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                                     Appellate Court                              Date: 2016.02.09
                                                                                  11:00:18 -06'00'




                  U.S. Bank Trust, N.A. v. Atchley, 2015 IL App (3d) 150144



Appellate Court         U.S. BANK TRUST, N.A., As Trustee for LSF9 Master Participation
Caption                 Trust, Plaintiff-Appellant, v. BREANNA D. ATCHLEY,
                        UNKNOWN OWNERS, and NONRECORD CLAIMANTS,
                        Defendants-Appellees.



District & No.          Third District
                        Docket No. 3-15-0144



Rule 23 order filed     October 9, 2015
Motion to
publish allowed         November 17, 2015
Opinion filed           November 17, 2015



Decision Under          Appeal from the Circuit Court of Peoria County, No. 14-CH-2; the
Review                  Hon. James A. Mack, Judge, presiding.



Judgment                Vacated in part.
                        Cause remanded with instructions.


Counsel on              Louis J. Manetti, Jr., of Codilis & Associates, P.C., of Burr Ridge, for
Appeal                  appellant.

                        Breanna D. Atchley, of Granite City, appellee pro se.
     Panel                     PRESIDING JUSTICE McDADE delivered the judgment of the
                               court, with opinion.
                               Justices Carter and O’Brien concurred in the judgment and opinion.

                                                 OPINION

¶1         Plaintiff, U.S. Bank Trust, N.A., filed a complaint to foreclose mortgage against defendant,
       Breanna D. Atchley, and was subsequently granted a judgment for foreclosure and sale.
       Following the sale, plaintiff moved to confirm the sale. The court granted plaintiff’s motion in
       part but denied plaintiff’s request for an in personam deficiency judgment. Plaintiff appeals
       that denial. We vacate the trial court’s order in part and remand with instructions.

¶2                                                 FACTS
¶3         On January 2, 2014, plaintiff filed a complaint to foreclose mortgage against defendant.
       The complaint alleged that defendant continued to owe $48,325.73 on the note and mortgage,
       with interest accruing on the note at $7.28 per diem. Among plaintiff’s requests for relief in the
       complaint was “[a] personal judgment for deficiency, if applicable and sought, and only
       against parties who have signed the Note.” Attached to the complaint were the note and
       mortgage, each of which were signed by defendant.
¶4         Defendant did not file an answer to the complaint, nor did she otherwise appear. Plaintiff
       subsequently filed a motion for default judgment and a motion for judgment for foreclosure
       and sale. On April 21, 2014, the trial court granted plaintiff’s motions. The written order stated:
               “If the proceeds of the sale are not sufficient to satisfy those sums due the Plaintiff, the
               Court shall enter a personal deficiency judgment pursuant to 735 ILCS 5/15-1508(e)
               providing that the Court finds that it has personal jurisdiction over the parties
               personally liable on the note and that said liability has not been discharged in
               bankruptcy.”
¶5         The judicial sale occurred on January 5, 2015. The sheriff’s report of sale and
       distribution–filed that same day–indicated that, at that time, plaintiff owed defendant
       $60,462.29. The amount bid at sale was $35,644.62, resulting in a deficiency of $24,817.57.
¶6         The court confirmed the sale on January 26, 2015. In the confirmation of sale, the court
       ordered an in rem deficiency judgment in the amount of $24,817.57. Handwritten on the
       otherwise typed order, next to the in rem deficiency judgment, is the following: “Plaintiff [sic]
       request for an in personam judgment is denied without further documentation.”

¶7                                             ANALYSIS
¶8         On appeal, plaintiff contends that the trial court erred in denying its request for an
       in personam deficiency judgment. Specifically, plaintiff argues that it fulfilled each of the
       criteria required to receive an in personam deficiency judgment under the Illinois Mortgage
       Foreclosure Law (Foreclosure Law) (735 ILCS 5/15-1101 et seq. (West 2012)). We agree.
¶9         At the outset of our analysis, we note that defendant has not filed a brief on appeal. Our
       supreme court has held that the failure of an appellee to file a brief does not mandate pro forma
       reversal, as “[a] considered judgment of the trial court should not be set aside without some


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       consideration of the merits of the appeal.” First Capitol Mortgage Corp. v. Talandis
       Construction Corp., 63 Ill. 2d 128, 131 (1976). Instead:
               “[I]f the record is simple and the claimed errors are such that the court can easily decide
               them without the aid of an appellee’s brief, the court of review should decide the merits
               of the appeal. In other cases if the appellant’s brief demonstrates prima facie reversible
               error and the contentions of the brief find support in the record the judgment of the trial
               court may be reversed.” Id. at 133.
¶ 10       Mortgage foreclosures, judicial sales, and deficiency judgments are all governed by the
       Foreclosure Law. 735 ILCS 5/15-1101 et seq. (West 2012). Section 15-1508(e) of the
       Foreclosure Law, entitled “Deficiency Judgment,” stipulates as follows:
               “In any order confirming a sale pursuant to the judgment of foreclosure, the court shall
               also enter a personal judgment for deficiency against any party (i) if otherwise
               authorized and (ii) to the extent requested in the complaint and proven upon
               presentation of the report of sale in accordance with Section 15-1508. Except as
               otherwise provided in this Article, a judgment may be entered for any balance of
               money that may be found due to the plaintiff, over and above the proceeds of the sale or
               sales, and enforcement may be had for the collection of such balance, the same as when
               the judgment is solely for the payment of money. Such judgment may be entered, or
               enforcement had, only in cases where personal service has been had upon the persons
               personally liable for the mortgage indebtedness, unless they have entered their
               appearance in the foreclosure action.” 735 ILCS 5/15-1508(e) (West 2012).
¶ 11       The word “shall,” as used in the Foreclosure Law, means mandatory, rather than
       permissive. 735 ILCS 5/15-1105(b) (West 2012). Indeed in any statute, the word “shall”
       ordinarily imposes an imperative duty. Lohr v. Havens, 377 Ill. App. 3d 233, 236 (2007).
       Accordingly, a trial court must grant an in personam deficiency judgment in favor of a plaintiff
       under section 15-1508(e) of the Foreclosure Law when the requirements set forth in that
       section are met.
¶ 12       In the present case, plaintiff sought an in personam deficiency judgment against defendant
       in the original complaint. The complaint listed defendant as the person personally liable for
       any deficiency, and plaintiff attached the note and mortgage, both signed by defendant.
       Additionally, defendant was personally served in the case, vesting the trial court with
       in personam jurisdiction over defendant. See J.C. Penney Co. v. West, 114 Ill. App. 3d 644,
       646 (1983). Finally, the deficiency, totaling $24,817.57, was proven upon the presentation of
       the sheriff’s report of sale.
¶ 13       Neither section 15-1508(e) nor section 15-1504(f) (governing requests for deficiency
       judgments in complaints) of the Foreclosure Law expressly considers the effect of bankruptcy
       on the court’s authorization to grant an in personam deficiency judgment. However, we
       recognize that the trial court’s judgment for foreclosure stipulated that such a deficiency
       judgment would be granted only where defendant’s “liability has not been discharged in
       bankruptcy.” Although the trial court’s requirement for “further documentation” was
       ambiguous, we consider the possibility that it related to potential bankruptcy concerns. Even if
       this was the cause for the trial court’s concerns; however, the burden was on defendant to
       present prima facie proof that the debt had been discharged in bankruptcy. See Woerter v.
       David, 311 Ill. App. 595, 599 (1941). Defendant, having never appeared before the trial court,
       provided no evidence that the debt had been discharged in bankruptcy, and a requirement that

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       plaintiff prove the debt not discharged in bankruptcy would constitute an improper shifting of
       the burden of proof.
¶ 14        The Foreclosure Law’s mandate that a trial court grant an in personam deficiency
       judgment requires no more than what plaintiff has provided in the present case. Therefore, the
       trial court’s insistence upon “further documentation” was contrary to the statute. Plaintiff has
       demonstrated prima facie reversible error, and our examination shows that plaintiff’s
       contentions are supported by the record. See First Capitol Mortgage Corp., 63 Ill. 2d at 133.
       Accordingly, we vacate that portion of the trial court’s order awarding an in rem deficiency
       judgment and remand the matter so that the trial court may enter an in personam deficiency
       judgment.

¶ 15                                       CONCLUSION
¶ 16       The judgment of the circuit court of Peoria County is vacated in part and remanded with
       instructions.

¶ 17      Vacated in part.
¶ 18      Cause remanded with instructions.




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