i'm a single mom of two children working full time she actually appeared in answer to city mortgages foreclosure in place there's no shame in having trouble making mortgage payments especially for someone folding t  however we are here for a motion to reconsider raising issues of the misapplication of law appellant received an overall review for a motion to set aside say oh we're the court received no testimony no live testimony below and ruled entirely based on documentary evidence the standard is also de novo but it isn't especially similar to household one in the discovery are there any orders in the record that was provided to this court with regards to discovery whether it was it was granted or denied the request for discovery if you make an issue about discovery was there ever the order indicating that there were a quest for discovery was denied defendant also requested discovery with respect to the lack of notice of sale issue that request was also denied picked the victims though that you were never able you were never allowed to take discovery as that is correct your that is correct and discovery is was crucial under the denial of requests for assistance for h because at that point of the proceedings in the mortgage foreclosure case discovery is close once there's been a sale as you as as your other knows once there's been a sale and there's a motion to confirm the sale discovery typical discovery in a foreclosure case has as closed end the only way that the defendant who bears the burden of proof of showing the only way to defend you can show that in a situation like this that he him pepple cation had not been evaluated by the plaintiff bank at that point in time is to have some access to the internal records of the bank or the weiss of the defendant is put in the position world in several ways from from the facts of the present case first hear it in bermuda as there was conflicting evidence the  executed documents city filed affidavits saying they had not been that they were in complete documents there were letters from city identifying missing documentation here the the  and the none of the letters that i think it's very important that none of the none of the three letters that city center in this case identified any missing documentation whatsoever and that it was under review and that it would take thirty days to review it it did not identify any missing documents i commit documentation whatsoever in fact the city in this case provided no affidavit and no evidence whatsoever to indicate that there was  application here was actually in reference to an f h a hamp that is correct ok that is correct this was an f h a hamp that in that respect this this case is also a little bit different from commuters on the application requirements for freddie mac amp which is what bermuda start with are a little bit more stringent there's an affidavit that's required that's not required here and  i think there were three separate applications in the first one the record indicates the record indicates that the borrower in a phone call with citi after submitting the first one was us who did not attach any proof that the documents the application documents were actually sent well i think that a complete the application itself was complete i believe the bank's argument is that certain documents required in support of the application were not all attached to the in its original form and she explained that in her affidavit once she submitted the applications she disassembled and refile the original financial documents that she had submitted and didn't they would be in the bank's files which we were prevented from discovery and she listed the dollar of the documents each document interact with davis that she submitted the end once again i think it's crucial that city's june twenty seventh letter reads as though her application for f h a hamp was complete it does not identify any missing documents and city provide no evidence whatsoever that any documents were missing do not all the letters contain a final paragraph indicating dad you would predict when the one hundred twenty seventh is being reviewed but however the for closer proceedings will still continue on they do there's no doubt about it there's proceeds to material violation of ham so that if the letter says you're under review it's going to take thirty days to review your application then the sale cannot proceed at that point maybe other evaluation prior to sa rulings in this case but it appears to this same reason why the supreme court saw fit to promulgate rule one fourteen we have the same reason why the borrower's affidavit in this case that she did not receive notice of sale or or that she was not  was pending at the time of sale why those those claims and the testimony of the documents in support of them should have been taken a little bit just a little bit more seriously by the by the circuit court  more i'd like to begin by addressing the standard of review that was discussed earlier and has been thoroughly briefed there's a there were a supreme court case that's been referenced already this morning household bank f s b the lewis and that case is controlling in terms of the standard of review hearing that case indicates that the standard of review is abuse of discretion in the case of corbett a court's decision to c judicial sale under the statute for into the illinois mortgage foreclosure law will not be disturbed absent of use of that discretion i hope the that case remains good law has not been overturned and specifically addresses there was testimony taken at the trial court level in order to trigger that review but i would urge the court that the cases that were referenced by the appellant their brief are not political because they do not court includes a case called citi corp savings of illinois the first chicago trust two sixty nine illinois pelt three thirty two ninety three in that decision the  court references that at the trial stage one of the parties was quote in the courtroom and made a request in the court and two to me that speaks of a case where there's testimony it's not and  reconsider the court's january twelfth two thousand and twelve order approving report so distribution confirming sale order possession it is ordered cole and the motion is that i this court was satisfied with an order of the circuit court in that case that was not a lengthy reasoned order and i think that that the lack of specificity or details in the court's order makes the lack of hearing or a report or a complete record of this case all the more important now before i get to the preponderance is wasn't the issue really whether or not an application was even completed that that was the issue when for me well the record speaks to what the term applied for means under the statute and that was the the issue that the court addressed there and the court states in bermudez that applied for me must submit documentation required verify the income and i think the record in this case indicates that that's the best we can do with the limited records that that was not done the first application is a fax cover sheet but as a checklist  that that's all well and good but we don't know that record it's contradicted based on then briefing that was submitted at the trial court level but indicates that the power hadn't established and had submitted a completed application had this program rather it's an indication that she had a b y but that there was a problem in i think it's an indication there was a problem with the income i don't know that it necessarily suggests that information was submitted the affidavits the borrower submitted instead of showing the documents and the completed application purportedly completed application only attach a effect simile cover sheet that doesn't indicate what the information was and a u p s confirmation that's the record of pages six seventy eight and six eighty that don't give you any indication looking at it ok for the record since she provides the income and then she gets a third letter the following letter after  inference without without a transcript or without a complete affidavit instead of from the documents that are provided to this court i don't know that i would necessarily be comfortable making that that leap without seeing the documents as it ma been the f h a camp standards are different than those city versus this marriage doesn't like because the the standards may be different but the statute that we're dealing with here is identical it's the it's the cases and deals with whether or not there's been a sale of material violation of the political guidelines well let's look at the statute cossar indicates that they get an opportunity to have a hearing here therefore they were able to provide by preponderance of the evidence  to the statute whether or not the motion should have been granted well i think counsel you know they they're asking for discovery or evidentiary hearing and that's within the discretion of the court who was you know intimately familiar with this case and decided based on its sound judgment and review that there was no additional evidence rehearing needed i think that's well established in there are proceedings to record so the there are other numerous cases that encourage judges to include in their workers a statement of why they're doing what they're doing so that we can review it at this level and know whether the the first is that that the language of the order in the be you know lack of explanation the order is not is not fatal and was of help us find it in bermuda as and i think the other point is worth noting it's been brief thoroughly but hasn't been discussed here is that if the burden is on the appellant to provide a record and the appellate was well aware that there was no court order in the work and if there was no transcript of the hearing which is fine but there's still an opportunity parsed out in bermuda is that that all the material was not just a letter it was not partial it was a complete application was submitted and in this case is clear from the record of the trial court wasn't satisfied that a complete application to the flight for language of the statute was trigger and that's how these two those two cases are different from one another d in compliance with the supreme court will three twenty one miss lewis provided the entire common law record on appeal and supplement it when we discovered that there were some orders of papers missing  much more difficult standard for you to convince us to act so in light of that yeah me yet the information regarding the court's re the and all of that evidence is contained in the come on the record that's now before this court this court has before it the entire record containing all the operative facts  there was no trial there was no hearing everything was done according by the documents well just with regard to the documents along than what would what specifically in the documents stay was is that you've met your burden that we complete application was submitted as i indicated earlier that the borrower submitted the file to detail that if it's attached to which were application documents that she submitted identification of specific documents that you submitted that were not attached to the affidavits the facts come from ation t for the third application she submitted the letters the three letters that that she had three applications and three letters of response from citi none of those letters  identify any missing documentation whatsoever the first two over this in the third letter say correct me if i'm wrong doesn't the third letter say that you may be asking for additional information it does but it doesn't it doesn't say what it doesn't say is that the information or documents you submitted very incomplete i think that's a critical distinction when it comes to amp applications a borrower can submit a complete amplification that includes all  the documents that are required by the standard ham publication and then if there's a special quite special situation the the bank service or maybe request additional information or documents but that doesn't mean that the original application the application of hemp application the third thirty of application that was submitted was on the date of sale we would like to know whether or not a decision had been a made on that application whether it was a rejection or a approval we would like to know what point in that review it was obviously if there had been a decision on the application a final decision would like to know what the date is relative to the sale date that would help us determine whether or not the application was still pending the time of sale and i think that for to find out those facts we need the some of the internal documents of citi so whatever documents they use to review and analyze f h a hamp applications we need to see those internal documents i don't know whether or not a deposition will be necessary it could be it depends on the documents  did citibank ever submit any documentation indicating that her request your client's request was denied and conjunction with the letter on the twenty seventh of i believe it was june the answer is no there was no she she never received any response city never provided any evidence of a decision on the application that's referenced in the june twenty seventh letter or is it just went into a black hole discovery rulings are certainly within the broad discretion of the circuit court below but it in the circumstances of this case i don't think that it was reasonable i don't think it was reasonable for the court to deny the borrower the opportunity for some limited reasonable discovery in the situation where she had the burden of proof under the ham statute to prove by preponderance of evidence that she she requested assistance  property was sold the material violation of ham she had that burden of proof and yet when she requested for discovery she didn't get it and the only way she could possibly have proved proven by a preponderance it is that  she is if she had been given the opportunity to determine what the status of the application and evaluation at city internally was on the day of sale she didn't get that opportunity so i don't think it was a reasonable it was reasonable for specifically reference a f h a hamp application as having been submitted it references i think it's request for foreclosure prevention your request for foreclosure prevention assistance or prevention program but in the circumstances it is crystal clear that it what it it that it refers to the thirty amp application that she attest she submitted that she only ever submitted themselves with be the app that handwritten applications them selves with the financial statements assets and budget and the signed many of the signed disclosures and those are in the record they are attached to her  or she submitted were denied we have the letters from city when she submitted the third application she submitted two additional pieces of income verification that she did not submit with the first two applications she submitted this those documents or at least one of them are attached to one or both or rather david's on it made count for the difference in city's response to her third application where instead of denying her for lack of income they said that documentation for the remainder of our arguments will stand on our briefs and i think the court very much for its for its time