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                                     Appellate Court                          Date: 2017.01.05
                                                                              08:50:27 -06'00'




             Deutsche Bank National Trust Co. v. Puma, 2016 IL App (1st) 153513



Appellate Court         DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee
Caption                 for IMPAC Secured Assets Corporation, Series 2006-3,
                        Plaintiff-Appellee, v. DAVID I. PUMA; LUZ PUMA a/k/a Luz M.
                        Puma; THE CITY OF CHICAGO; UNKNOWN HEIRS AND
                        LEGATEES OF DAVID I. PUMA, IF ANY; UNKNOWN HEIRS
                        AND LEGATEES OF LUZ PUMA, IF ANY; and UNKNOWN
                        OWNERS and NON-RECORD CLAIMANTS, Defendants (David
                        Puma and Luz Puma, Defendants-Appellants).



District & No.          First District, First Division
                        Docket No. 1-15-3513


Filed                   September 30, 2016
Rehearing denied        October 26, 2016



Decision Under          Appeal from the Circuit Court of Cook County, No. 12-CH-25029; the
Review                  Hon. Anna M. Loftus, Judge, presiding.



Judgment                Affirmed.



Counsel on              Thomas M. Cassady, of Wirbicki Law Group, LLC, of Chicago, for
Appeal                  appellants.

                        Bardia Fard, of The Law Center, LLC, of Chicago, for appellee.
     Panel                    JUSTICE MIKVA delivered the judgment of the court, with opinion.
                              Presiding Justice Connors and Justice Harris concurred in the
                              judgment and opinion.


                                               OPINION

¶1         In July 2012, plaintiff Deutsche Bank National Trust Co. (Deutsche Bank) filed a
       complaint for foreclosure against, among others, defendants David Puma and Luz Puma (the
       Pumas). In June 2014, the Cook County circuit court granted summary judgment in favor of
       Deutsche Bank and against the Pumas and entered a judgment of foreclosure and sale. The
       court confirmed the sale of the subject property in November 2015. On appeal, the Pumas
       contend that the circuit court improperly awarded possession of the subject property to
       Deutsche Bank in its order confirming the sale of the property when the Pumas were not listed
       in the complaint as persons whose right to possess the subject property was sought to be
       terminated. For the following reasons, we affirm.

¶2                                          BACKGROUND
¶3         On July 6, 2012, Deutsche Bank filed its complaint to foreclose mortgage against the
       Pumas, unknown heirs and legatees, unknown owners and nonrecord claimants, and the City
       of Chicago, pursuant to the Illinois Mortgage Foreclosure Law (Foreclosure Law) (735 ILCS
       5/15-1101 et seq. (West 2012)). In the complaint, Deutsche Bank alleged that, on September
       19, 2006, the Pumas executed a mortgage for the property commonly known as 2551 West
       Farwell Avenue in Chicago, Illinois. Deutsche Bank alleged that it was the owner and legal
       holder of the note, mortgage, and indebtedness by virtue of an assignment of the mortgage.
       Deutsche Bank stated that the Pumas had failed to make payments on the loan since August 1,
       2011, and, at the time the complaint was filed, had an unpaid principal balance of $596,403.77.
¶4         Deutsche Bank made several requests for relief, including a judgment of foreclosure and
       sale; a judgment for attorney fees, costs, and expenses; and an order approving the sale and
       “granting possession.”
¶5         The mortgage and note were both attached to the complaint. The mortgage was signed by
       both of the Pumas, and the note was signed by David Puma only. The assignment of mortgage
       was also attached to the complaint, showing that the subject mortgage and note were assigned
       to Deutsche Bank on August 1, 2009.
¶6         The Pumas filed a pro se answer to Deutsche Bank’s complaint on August 3, 2012. In it,
       the Pumas alleged that they did not “own [sic] anything to this bank” and that “[a]ccording to
       the documents [they] own [sic] to Impac.” This was apparently a reference to IMPAC Funding
       Corporation, the original lender.
¶7         Deutsche Bank filed two motions for summary judgment against the Pumas. The first was
       filed on January 15, 2013, but was later withdrawn without prejudice by an agreed order. The
       second was filed on October 15, 2013. Both motions alleged that Deutsche Bank was entitled
       to summary judgment as a matter of law because the Pumas had failed to raise any issue of
       material fact in their answer. On January 14, 2014, Deutsche Bank filed a motion for judgment
       of foreclosure and sale and a motion to appoint a selling officer.


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¶8         The circuit court granted summary judgment in favor of Deutsche Bank and against the
       Pumas on June 3, 2014, and entered a judgment of foreclosure and sale the same day. In the
       judgment, the court specifically ordered that the mortgagor would have possession of the
       property until the sale was confirmed but that, upon the confirmation of sale, the mortgagor
       “shall surrender possession thereof to such purchaser.”
¶9         Deutsche Bank filed its motion to approve the report of sale and distribution, and for an
       order of possession on June 17, 2015. According to the report, the subject property was sold to
       Deutsche Bank as the highest bidder for $697,680.65, and the total amount due the bank at that
       point was $704,300.29.
¶ 10       The following day, the Pumas, now represented by counsel, filed a motion to reconsider the
       circuit court’s orders of June 3, 2014. In the motion, the Pumas made several arguments,
       including the one that they make on appeal, that the complaint did not plead the “names of
       defendants whose right to possess the mortgaged real estate, after the confirmation of a
       foreclosure sale, is sought to be terminated” as set out in the Foreclosure Law form foreclosure
       complaint (735 ILCS 5/15-1504(a)(3)(T) (West 2012)). On October 5, 2015, the trial court
       issued a written opinion denying the motion to reconsider as untimely and lacking merit.
¶ 11       On November 10, 2015, the circuit court granted Deutsche Bank’s motion of June 17,
       2015, entering an order approving the report of sale and distribution, confirming the sale of the
       property, and ordering possession in favor of the successful bidder, Deutsche Bank.

¶ 12                                          JURISDICTION
¶ 13      The Pumas timely filed their notice of appeal in this matter on December 9, 2015. This
       court has jurisdiction pursuant to Illinois Supreme Court Rules 301 and 303 governing appeals
       from final judgments entered by the circuit court in civil cases. Ill. S. Ct. R. 301 (eff. Feb. 1,
       1994); R. 303 (eff. Jan. 1, 2015).

¶ 14                                            ANALYSIS
¶ 15       The only issue raised in this appeal, which was also raised in the Pumas’ motion to
       reconsider the judgment of foreclosure and summary judgment order, is that the complaint was
       deficient in failing to specifically name the Pumas as persons whose right to possess the
       mortgaged real estate was sought to be terminated.
¶ 16       Section 15-1504(a) of the Foreclosure Law provides a general form for a foreclosure
       complaint. 735 ILCS 5/15-1504(a) (West 2012). A plaintiff is not required to follow the form
       precisely; rather, the section provides that a “foreclosure complaint may be in substantially the
       following form.” (Emphases added.) Id. One of the form allegations, set out in subsection
       15-1504(a)(3)(T), is the “[n]ame or names of defendants whose right to possess the mortgaged
       real estate, after the confirmation of a foreclosure sale, is sought to be terminated and, if not
       elsewhere stated, the facts in support thereof.” 735 ILCS 5/15-1504(a)(3)(T) (West 2012).
¶ 17       The Pumas’ contention on appeal is that the allegations in Deutsche Bank’s complaint were
       insufficient to support an award of possession against them because it did not include the
       “material allegations required” by section 15-1504(a)(3)(T), naming the Pumas as defendants
       “whose right to possess the mortgaged real estate, after the confirmation of a foreclosure sale,
       is sought to be terminated” and, as a result, the circuit court abused its discretion by making
       such an award in its order confirming the sale.


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¶ 18       Deutsche Bank acknowledges that its foreclosure complaint did not include the precise
       language of section 15-1504(a)(3)(T) but argues that its substantial compliance with the form
       pleading set out in section 15-1504(a) and its complaint as a whole were sufficient to allege a
       right to possession against the Pumas. We agree.
¶ 19       In determining the sufficiency of a complaint, “we must liberally construe [the] pleading in
       order to do substantial justice between the parties (735 ILCS 5/2-603(c) (West 2010)), and we
       must consider the exhibits attached to the complaint, as they are considered part of the
       complaint for all purposes.” MB Financial Bank, N.A. v. Allen, 2015 IL App (1st) 143060,
       ¶ 27. We note that the very nature of a foreclosure action contemplates the termination of a
       mortgagor’s interest in the mortgaged property. See Black’s Law Dictionary 658 (7th ed.
       1999) (defining a “foreclosure” as “[a] legal proceeding to terminate a mortgagor’s interest in
       property, instituted by the lender (the mortgagee) either to gain title or to force a sale in order to
       satisfy the unpaid debt secured by the property”); id. (defining “mortgage foreclosure” as “[a]
       foreclosure of the mortgaged property upon the mortgagor’s default”). The Foreclosure Law
       itself provides that “the interest [of the] real estate of *** all persons made a party in such
       foreclosure *** shall be terminated by the judicial sale of the real estate, pursuant to a
       judgment of foreclosure, provided the sale is confirmed in accordance with this Article.”
       (Emphasis added.) 735 ILCS 5/15-1404 (West 2012).
¶ 20       Subsection 15-1504(b) of the Foreclosure Law specifically provides that a complaint for
       foreclosure “need contain only such statements and requests called for by the form set forth in
       subsection (a) *** as may be appropriate for the relief sought.” 735 ILCS 5/15-1504(b) (West
       2012). Here, Deutsche Bank’s complaint identified the Pumas as the mortgagors and owners of
       the real estate. This allegation, alone, was sufficient to identify the Pumas as parties whose
       interest in the property would be terminated by the judicial sale of the property. The allegation
       was further supported by the attachment of the mortgage to the complaint, which showed that
       both of the Pumas signed the mortgage and that the mortgage itself gave the mortgagee the
       right to foreclose and sell the property. Deutsche Bank also specifically requested an order of
       possession as a form of relief in its complaint. The complaint substantially complied with
       section 15-1504(a) and was, therefore, more than sufficient to support a request for an order of
       possession against the Pumas as a form of relief.
¶ 21       The Pumas nonetheless argue that if a plaintiff fails to include the precise language of
       section 15-1504(a)(3)(T) in its complaint, then the circuit court may not enter an award of
       possession. They rely on section 15-1504(c)(12) of the Foreclosure Law, which provides as
       follows:
                “[T]he purchaser at the sale will be entitled to full possession of the mortgaged real
                estate against the parties named in clause (T) of paragraph (3) of subsection (a) of
                Section 15-1504 or elsewhere to the same effect; the omission of any party indicates
                that plaintiff will not seek a possessory order in the order confirming sale unless the
                request is subsequently made under subsection (h) of § 15-1701 or by separate action
                under Article 9 of this Code.” 735 ILCS 5/15-1504(c)(12) (West 2012).
¶ 22       With particular reliance on the phrase “the omission of any party indicates that plaintiff
       will not seek a possessory order in the order confirming the sale,” the Pumas claim that, having
       failed to include the precise language of subsection (a)(3)(T) in its complaint, Deutsche Bank
       was precluded from seeking a possessory order as part of the foreclosure proceeding.
       According to the Pumas, the only “mechanism for [Deutsche Bank] to obtain the possession of

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       the Property after confirmation of the sale was by a separate petition” pursuant to section
       15-1701 of the Foreclosure Law or article 9 of the Code, which is the Forcible Entry and
       Detainer Act (Detainer Act) (see 735 ILCS 5/9-101 et seq. (West 2012)). We disagree.
¶ 23       When looking at the language of a statute, the fundamental rule is to “ascertain and give
       effect to the intent of the legislature.” Hendricks v. Board of Trustees of the Police Pension
       Fund, 2015 IL App (3d) 140858, ¶ 14. “If the statutory language is clear and unambiguous, it
       must be applied as written.” Id.
¶ 24       Just before the phrase the Pumas rely on, subsection (c)(12) states that “the purchaser at the
       sale will be entitled to full possession of the mortgaged real estate against the parties named in
       [subsection (a)(3)(T)] of Section 15-1504 or elsewhere to the same effect.” (Emphasis added.)
       735 ILCS 5/15-1504(c)(12) (West 2012). Although Deutsche Bank did not name the Pumas as
       persons whose right to possession the bank sought to terminate under subsection (a)(3)(T), it
       did name them as mortgagors and the owners of the real estate. This fits into the plain meaning
       of naming parties “elsewhere to the same effect” as required by subsection (c)(12). Therefore,
       the Pumas were not omitted parties within the meaning of that subsection, and their argument
       to the contrary is without merit.
¶ 25       The Pumas’ suggestion that Deutsche Bank was required to bring a separate proceeding
       under section 15-1701 of the Foreclosure Law or under the Detainer Act completely
       misperceives the nature of the protection the Foreclosure Law provides for tenants and other
       occupants who are not mortgagors. Under the Foreclosure Law, “lawful occupants of
       foreclosed properties cannot be removed except by [Detainer Act] proceedings or unless they
       were made a party to foreclosure proceedings.” Fifth Third Mortgage Co. v. Foster, 2013 IL
       App (1st) 121361, ¶ 11. Section 15-1701(h) of the Foreclosure Law provides a mechanism,
       outside of the Detainer Act, in which a purchaser of foreclosed property, up to 90 days after the
       date of the order confirming the sale, can file a supplemental petition for possession against a
       person not personally named as a party to the foreclosure. 735 ILCS 5/15-1701(h) (West
       2012). There is no need for those separate proceedings here, where this entire foreclosure case
       grew out of the Pumas’ mortgage.
¶ 26       Deutsche Bank’s complaint substantially complied with the form in section 15-1504(a),
       and, as the purchaser of the subject property at the judicial sale, Deutsche Bank was statutorily
       entitled to possession of the subject property. Accordingly, the Pumas have failed to show that
       the circuit court erred in awarding possession of the subject property to Deutsche Bank in its
       order confirming the sale.

¶ 27                                       CONCLUSION
¶ 28      For the foregoing reasons, we affirm the judgment of the circuit court.

¶ 29      Affirmed.




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