motion to reconsider entered on
       June 23, 2011.
¶ 14       For the following reasons, we find (1) that defendant forfeited his lack of standing
       defense and (2) that the trial court properly confirmed the judicial sale of defendant’s
       property.

¶ 15                                   I. Standard of Review
¶ 16       There are two issues for our review: (1) the granting of the section 2-619 dismissal for
       plaintiff’s failure to show standing to bring a foreclosure action and (2) the denial of
       defendant’s motion to reconsider. The standard of review for both issues is de novo.
¶ 17       The appellate review of a trial court’s dismissal pursuant to section 2-619 of the Illinois
       Code of Civil Procedure is subject to a de novo review. Builders Bank v. Barry Finkel &
       Ass’ns, 339 Ill. App. 3d 1, 6 (2003). The issue is “ ‘whether the existence of a genuine issue
       of material fact should have precluded the dismissal or, absent such an issue of fact, whether
       dismissal is proper as a matter of law.’ ” Builders Bank, 339 Ill. App. 3d at 6 (quoting Kedzie
       & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116-17 (1993)). In making this
       determination, all pleadings and supporting documents will be construed in the light most
       favorable to the nonmoving party. Builders Bank, 339 Ill. App. 3d at 6.
¶ 18       De novo review is also proper where a motion to reconsider raises a question of whether


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       the trial court erred in its previous application of existing law. JP Morgan Chase Bank v.
       Fankhauser, 383 Ill. App. 3d 254, 259 (2008); Duresa v. Commonwealth Edison Co., 348
       Ill. App. 3d 90, 97 (2004). In this case, defendant appeals the order denying the defendant’s
       motion to reconsider the order entered on June 23, 2011, which granted plaintiff’s motion
       to reconsider and vacated the dismissal of plaintiff’s complaint.
¶ 19        The issue of standing is a matter of law and is also subject to de novo review. Malec v.
       City of Belleville, 384 Ill. App. 3d 465, 468 (2008) (quoting Dimensions Medical Center, Ltd.
       v. Advanced Ambulatory Surgical Center, Inc., 305 Ill. App. 3d 530, 534 (1999)).
¶ 20        Under the de novo standard of review, the reviewing court does not need to defer to the
       trial court’s judgment or reasoning. People v. Vincent, 226 Ill. 2d 1, 14 (2007). De novo
       review is completely independent of the trial court’s decision. United States Steel Corp. v.
       Illinois Pollution Control Board, 384 Ill. App. 3d 457, 461 (2008). De novo consideration
       means that the reviewing court performs the same analysis that a trial judge would perform.
       Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011).

¶ 21                                          II. Standing
¶ 22        The main issue on this appeal is whether the trial court correctly granted plaintiff’s
       motion to reconsider, which denied defendant’s section 2-619(a)(9) motion to dismiss
       plaintiff’s complaint for lack of standing.
¶ 23        On December 3, 2010, this court issued an opinion in Barnes, 406 Ill. App. 3d at 7,
       which held that when a defendant fails to argue a lack of standing before a foreclosure
       judgment, that argument is forfeited and the defendant is barred from litigating the issue
       later.
¶ 24        “The doctrine of standing is designed to preclude persons who have no interest in a
       controversy from bringing suit,” and “assures that issues are raised only by those parties with
       a real interest in the outcome of the controversy.” Glisson v. City of Marion, 188 Ill. 2d 211,
       221 (1999). “[S]tanding requires some injury in fact to a legally cognizable interest ***.”
       Glisson, 188 Ill. 2d at 221. Our Illinois Supreme Court has stated that the ‘’lack of standing
       in a civil case is an affirmative defense, which will be forfeited if not raised in a timely
       fashion in the trial court.” Greer v. Illinois Housing Development Authority, 122 Ill. 2d 462,
       508 (1988); People v. Kelly, 397 Ill. App. 3d 232, 265 (2009). As an affirmative defense, the
       lack of standing is the defendant’s burden to plead and prove. Lebron v. Gottlieb Memorial
       Hospital, 237 Ill. 2d 217, 252-53 (2010).
¶ 25        In Barnes, the defendant mortgagor failed to answer the complaint, was defaulted, and
       thereafter successfully petitioned the trial court for a continuation of the sale. Barnes, 406
       Ill. App. 3d at 7. The defendant then attempted to raise the standing issue after the order of
       foreclosure and in response to a motion to confirm the sale. Barnes, 406 Ill. App. 3d at 4. We
       found that the defendant had failed to timely raise the standing issue and, as a result, forfeited
       it. Barnes, 406 Ill. App. 3d at 6-7. Since the defendant forfeited the standing issue, we did
       not need to consider whether the plaintiff actually had standing.
¶ 26        Similarly, in the case at bar, defendant challenged plaintiff’s standing to bring the
       foreclosure action after the trial court had already granted plaintiff’s motion for summary

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       judgment and judgment for foreclosure and sale. It was not until plaintiff moved to confirm
       the sale that defendant filed a section 2-619(a)(9) motion to dismiss based on lack of
       standing. The holding in Barnes instructed us to find that because defendant did not raise the
       standing issue until after the foreclosure judgment was entered, he effectively forfeited that
       defense.
¶ 27       Defendant argues that the trial court was not required to follow Barnes in determining
       whether he timely raised the standing issue because: (1) the trial court had compelling
       reasons for departing from Barnes, (2) a factual difference justifies distinguishing the present
       case from Barnes, (3) the part of the Barnes opinion dealing with the timeliness of raising
       the standing issue was obiter dicta and therefore not binding, (4) there are public policy
       reasons for departing from the decision in Barnes, and (5) the trial court should have denied
       plaintiff’s motion to reconsider due to its equitable nature as a “chancery court.”
¶ 28       First, defendant argues that the trial court in this case had two compelling reasons for
       departing from Barnes: (1) plaintiff failed to demonstrate that it had standing prior to filing
       the foreclosure, and (2) Barnes is not well-established law. Compelling reasons may require
       a court to depart from prior precedent; however, this does not apply in cases where the court
       is merely of “the opinion that it might decide otherwise were the question a new one.”
       (Internal quotation marks omitted.) People v. Robinson, 187 Ill. 2d 461, 463-64 (1999). Any
       departure from stare decisis must be “specifically justified.” (Internal quotation marks
       omitted.) People v. Suarez, 224 Ill. 2d 37, 50 (2007). The doctrine of stare decisis “expresses
       the policy of the courts to stand by precedents and not to disturb settled points.” (Internal
       quotation marks omitted.) Suarez, 224 Ill. 2d 37 at 49 (quoting People v. Sharpe, 216 Ill. 2d
       481, 519 (2005), quoting Neff v. George, 364 Ill. 306, 308-09 (1936)). The purpose is to
       ensure that these points of law will not be lightly overruled. Moehle v. Chrysler Motors
       Corp., 93 Ill. 2d 299, 304 (1982). Defendant does not provide a specific justification for why
       we should depart in this case from our recent ruling in Barnes. The fact that the recent
       decision in Barnes is not yet well-established law is not a compelling reason to ignore it. The
       purpose of stare decisis is to “ensure that the law will not merely change erratically, but will
       develop in a principled and intelligible fashion.” Chicago Bar Ass’n v. Illinois State Board
       of Elections, 161 Ill. 2d 502, 510 (1994). This development could never occur if appellate
       courts were able to deviate from any of their prior decisions because they were not yet
       considered “well established.”
¶ 29       Second, defendant notes that the precedential value of a decision is limited to its
       particular facts. People v. Allen, 351 Ill. App. 3d 599, 606 (2004). In this case, defendant
       filed a motion to dismiss for lack of standing as part of a motion seeking leave of court to
       amend his answer, while in Barnes, the defendant sought a motion to vacate the judgment.
       Defendant argues that this factual difference is enough to distinguish the present case from
       Barnes. We do not find this argument persuasive. The fact that the defendant in Barnes
       raised the standing issue in a motion to vacate rather than some other kind of motion was not
       “very significant” to the holding of the case. Prairie Eye Center, Ltd. v. Butler, 305 Ill. App.
       3d 442, 448 (1999). What was of legal significance is the time at which the defendant raised
       the defense. Both cases involve mortgage foreclosure claims where the defendant attempted
       to raise a question as to the plaintiff’s standing to bring the action after a foreclosure

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       judgment had already been entered. Thus, the result should be the same.
¶ 30        Third, defendant argues that the part of the Barnes opinion discussing defendant’s
       forfeiture of the standing issue was obiter dicta. “Obiter dicta” is defined as comments in a
       judicial opinion that are unnecessary to the disposition of the case. People v. Williams, 204
       Ill. 2d 191, 206 (2003). “A dictum is ‘any statement made by a court for use in argument,
       illustration, analogy or suggestion. It is a remark, an aside, concerning some rule of law or
       legal proposition that is not necessarily essential to the decision and lacks the authority of
       adjudication.’ ” United States v. Crawley, 837 F.2d 291, 292 (7th Cir. 1988) (quoting Stover
       v. Stover, 483 A.2d 783, 786 (Md. Ct. Spec. App. 1984)). Defendant argues that forfeiture
       was outside the central issue raised in the Barnes appeal, which was whether the plaintiff had
       standing to bring the claim due to its status as a nominee rather than the owner of the
       mortgage note. See Cates v. Cates, 156 Ill. 2d 76, 80 (1993). Defendant argues that,
       therefore, the court’s finding that Barnes had forfeited the standing issue after the foreclosure
       judgment had been entered is not binding authority. We do not find this argument persuasive.
       In Barnes, this court held that the plaintiff did have standing; however, because we found
       that the defendant had forfeited the standing defense through her default, the determination
       of whether the plaintiff had standing when it filed the claim was irrelevant. Mortgage
       Electronic Registration Systems, Inc. v. Barnes, 406 Ill. App. 3d 1, 6 (2010). We made an
       explicit finding about the timing and the ability of a defendant to raise a standing issue,
       which was essential to the outcome of the dispute and effectively became a holding of the
       case. Barnes, 406 Ill. App. 3d at 6. Regardless of whether the plaintiff was found to have
       standing, the defendant was still prohibited from raising the defense.
¶ 31        Fourth, defendant notes that a court may reasonably deviate from precedent when public
       policy demands or where serious detriment is likely to arise that will prejudice the public
       interest. Moehle v. Chrysler Motors Corp., 93 Ill. 2d 299, 304 (1982). Defendant argues that
       the Barnes decision disproportionally impacts the rights of non-English-speaking,
       uneducated, or unsophisticated homeowners, who do not understand their rights in the
       foreclosure process. Defendant claims that court must weigh the choice between “relative
       evils”: between deviating from established law and doing what is “right” or “just,” which
       may be counter to precedent. Prall v. Burckhartt, 299 Ill. 19, 41 (1921). Specific to this case,
       defendant argues that this court must weigh Barnes’s effect on limiting frivolous claims
       designed to block foreclosure against Barnes’s effect in prohibiting borrowers with
       legitimate claims and defenses from having their day in court.
¶ 32        Although it is in the public interest to prevent lenders from filing foreclosure actions
       before the note has been assigned to them (Cook Co. Cir. Ct. Mortgage Foreclosure
       Courtroom Procedures, Particular Motions II(B)(2) (eff. Apr. 1, 2011)), it is also in the public
       interest to prevent defendants in mortgage foreclosure actions, who have consistently
       defaulted on their mortgage payments, from raising a standing defense so late in the case in
       an attempt to further evade their financial commitments.
¶ 33        Lastly, defendant argues that the equitable nature of chancery courts, combined with the
       law’s specific grant of power to determine whether “justice was not otherwise done,” should
       have resulted in the trial court’s denial of plaintiff’s motion to reconsider. Defendant claims
       that the application of the Barnes decision to this case will result in great injustice, resulting

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       from the potential loss of defendant’s primary residence and business. Defendant states that
       chancery courts have been given equitable power of fairness and justice through the history
       of Illinois courts, and that trial courts are justified in disapproving a judicially mandated
       foreclosure sale if unfairness is shown that it is prejudicial to any interested party. JP Morgan
       Chase Bank v. Fankhauser, 383 Ill. App. 3d 254, 263 (2008).
¶ 34       While there are institutional concerns relating to lenders filing foreclosure cases without
       finalizing the transfer of the loans to their name and while there is not clear evidence that
       plaintiff owned the loan at the time the claim was filed, the fact that defendant was living on
       the subject property for nearly two years without making a mortgage payment cannot be
       ignored. Furthermore, at the time the foreclosure action was filed, defendant had not made
       a mortgage payment in eight months. Therefore, after several months of evading payment on
       his mortgage, defendant’s inability to raise a defense based on plaintiff’s lack of standing is
       not unfair. Although there are concerns about the documentation practices of the lending
       industry, it is for the legislature to cure these evils. It is this court’s role to follow the law as
       made and provided, and to follow precedent under stare decisis, and in this case, Barnes is
       controlling.
¶ 35       Finally, although not addressed in defendant’s brief, plaintiff argues that the trial court
       properly confirmed the July 12, 2010, judicial sale. The statutory law states that “[u]nless the
       court finds that (i) a notice required in accordance with subsection (c) of section 15-1506 was
       not given, (ii) the terms of the sale were unconscionable, (iii) the sale 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). Defendant objected to plaintiff’s motion to
       confirm the sale, claiming that the full debt bid offered was unconscionable. The price of
       properties sold at judicial sales is dependent on a number of factors, and these properties may
       not be sold for their full value. Lyons Savings & Loan Ass’n v. Gash Associates, 189 Ill. App.
       3d 684, 689 (1989) (quoting Illini Federal Savings & Loan Ass’n v. Doering, 162 Ill. App.
       3d 768 (1987)), cert. denied, 129 Ill. 2d 564 (1990). When there is no fraud or other
       irregularity in the foreclosure proceeding, the price at which the property is sold is the
       conclusive measure of its value. Loeb v. Stern, 198 Ill. 371, 383 (1902). “ ‘[I]t is a firmly
       established rule that unless there is evidence of mistake, fraud, or violation of duty by the
       officer conducting the sale, mere inadequacy of price alone is not sufficient cause for setting
       aside a judicial sale.’ ” Lyons Savings & Loan Ass’n, 189 Ill. App. 3d at 689 (quoting Illini
       Federal Savings & Loan Ass’n, 162 Ill. App. 3d at 771). Therefore, in this case, the trial
       court correctly confirmed the July 12, 2010, judicial sale of defendant’s property.

¶ 36                                    CONCLUSION
¶ 37       For the foregoing reasons, we find (1) that defendant forfeited his lack of standing
       defense and (2) that the trial court properly confirmed the judicial sale of defendant’s
       property.

¶ 38       Affirmed.


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