from jewel lewis at the time of the sale miss lewis was facing the possible loss of her property in a foreclosure action that was pending against her in the circuit court of cook county illinois in the period between the time of the foreclosure sale that was conducted in that proceeding and the scheduled confirmation hearing of the sale mrs lewis sold the property to my client where she currently resides and has that property as subsequent to the sale all parties that were involved in the transaction save greenwich investors who was the third party purchaser out the foreclosure sale reached an agreement that provided for the vacant sure of the foreclosure sale and the dismissal of this proceeding in preparing to appear before you this morning it occurred to me that perhaps more important than telling you what issue i perceive as being presented by this appeal is to tell you what i think is not implicated by this appeal which is namely i don't view this as being a late redemption case rather i think that the facts of this case demonstrate or involve an instance where to purchase that property that does not become accepted until the date that that sale is confirmed that being the case it seems to me that until the sale confirmation occurs that the writes i believe that's exactly correct and that's why i say from the inception that i don't believe that this is a situation where we have a revival of redemption writes the code or the foreclosure act is very clear in what it provides the once the statutory unequitable periods for redemption have expired but those timeframes are not subject to revival and the rationale i think that the general assembly had for enact in that particular provision was to afford the rights to a wonder that basically brought a foreclosure proceeding to a conclusion otherwise you could have a scenario where a borrower comes in and says if i just had a little more time to sell this house i can realize the equity that i have amassed in the property and i think that that really feels nicely if you go back and look at the legislature of his legislative history of the mortgage foreclosure law you see that these somebody had the notion that the law should be enacted so west to create a mechanism by which borrowers could realize to the extent possible the equity that they had amassed in their property during their period of ownership you referred to an agreement that was made rec'd between the bank and the borrower in this phase if the period of redemption had expired and it had in the bank not agreed to this the that we wouldn't be in the situation knows that right that's correct well becky you're the reason for the legislation is it your position that despite the both the expiration of the stance and for redemption period in the closing of the village additional sales bank may nevertheless continue to list in merch of the subject property up until the order confirm in the judicial system i don't believe that the bank has any right to list the property but i think that is conceivable that a borrower can continue to pursue a third party sale and come back to the lender with the notion of i'd like to have you agree to a short sale and when that lead to unpredictability and instability in the foreclosure market i don't believe so your honor for for a number of reasons i think that in application the situation in this particular situation is not going to routinely enviros in fact the only time that this situation is going to arise is where the mortgage foreclosure law has really failed to achieve its purpose specifically the concept as i mentioned was that the foreclosure law is in acted to provide a bar with an opportunity to realize as much equity as possible and this particular instance it obviously failed to permit miss lewis to realize as much equity as possible because there's no dispute that she sold the property that's involved in this dispute from my to my client for an amount that was considerably greater than the amount that was bid by the third party purchaser at the foreclosure sale so she approached the line duran said look i can get you more money than what was realized by the foreclosure sale obviously a bad nurse to the benefit of household in this particular instance it also in new words to the benefit  miss lewis who now no longer faces a large deficiency judgment in her foreclosure proceed if you rely mr larsen upon the times and case to support your position in the that this is ok i don't necessarily rely upon the and opinion i think that the thompson case reached the correct result but i'm not sure that this court or any other court in the state for that matter has really addressed the notion that to dash ten zero nine of the code times and position in your position there is a differing viewpoint and i assume that that is one of the reasons that this court took this case number one that there is a distinction suspect that your decision was motivated in part by an appreciation of the fact that this case has implications as it relates to the current subprime crisis that is confronting the courts in this state and the courts throughout the united states because if you accept the position that i'm a spouse and today essentially what you are going to have happen is you are forwarding borrowers the right to save themselves from the severe consequences of foreclosures and you also are having the ten gentle a fact of affording wonder some relief and perhaps that's not as persuasive an argument as as it might be in light of the fact that some hold the view that the lenders are reaping what they sow but the fact of the matter is is that the application of the position that i am a spouse me leads to the result that borrowers are avoiding potential deficiency judgments as a result of sales that don't realize the full activity that the borrower had amassed in the property and in those i guess her veil in public policy considerations fifteen days six  is more what we do in the public policy although at times we go into that or more would just taken across as true so how do you get around the plain language well i think the answer to that is is that sixteen zero five and the and if you look at it from that perspective the statutory remedy of redemption is something that is out there and has been enacted for the benefit of borrowers in this case what's transpired is not the desired result so this really in the strict strictest sense does not constitute a redemption when it is that these two parties prior to sale confirmation reach a i guess for lack of better words a deal that makes sense for both of them and that as a result of that agreement the parties stipulate between themselves to the dismissal of the foreclosure proceeding obviously that agreement has consequences as it relates to the third party purchaser obviously they've put some money on the table they submitted a bit at sale but the fact of the matter is is that we as we are all aware the foreclosure process is not something that's out there for the in uninitiated the fact of the matter is is that the problems or the risks that are associated with building out a foreclosure sale are all along you can go through and look at it from the perspective of whether or not there is some sort of a judicial or jurisdictional defect whether the sale was properly publish whether or not all necessary parties have been joined whether or not there's tax issues whether or not there's a senior lean claimant the folks that are bidding at foreclosure sales are not uninitiated their own aware of the possibility that a sale might not be confirmed and of the problems that might arise after the fact in the event that they were they successful better in the sales confirm certainly states in this course in the state of long taken the viewpoint that if you build a foreclosure sales buyer beware you get what it is that was out there to be sold religious position is is that if this court condones what i am the spouse namely that a borrower and a lender can reach an agreement and provide for a post sale dismissal of the proceeding there we're going to open the door to a parade of in other words that foreclosure sales are not going to realize full value that the third party purchasers are going to walk away from the sale and that as a result the foreclosure sale prices are going to drop  you that the facts that are presented in this case suggest that the foreclosure sale process really didn't work here if in fact the foreclosure sale that greenwich participated in was really in the spirit of the foreclosure law the sale price would have been much more close to what it is that my client paid for the property to miss lewis subsequent to the sale and as a result of that i would submit that there really isn't a situation here that this creates a parade of horribles and i think that there's certainly as i mentioned before and no reported decision that i'm aware of that suggests that to dash ten o nine doesn't authorize a trial court to grant a joint motion of a foreclosing lender and a borrower to voluntarily dismiss a proceeding host settle and i think that it's fair to assume that in light of the fact that no court in this state has ever reach that decision that the possibility of that type of dismissal is implicit and it's maybe taken into consideration by the folks that are bidding at foreclosure sale in other words they're aware of that going in that it's conceivable that somebody like me is going to come along and up before the illinois supreme court arguing that to dash ten o nine permits the voluntary dismissal of a mortgage foreclosure case post sale and pretty confirmation honour's i think that the goal of the of the general assembly in passing the mortgage foreclosure law was to establish a set of guidelines that govern the relationship between foreclosing lender and borrower and that a third party purchaser only enters into the equation to the extent that their participation in the process somehow benefits one or both of those parties and in this instance i would submit that the benefit just wasn't derived and so it shouldn't come as any surprise to greenwich that we would be asking the trial court to bollen terribly dismissed the proceeding when a better agreement was released reached between the two parties and agreement that was to both parties mutual benefit i have to give the drafters of the mortgage foreclosure law a lot of credit i think back in one thousand eighty seven when they drafted that provision that that section that it would have been difficult to imagine that some years later that lenders would be pooling loans securitizing them and selling them and putting them on the market with investment houses involved and so on and so forth but the fact of the matter is is that the statute for the most part is performing its job it has adapted to the types of cooling and servicing agreements that seem to be replete in today's society i think that in light of the current crisis this going on there is no good reason for this court to step in and tie the hands of lenders and borrowers to prohibit the type of agreement that household and miss l reach i submit that the potential for profits will remain because it's a sad fact that in the vast majority of mortgage foreclosure actions no borrower ever appears that  judgment is entered and the foreclosure sale is conducted and it's confirmed without any participation in other words folks like greenwich are going to be able to reap their profits and still have an adequate incentive to participate this particular case arose as my counsel just stated as did the vast majority of the cases where there was a default judgment and no participation whatsoever by any defendant in this case the sole person at heart the sole entity that participated in this particular case was the bank in the bank alone the bank sets the parameters of the entire foreclosure procedure counsel makes it sound as if the foreclo was just an act it to protect borrowers equity well of course what better way to protect equity and to get as high a price as possible on the sale of any real estate in a foreclosure if it's up to the bank they're going to bid one dollar over i have never seen a bank bid more than a dollar over there that are actually the amount of their that i'm sorry that the bidders would be the dollar over but the bank bids the amount of their debt and nothing more so there's absolutely no equity under those circumstances what's happening in today's market is that the barrier that the banks are bidding but need the that that they're bidding less than that but there was only in the particular foreclosure action a law as it's now and you know stated the only way to protect any borrower is for the better to come in and bid more money to create a surplus which until the real estate market case there was no defense whatsoever to the case property was the mortgage was eighty thousand they the lender submitted an opening bid of forty eight thousand or thirty two thousand less than the amount of its debt ran its came in and did a dollar over or some other figure close to that maybe there were some other bits i don't know but that's what happened it ended up with forty eight zero or one or something like that so in the normal course of procedure the bank comes into court and says we would like to sell confirmed because that's the only way they can get their money the money sit with the selling officer or with the court they have to come in and they have to get the sale confirmed in order to you know to receive the proceeds of the sale since if they're not the high bidder they're not taking the real estate which is another thing that they're in many lenders are happy that a third party bid or comes in because they don't have to then deal with the property anymore it's no longer their headache that's another reason probably why they dropped the price because they like it when the third party you know they take that they don't have to deal with that real estate anymore so they decide based on the amount they're owed the value of neighboring properties what the you know their initial price is going to be if they think there's enough to you know for them to be able to obtain the amount of their debt i have a sale to another person they'll make the the bid higher it's totally in the lender's control people such as greenwich have no rights whatsoever until there is a judicial sale that the fence can cope and come into court they can stop a sale the bank can stop a sale they can say i want to try to figure out how we can get more money out of this need we can work with the defendant all that but once they go to with sale that's when the rights of the third party better come to play so before the sale they have no rights now we get situation after the sale the law is clear and it was contemplated in the change of the law choir to the change in the law which i think was in the eighty's they used to have sales they would put the money into  conclusion i'm sorry then that must be the time of conclusion that's but the way i view the law and the way the other courts of looked at it they say that they hold a sale and then they go to confirmation but the statute says you shall confirm anybody force them to proceed with cause variation they know they wish to a man well because we as a third party better should have certain rights because we did not ask to come into this case until the intervene and in my opinion we acquire the right to request the court to confront at that minimum i think we acquire the right to intervene in the case and ask the court to confirm a judicial sale so you would ask in order confirming the sale illicit finds the justice would not otherwise be done and i don't think that's disputed by mr larson in other words the trucker may refuse to approve a judicial sale only u nder that statute it would seem only if unfairness is shown that is prejudicial to an interested person but i've got a question on the facts here and if you want to touch of time what mr larson explained is a public policy argument in light of the foreclosure crisis real estate prices that were and it appears the household filed a motion to approve the sale and then they withdrew that motion right when one of the mortgage jurors lewis rates and let me try to work out a shorts or well that's what it appears however lewis nor take ever appeared in front of the court this was all what was stated to the court by counsel for the bank know what it was certainly there was a eighty thousand deficiency it appears that lewis takes a look at this instead of one for forty eight thousand i had no idea the ban accept that little money and greenwich reap the benefit of that and now we're going to we've got it at a tape that will come in for close to sixty eight you know and with that is the am interested in your responses to why does the real estate various benefit but this isn't it was well into the asian market it might benefit in tomorrow's market it might be a detriment because there has to be some stability and the idea is to is to obtain from that third party better the highest bid possible while of people go to the sales with the concept that they're going to bid on a piece of real estate and all of a sudden they can have the you know they've been taken away because some other deal was made subsequent to the sale then that's going to deter people from going to the sales by the way in the statement of facts that was given in this case by apple wants he did not state that the case was dismissed there is no evidence and no i was thinking about that there is no evidence that this case was actually dismissed and i don't know how you have an agreement to dismiss when there is only one party and in the court i mean certainly who bought the property with a foreclosure case pending wanted to make sure that her rights were protected she should have appeared in that court before the confirmation before the motion to conform or at any time during the proceeding but she did she just bought the property without ever coming to court and the defendant never came to court and there's no evidence that either of those parties came to court which people would defer from coming to these sales the professionals would be making money i mean i would defer i think it would i think it would have an impact and it wouldn't last to them choose me which is the last of the professionals know it's not to the professionals it's really to the borrowers because after all if we you know again to a bank it's not going to been more than catch and the concept here is to is to is to obtain from a third party better as much of a bit as possible that's the whole idea that there was behind the statute the statute was created to say ok now we we don't have a retention we have a judgment it's time to go to sale to protect the rights of the borrower if they didn't have to do that at all i guess they could have just said well ok now the properties the property of the bank where they would want to do that because and everybody's equity would be wiped out so they said well let's have a procedure where it's possible that we can have some equity even though the borrower doesn't want to come to court let's a lets them be put in default doesn't do anything about it doesn't try to protect themselves we're going to protect them anyways and the way they're going to protect him is to generate some interest from third parties that will come in and buy this real estate and really these are not like your typical real estate deals i mean this is not like we sign a contract we get time to get a loan  we'll look things over we get to inspect the property none of that in this case none of that many of these cases what happens in these cases you got to have cash on the barrelhead at the sale so maybe they give you twenty four hours but that's it you've got have ten percent minimum when you make your bid and the balance of the money the next day and there's even some law firms that want all the money at the sale now they do want bidders but look what to look at the kind of people you're go get when you have those conditions it's not as if everybody is walking around even in this case with fifty thousand sitting in their pocket waiting to you know to buy a piece of real estate that day but even under those circumstances the  this divide in the money is the bank or the professionals well i don't i don't consider i think yes it's people that go out and bid i don't want to call them professional fishery is the right right the beneficiary well otherwise why would we have that procedure why would there be that procedure at all if somebody isn't going to benefit from it i mean granted the people that buy are benefiting but so are the people that always and less because if the bank buys it again they're going to get no equity at all then you have situation where the second mortgage i could show you cases where first i can show you cases i've said in my brief where there's was a one million dollar surplus and one million dollar surplus where person actually walked into judge canards cork i saw it with my own eyes and asked for and received a one million dollars check from the sale of real estate in a foreclosure understand your argument on the public policy issue you're saying that without that stability of knowing that a sale was a sale was a sale you're not going to get clients such as yours to do  case it's clear what the bank did it's clear what happened i think one of the justices said exactly what happened they had no idea that the bank would drop the price to forty eight thousand when they found that out after our client put up the money they said well gee if we can sell for forty eight we can sell for sixty cents same thing happened and boy the same thing happened in in the taps in case really it's the same concept it's like once you have a sale and there's some idea of what the price is or what the property is going to sell for it's a lot easier then come in and say well gee we can pay more but that's not the concept of the law the law has to protect the people that want to make these bids and then and essence protect the borrower even though what doesn't look like it it really is protecting the borrower otherwise it would that procedure would be put into the law a law that just allows the bank to bid that would protect no power there has to be some third party in there otherwise there will never be you know any protection at all and who  short sale because it was a bit you know and although it appears like it's a short sale the bank there they made their own short sale they just said well we don't want the property so we're going to lower the bid in return following up on just as our ms question about the right of the point of control it's not there is no such specific i did have the same issue in a federal case where they tried that and they didn't you know but that's not here today however again i'm not sure this case was ever dismissed even though counsel says it was in his brief he didn't say it was a motion  but again that's contemplating a confirmation shall be entered unless upon motion being filed right no motion before it's correct there was no more does the purchaser at the judicial sale have the right to make that motion do you believe under the statute i believe they have the right to intervene in the case and make that motion otherwise it would be a joke it wouldn't even be i mean that the because i know shall never be confirmed well and must the bank wanted it if the bank so we don't want to confirm of course you think we're buying the right to intervene in the case and make the motion to confirm i think that if this court were to adopt greenwich his view essentially it makes the confirmation process a fait accompli once the gavel comes down there is no longer any consideration as to whether or not the sale well i guess there's a few limited considerations with the notice was proper and so forth but there's no other really consideration that's supposed to be made what about fifteen o e p oh that's  court show in or there's certainly no way of certainly suggests that confirmation is supposed to be something that the court should do unless justice was not otherwise done provision hasta mean something and it seems to me that if you adopt the approach that greenwich argues that really what you are doing is implicitly repealing that  justice not done well i think that justice was not done in this particular situation in that the invalid goal of the mortgage foreclosure law of permitting a bar were to realize as close as possible the equity that she had amassed in this property didn't occur through the conduct of the foreclosure sale the fact of the matter is is that the agreement that mrs lewis reached with household permitted her to more realize the equity that she had amassed to avoid the deficiency judgment and to permit house all to be in a better position that it was and is well i would submit to the court that that type of alignment doesn't occur very darn often as counsel suggests the surpluses are so rampant in cook county that the presiding judge of the chancery division has been forced to set up a special call to administer million dollars for plus awards that would smee would suggest that the mortgage foreclosure was inactive by that somebody isn't broken and that if you adopt the position that i am taking that you are just allowing the lender and the borrower to achieve a mutually beneficial goal if you reject the notion it seems to me that what you are doing in essence is elevating the right of a third party purchaser over those of the lender and the borrower now that's not to say that i don't think that a third party purchaser has a voice in this whole equation but here's what i'm hearing difficulty with your argument is as it relates to fifteen o e p to be sure here the judicial sale yielded a lower price than the they refused to approve a village additional sale only if unfairness is shown that is prejudicial to an interested party so no dispute the private still got more money than the judicial sale in this case but it doesn't the fact that the private sale occurred after the deadline so when we're looking at whether or not this court has to approve the judicial sale which did come before the court before it was withdrawn and that you're actually backing up from that point you don't look and say ok well now after the judicial sale we got more money and therefore that makes improper what occurred at the judicial well again judge i think that one of the things that i would stress is that in my view there like a transpired here was not redemption it doesn't it doesn't look like the type of statutory redemption that's contemplated by sixteen zero three i don't believe it was an equitable redemption is contemplated by sixteen zero five i submit to you judge that the case law couldn't be clearer on the point that redemption once expired can't be revived rather what happened here was that there was an agreement that the parties reached it was mutually beneficial and the plaintiff exercised its rights to voluntarily dismiss as i was saying i don't think that greenwich is without a voice here i think that if you look at the provisions of two dash ten or nine and you apply it to fifteen zero eight which talks about the justice not otherwise done standard as well as the holding in the fleet mortgage versus deal opinion which talks about how it's important in considering the confirmation motion that the trial court view what's happening with respect to all parties that in this particular case the record is devoid of any evidence that greenwich cain before the trial court and submitted any evidence that they were harmed in any way shape or form by the agreement that the open market you know they're willing to come up with their own stories and the people like run it won't come in if they don't know that that is edged in stone that there is some stability as to the rules on the one as i mentioned earlier i think that until this court says that to dash ten or nine doesn't permit a foreclosing lender to dismiss in this particular period that we have to presume that that's being factored in to the analysis that third party purchasers foreclosure sale prices increase if a third party purchaser is aware of the possibility that a lender and a borrower might reach an accord post sale pre con for mation doesn't that create an incentive for that third party purchaser to come in and actually did a little bit more to create the type of disincentive that would  create a disincentive to them submitting a lowball bit i would point out to the court that although it's certainly not of any real presidential consequence that the general assembly and i were recently enacted a provision that authorized the very type of post sale mechanism that allows a bar or lender to voluntarily dismiss a foreclosure sale in perceiving even after that proceeding has been confirmed i would submit that the folks in the eye when general assembly may have the same type of view that i do that there is reasons to believe that authorizing this type of a situation to exist with the protection that's provided by fifteen zero weight and the type of two dash ten or nine analysis that allows the court to weigh the harm is going to provide more than adequate protection for all those reasons your hon