                                          2017 IL App (1st) 162086
                                                No. 1-16-2086
                                                                                          Third Division
                                                                                     September 27, 2017

     ______________________________________________________________________________

                                                   IN THE
                                    APPELLATE COURT OF ILLINOIS
                                              FIRST DISTRICT
     ______________________________________________________________________________

     URBAN PARTNERSHIP BANK,                            )              Appeal from the
     Plaintiff-Appellee,                                )              Circuit Court of
                                                        )              Cook County.
     v.                                                 )
                                                        )              No. 15 CH 8996
     CHICAGO TITLE LAND TRUST                           )
     COMPANY,                                           )              Honorable
     Defendant,                                         )              Anna M. Loftus,
                                                        )              Judge, presiding.
     (Marcella Wuertenberger                            )
      Intervening Defendant-Appellant).                 )

     ______________________________________________________________________________

                    PRESIDING JUSTICE COBBS delivered the judgment of the court, with
                 opinion.
                    Justices Howse and Lavin concurred in the judgment and opinion.

                                                  OPINION



¶1           Defendant, Marcella Wuertenberger, appeals the denial of her motion for leave to

          intervene in a mortgage foreclosure proceeding and to vacate orders that the trial court

          entered prior to confirming the judicial sale of the subject property. Defendant contends that

          the trial court’s denial of her motion to intervene was in error because (1) her interests, as a
     No. 1-16-2086

        beneficiary of the trust, were not fully protected by the trustee, Chicago Title Land and Trust

        Company (CTLT), and (2) the trial court lacked subject matter jurisdiction.

¶2                                           BACKGROUND

¶3         The following recitation of the facts is taken from the pleadings and exhibits in the record

        and, to the extent supported by the record, the party’s briefs. On August 26, 1993, appellant’s

        parents, Martha and Wallace Burns, created a land trust agreement for property located at

        4806 St. Charles Road, Bellwood, Illinois 60104. In 2008, following Wallace’s death,

        Martha, as sole beneficiary of the trust, amended the agreement to provide for the transferral

        of her rights upon her death to Paul J. Sidney, Steven D. Sidney, Marcella D. Wuertenberger,

        and Angela S. Brandon. Martha subsequently died on February 27, 2012.

¶4         The property secured a mortgage note held by plaintiff, Urban Partnership Bank (UPB).

        According to the complaint, the Burnses defaulted on the mortgage on or around November

        30, 2014. Subsequently, on June 8, 2015, UPB filed a complaint to foreclose the mortgage on

        the property, naming as defendants CTLT, as trustee; Martha and Wallace Burns; unknown

        owners; and non-record claimants. Notice of the foreclosure proceeding was posted in the

        Chicago Daily Law Bulletin on June 24, and July 1 and 8, 2015. On March 10, 2016, plaintiff

        filed a motion, seeking a default judgment against the defendants. In support of its motion,

        plaintiff alleged that more than 30 days had passed since defendants were served and that the

        defendants had failed to appear, answer, or otherwise respond to the complaint. On that same

        day, plaintiff filed motions, seeking dismissal of Martha and Wallace Burns as defendants, a

        judgment of foreclosure, and an order appointing a judicial sales officer. On April 20, 2016,

        the court granted plaintiff’s motions.




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¶5         Notice of the judicial sale of the property was posted on April 26, 2016; the property was

        sold on May 26, 2016; and the court confirmed the sale on June 21, 2016. On June 23, 2016,

        appellant filed an “Emergency Motion for Leave to Intervene and Stay Possession and

        Judicial Sale.” In her motion, appellant argued that CTLT could not fully protect her interests

        and she would be irreparably harmed and prejudiced if her motion was not granted. On that

        same day, appellant also filed a “Motion to Vacate the April 20, 2016 Orders and Stay or

        Strike the June 21, 2016 Orders.” In her motion, appellant argued that, due to plaintiff’s

        failure to name her in the complaint as a necessary party, she was unable to defend her

        interests. Further, appellant argued that because CTLT trustee could not defend the

        beneficiaries in the foreclosure proceedings, she would be prejudiced if the property was

        foreclosed without her participation in the proceedings.

¶6         The court denied appellant’s motion for leave to intervene and to stay possession and

        judicial sale. Additionally, the court denied, as moot, appellant’s motion to vacate the April

        20, 2016 default foreclosure judgment order and the June 21, 2016 sale confirmation order.

        Appellant appeals.

¶7                                             ANALYSIS

¶8         Appellant raises two major contentions on appeal. She first contends that the trial court

        erred in denying her petition for intervention. For her second contention, she argues that the

        court lacked subject matter jurisdiction to enter any orders in this case. Thus, she maintains,

        the orders must be vacated. Because any order entered by a court that lacks subject matter

        jurisdiction is void (LVNV Funding, LLC v. Trice, 2015 IL 116129, ¶ 27 (citing In re

        Marriage of Mitchell, 181 Ill. 2d 169, 174 (1998)), we address appellant’s jurisdictional

        challenge before proceeding further.


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¶9                                  SUBJECT MATTER JURISDICTION

¶ 10         Here on appeal, appellant contends that the court should have vacated its April 20, 2016,

          order because “it lacked subject matter jurisdiction over deceased defendants, Martha Burns

          and Wallace Burns.” Citing ABN AMRO Mortgage Group, Inc. v. McGahan, 237 Ill. 2d 526

          (2010), she posits that a suit against a dead person is a nullity and deprives the court of

          jurisdiction. Because neither the decedents, nor the personal representatives of the decedents’

          estates, were named in the underlying foreclosure proceeding, the trial court did not have

          subject matter jurisdiction. As such, appellant argues, the trial court’s orders are void.

¶ 11         Simply stated, appellant’s argument is flawed. First, the underlying foreclosure

          proceeding was neither against the decedents nor the decedents' estates, but was instead

          against the named trustees, CTLT, unknown owners, and record claimants. 1 Thus, appellant’s

          reliance on ABN AMRO is unavailing. Moreover, the personal representatives of the

          decedents’ estates, if any, are not parties to this appeal. Any challenge to the court’s

          jurisdiction for a lack of notice to the personal representatives rests with the personal

          representatives and not with appellant.

¶ 12         Further, the failure to name even an interested party in litigation would not defeat the

          court’s subject matter jurisdiction. See In re M.W., 232 Ill. 2d 408 (2009). Subject matter

          jurisdiction refers to the court’s power to hear and to determine cases of the general class to

          which the proceeding in question belongs. Id. at 415. Subject matter jurisdiction exists as a

          matter of law if the matter brought before the court by the plaintiff or the petitioner is

          justiciable. Id. at 424. Generally, a justiciable matter is a controversy appropriate for review

                       1
                       Martha and Wallace Burns were originally named as defendants in the underlying
          mortgage foreclosure complaint. However, after attempting service on them, Urban Partnership Bank,


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          by the court, in that it is definite and concrete, as opposed to hypothetical or moot, touching

          upon the legal relationship of parties having adverse legal interests. Id. With the exception of

          the circuit court’s power to review administrative actions, which is conferred by statute, a

          circuit court’s subject matter jurisdiction is conferred entirely by our constitution. Id. (citing

          Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d 325, 334 (2002)). For

          purposes of subject matter jurisdiction, courts have inherent power to hear and determine

          foreclosure cases. Nationstar Mortgage, LLC v. Canale, 2014 IL App (2d) 130676, ¶ 12.

          Thus, subject matter jurisdiction exists in this case as a matter of law and the trial court's

          orders, therefore, are not void.

¶ 13         Having determined that the trial court had subject matter jurisdiction, we turn our

          attention to the appellant’s remaining contention on appeal regarding the trial court’s

          disposition of her petition for intervention.

¶ 14                                         STANDARD OF REVIEW

¶ 15         Appellant identifies provisions on intervention in both the Illinois Mortgage Foreclosure

          Law (Foreclosure Law) (735 ILCS 5/15-1501) (West 2014) and the Code of Civil Procedure

          (Code) (735 ILCS 5/2-408) (West 2014), as the statutes involved in this appeal. Citing

          Argonaut Insurance Co. v. Safway Steel Products, Inc., 355 Ill. App. 3d 1, 7 (2004),

          appellant acknowledges that a decision to either grant or deny a petition to intervene rests

          within the sound discretion of the trial court. She additionally acknowledges that absent an

          abuse of that discretion, the court’s decision will not be reversed. Waters v. City of Chicago,

          95 Ill. App. 3d 919, 923 (1981). We note additionally that a trial court abuses its discretion

          when its ruling is arbitrary, fanciful, or unreasonable (Peeples v. Village of Johnsburg, 403


          as plaintiff-mortgagor, filed Suggestions of Death for both individuals. On April 20, 2016, both

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          Ill. App. 3d, 333, 339 (2010)), or where its ruling rests on an error of law (CitiMortgage, Inc.

          v. Johnson 2013 IL App (2d) 120719, ¶ 18). That said, appellant nevertheless maintains,

          without citation to authority, that because there was no evidentiary hearing on her motion to

          intervene, the issues presented on appeal merit our review de novo.

¶ 16          We disagree. We reserve de novo review for questions of law. See Reserve at Woodstock,

          LLC v. City of Woodstock, 2011 IL App (2d) 100676. No question of law is presented in this

          appeal.

¶ 17          Section 2-408 of the Code sets forth the procedures for intervention generally. 735 ILCS

          5/2-408 (West 2014). Intervention in foreclosure proceedings is specifically provided for in

          section 15-1501 of the Act (735 ILCS 5/15-1501(d) (West 2014)). Similar to provisions

          under the Act, the Code provides for intervention as of right (735 ILCS 5/2-408(a) (West

          2014)), as well as permissive, or in the discretion of the court. (735 ILCS 5/2-408(b) (West

          2014). See 735 ILCS 5/15-1501(e)(1) (West 2014) (intervention as of right); 735 ILCS 5/15-

          1501(e)(2) (West 2014) (intervention in the court’s discretion). Under section 2-408(f) of the

          Code, an intervenor, whether discretionary or as of right, is bound by orders or judgments

          entered by the court. 735 ILCS 5/2-408(f) (West 2014). Similarly, under the Act, an

          individual granted intervention prior to entry of an order confirming the sale is subject to all

          orders and judgments entered in the foreclosure. 735 ILCS 5/15-1501(e)(3) (West 2014). In

          In re Application of the County Collector of DuPage for Judgment for Delinquent Taxes for

          the Year 1992, 181 Ill. 2d 237, 247-48 (1998), our supreme court held that the court’s

          decision regarding an individual’s right to intervene under the Code, whether as of right or

          permissively, is a matter of judicial discretion. Given the similarities between the provisions


          individuals were dismissed from the case.

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          for intervention as set forth generally in the Code and those specifically under the

          Foreclosure Law, for purposes of consistency, we believe that the standard of review under

          both is abuse of discretion.

¶ 18          Appellant presents three largely undeveloped arguments in support of her challenge to the

          trial court's denial of her motion to intervene. We review each in turn. The following general

          principles of law inform our analysis and disposition.

¶ 19          As a general rule, all persons interested in the subject matter of a suit should be made

          parties thereto. Hickey v. Union National Bank & Trust Co. of Joliet, 190 Ill. App. 3d 186,

          189 (1989). There is, however, an exception in the case of the foreclosure of a mortgage or

          trust deed. Id. “The rule enunciated in precedential case law does not confer joinder to land

          trust beneficiaries.” Id. In an Illinois land trust, both legal and equitable title to real property

          rests in the trustee, while the interest of the beneficiary of the trust is personal property.

          LaSalle Bank, N.I. v. First American Bank, 316 Ill. App. 3d 515, 524 (2000) (citing Parkway

          Bank & Trust Co. v. Gleich, 213 Ill. App. 3d 444, 448-49 (1991), and First National Bank of

          Barrington, Trust No. 11-1317 v. Oldenburg, 101 Ill. App. 3d 283, 286-87 (1981)). The

          trustee is the absolute owner of the real estate. Id.

¶ 20          “The beneficiary of a land trust is not a necessary party in a foreclosure proceeding.”

          Hickey, 190 Ill. App. 3d at 189; see also 735 ILCS 5/15-1501(b)(3) (West 2014). The

          beneficiary in a land trust may be a proper party, however, if his rights and liabilities

          respecting management and control, use, or possession of the property are involved and the

          trustee cannot fully protect his interests. Hickey, 189 Ill. App. 3d at 189 (citing Marathon

          Finance Co. v. Pioneer Bank & Trust Co., 168 Ill. App. 3d 148, 152-53 (1988)). In the

          context of a mortgage foreclosure proceeding, the Foreclosure Law is controlling. See 735


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          ILCS 5/15-1501 (West 2014). The Foreclosure Law takes precedence over any inconsistent

          statutory provisions. Mortgage Electronic Registration Systems, Inc. v. Barnes, 406 Ill. App.

          3d 1, 4-5 (2010).

¶ 21         Under the Foreclosure Law, “[a]ny person who has or claims an interest in real estate

          which is the subject of a foreclosure *** shall have an unconditional right to appear and

          become a party in such foreclosure.” 735 ILCS 5/15-1501(d) (West 2014). Section 15-

          1501(e) of the Foreclosure Law sets forth the times during the foreclosure proceeding that

          intervention may be permitted. 735 ILCS 5/15-1501(e) (West 2014). A person seeking to

          intervene as of right may appear and become a party at any time prior to the entry of

          judgment of foreclosure. 735 ILCS 5/15-1501(e)(1) (West 2014). After the right to intervene

          has expired, but prior to the sale in accordance with the judgment, the court may, in its

          discretion, permit a person to intervene on such terms as the court deems just. See 735 ILCS

          5/15-1501(e)(2) (West 2014). The Foreclosure Law also permits intervention after the sale of

          the mortgaged real estate, but prior to the entry of an order confirming the sale. See 735

          ILCS 5/15-1501(e)(3) (West 2014). However, such intervention is limited to claiming an

          interest in the proceeds of the sale. Further, at this stage of the proceeding, the intervening

          party is subject to all orders and judgments entered in the foreclosure. Id.

¶ 22         Appellant first argues that intervention was necessary because the trustee appellees did

          not protect her interest in the land trust. She notes, without dispute, that under the terms of

          the trust agreement the trustee appellee was not required to pay mortgage on the property.

          Appellant argues that without such a duty, however, the appellee as trustees could not have

          adequately protected her interests. Appellee responds that appellant’s motion to intervene

          was untimely because a nonparty is only permitted to intervene up until the time that an order


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          confirming a judicial sale is entered. Appellant replies that had the court first considered her

          motion to vacate the underlying foreclosure judgment, her motion to intervene would have

          been properly considered and deemed timely.

¶ 23         Appellant’s position appears to be grounded in the erroneous notion that the trial court

          lacked subject matter jurisdiction to enter any orders in the foreclosure proceedings. As we

          have already addressed this issue, we need not consider it further. We pause to note however

          that a party seeking to vacate a default judgment of foreclosure after the judicial sale of the

          subject property, must also seek to set aside the judicial sale. Wells Fargo Bank, N.A. v.

          McCluskey, 2013 IL 115469, ¶ 18. The trial court’s discretion to vacate a default judgment of

          foreclosure is governed by the mandatory provisions of section 15-1508(b). DLJ Mortgage

          Capital, Inc. v. Frederick, 2014 IL App. (1st) 123176, ¶ 15. Under the Foreclosure Law,

          “after a judicial sale and a motion to confirm the sale has been filed, the court’s discretion to

          vacate the sale is governed by the mandatory provisions of section 15-1508(b).” McCluskey,

          2013 IL 115649, ¶ 18. Pursuant to section 15-1508(b), upon motion and notice, the court

          shall confirm the sale unless it finds that (1) proper notice was not given, (2) terms of the sale

          were unconscionable, (3) the sale was conducted fraudulently, or (4) justice was otherwise

          not done. Id.

¶ 24         In her June 23, 2016, motion to vacate the court’s order of foreclosure, appellant asserted

          that the trustee could not protect her interests and that, therefore, she would be irreparably

          harmed. Additionally, she asserted that no other beneficiaries to the trust had been named in

          the foreclosure suit and that she was a defendant in the lawsuit. Appellant does not allege any

          of the bases set forth in section 15-1508(b) of the Foreclosure Law in support of her motion

          to vacate. In fact, appellant did not reference the Foreclosure Law with respect to this


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          argument at all, but with seeming reliance on section 2-408(a)(2) of the Code, offered as a

          general proposition that appellee’s representation of her interest was inadequate. Under either

          the Code or the Foreclosure Law, appellant presented the court with no basis upon which to

          vacate either its judgment order or the order confirming the sale.

¶ 25          Further, as we have previously noted, appellant’s motion to intervene was not filed until

          after the court’s order confirming the sale. The effect of that order was the termination of the

          foreclosure proceedings. See id. ¶ 24. As such, there was no proceeding into which to

          intervene.

¶ 26          For her second argument, appellant urges that denial of her motion to intervene permitted

          “appellee” to sell the property to itself at less than fair market value. 2 Again, appellant filed

          her motion to intervene on June 23, 2016. The court entered its order confirming the sale,

          two days earlier, on June 21, 2016. It was appellant’s conduct, and not the trial court, that

          precluded intervention. The Act expressly provides that any person who has or claims an

          interest in real estate shall have an unconditional right to appear, as of right, if prior to

          judgment; in the court’s discretion, if after judgment; or later, if prior to an order confirming

          the sale. 735 ILCS 5/15-1501(d), (e)(1) to (3) (West 2014). Moreover, appellant misperceives

          the scope of participation permitted an intervenor under the Act. Even had she timely filed

          her motion to intervene, there is nothing in the record to suggest that she either could have or

          would have been permitted to alter the course of the foreclosure proceedings. See 735 ILCS

          5/15-1505(e)(2), (3) (West 2014). In any case, even if we could find the argument valid, not

          only is it speculative, but in the face of the Act, it is also irrelevant.


              2
                 Although appellant identifies “appellee” as the purchasers of the property, the record reveals
          that the plaintiff, UBP, was the sole bidder at the sale and purchaser of the property.


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       No. 1-16-2086

¶ 27         For her third and final argument, appellant asserts that the trial court’s denial of the

          motion to intervene leaves as her remaining recourse the filing of a separate law suit against

          the trustee. Although we express no opinion on the viability of appellant's separate law suit,

          we acknowledge that in the interest of judicial economy, and when appropriate, intervention

          is favored. See PJS Enterprises v. Klincar, 125 Ill. App. 3d 643, 648 (1984). However, that

          separate litigation might occur as a result of a party's failed motion to intervene is not reason

          to permit it, especially here, where to do so would contravene the Foreclosure Law. In our

          view, the Foreclosure Law strikes the proper balance between the interest in judicial

          economy and finality of judgments in the context of mortgage foreclosures.

¶ 28         Here, the record reveals that notice of the foreclosure proceedings was given to appellees,

          the unknown owners, and non-record claimants by publication in the Chicago Daily Law

          Bulletin on June 24 and July 1, and 8, 2015. Although appellant was not given notice, nor

          was she entitled to it, she was aware of the foreclosure litigation. Yet, upon being made

          aware of the foreclosure action, and further, being made aware of appellee's intent not to

          defend against it, she filed no motion to intervene at that time. Notice of the judicial sale was

          subsequently posted on April 20, 2016. Yet appellant filed no notice to intervene at that time.

          Instead, appellant waited to file her motion to intervene two days after confirmation of the

          judicial sale. By then, the trustee was divested of any property rights. See 735 ILCS 5/15-

          1404 (West 2014); see also McCluskey, 2013 IL 115469, ¶ 24 (once judgment of foreclosure

          is entered, the procedural framework culminates in the confirmation of sale and possession of

          the property).

¶ 29                                            CONCLUSION




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¶ 30         Because the trial court had subject matter jurisdiction over the proceedings, the court’s

          foreclosure judgment order was not void. Additionally, appellant, having filed her motion to

          intervene after the court’s entry of the order confirming the sale, failed to comply with the

          governing provisions under the Foreclosure Law. Thus, we conclude that the trial court did

          not abuse its discretion in denying the motion to intervene. For all of the foregoing reasons,

          we affirm the trial court.

¶ 31         Affirmed.




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