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UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF ILLINOIS 

JEFF FOSTER, 

Plaintiff/Counter-Defendant, 

v. 

PNC BANK, N.A., 

Defendant/Counter-Plaintiff. 

Case No: 12-cv-3130 

Honorable Mary M. Rowland 

MOTION TO STAY JUDICIAL SALE 

Now comes Jeff Foster (“Foster”), Plaintiff and Counter-Defendant in the 

above-captioned litigation, and moving for an order of this Court staying the judicial 

sale of Foster’s real estate located at 6201 N. Kilpatrick Avenue, Chicago, Illinois, 

60646 (the “Property”). 

PNC Bank, N.A. (“PNC”) the Defendant and Counter-Plaintiff, has issued a 

notice (attached hereto as Exhibit A), indicating that the sale of the Property will be 

conducted by Intercounty Judicial Sales Corp. at noon on June 7, 2022. 

The sale should be stayed, in the interests of judicial economy, and because 

conducting the sale on June 7, 2022, would cause significant prejudice to Foster. 

The sale should be stayed until, at minimum, the deadline to seek a writ of 

certiorari has passed as with reference to the Seventh Circuit’s eventual disposition 

of Foster’s appeal of this Court’s earlier order granting PNC’s motion for summary 

judgment. For want of a date certain, however, this Court should enter an order 

staying the judicial sale of Foster’s home for no less than 120 days. 

In support of this request, Foster states as follows. 

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1. Judicial economy and the possibility of hardship to Foster warrant a stay 

of the judicial sale. 

The above-captioned litigation concerns multiple claims and counterclaims, 

regarding both a property located at 56 Fiesta Way, Fort Lauderdale, Florida and 

the Property. Foster commenced this litigation to vindicate his rights subsequent to 

PNC’s mishandling of his loans on these properties. In response, PNC brought 

various affirmative defenses and counterclaims against Foster claiming breaches of 

the notes and seeking the foreclosure of the Property. 

PNC moved for summary judgment, arguing that no genuine issue of material 

fact existed as to any of Foster’s claims or its counterclaims, and on March 25, 2020, 

this Court granted PNC’s motion for summary judgment and entering a partial 

final judgment as to the Florida property. Mr. Foster filed a notice of appeal of the 

judgment related to the Florida Property on April 22, 2020. 

For the Property, the Court’s order directed PNC to submit a judgment of 

foreclosure for the Illinois property. On May 19, 2020, PNC filed a “Motion to 

Appoint Selling Officer,” which was ultimately granted with an entry of a judgment 

of foreclosure. Now, nearly two years later and while an appeal related to the 

partial final judgment entered regarding the Florida property has been fully briefed 

and argued, PNC seeks to proceed with the sale of the Property. 

This Court has the inherent authority to stay proceedings, to control the 

disposition of cases before it. “In considering a motion for stay, courts consider both 

the interests of judicial economy and the potential prejudice or hardship to the 

parties.” Smith v. Merck & Co., Inc., 2006 WL 3842190 (S.D.Ill 2006), citing Bd. Of 

Trs. Of the Teachers’ Ret. Sys. Of the State of Ill. v. WorldCom, Inc., 244 F.Supp.2d 

900, 905-06 (N.D.Ill. 2002). 

With reference to judicial economy, Foster notes that this case has taken two 

different tracks with reference to the Florida properties and the Illinois property. 

This Court’s entry of a partial final judgment with reference to the Florida property 

has been appealed to the Seventh Circuit Court of Appeals, and an opinion and 

order from that Court are expected imminently: Briefing has been completed, and 

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oral argument was conducted on December 1, 2021. It would not foster judicial 

economy to allow the judicial sale of the Property so close to a likely opinion from 

the Seventh Circuit, especially since that opinion will likely provide both Foster and 

PNC with significant insights into how it would evaluate this Court’s rulings on the 

claims related to the Property. 

Furthermore, the risk of prejudice for Foster would be significant. Most 

significantly, the Judgment of Foreclosure enabling PNC to sell the property is not, 

itself, an appealable order, but the Seventh Circuit is nonetheless considering 

whether this Court erred when it found in PNC’s favor on its motion for summary 

judgment, at least as to the Florida property; its opinion may relate to rulings the 

Court made regarding the Property. While PNC sought and was granted summary 

judgment on its foreclosure counterclaim, a judgment of foreclosure is not an 

appealable order. Nonetheless, if the Seventh Circuit reverses this Court’s grant of 

summary judgment, the completion of the sale would deprive Foster of a meaningful 

opportunity to preserve his ownership of the Property even if he ultimately prevails 

on his claims. 

Should the sale not be stayed, and should the Seventh Circuit not reverse the 

district court’s order granting PNC summary judgment before the sale, Mr. Foster 

may seek to file a voluntary petition in bankruptcy to obtain an orderly resolution of 

his debts. Conducting the sale of the Illinois property while the appeal relating to 

the Florida property is pending would risk Foster’s ability to timely file accurate 

and complete schedules, his statement of financial affairs, his plan, and may 

materially impact the feasibility of such a plan. All parties are aware that this 

litigation has been pending for an extremely long time, but PNC’s interests in 

liquidating the Kilpatrick property are not so pressing that Foster’s rights should be 

hamstrung in such a fashion. Indeed, PNC has already shown as much by waiting 

nearly two years to schedule the sale of the Property. 

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2. PNC’s notice of sale is materially deficient. 

Furthermore, the Counter-Plaintiff’s notice of sale – attached hereto as Exhibit 

A – does not comply with this Court’s Local Rule 69.1. Local Rule 69.1 provides that 

notice suffices in the following form: 

Pursuant to (order or judgment) of the United States District Court for the Northern District of 

Illinois, ______ Division, filed in the office of the clerk of that Court on (date) in the cause 

entitled (name and docket number) the undersigned will sell at public sale at (place of sale) on 

(date and hour of sale) the property in said (order or judgment) described and therein directed 

to be sold, to which (order or judgment) reference is made for the terms of sale and for a 

description of the property which may be briefly described as follows [...] 

Local Rule 69.1, eff. March 29, 2021.

Rather than following this format, PNC elected to notice its sale in an 

entirely different way. While PNC’s notice of sale bears most of the information that 

Local Rule 69.1 mandates, the Notice of Sale fails to clarify, to the Defendant’s 

deprivation, that the sale would be open to the public and all available buyers; 

identifying that the notice is a “public notice” does not satisfy 69.1’s requirement 

that the sale be identified as a public sale. 

The requirement that readers of the notice be informed that the sale be 

public makes good sense; greater interest from the public would increase possible 

bids and increase Foster’s surplus (or diminish Foster’s deficiency). PNC’s failure to 

follow the local rules harms Foster’s property interests under Illinois law, and 

necessitates remedy by PNC before the sale can be conducted. 

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WHEREFORE the Plaintiff/Counter-Defendant, Jeff Foster, requests this 

Court enter an order continuing the judicial sale of 6201 N. Kilpatrick, Chicago, IL 

for no less than 120 days, and issuing such other relief as this Court may deem just 

and proper. 

Dated: May 24, 2022 Jeff Foster,

 By: /s/ Justin Storer 

 One of His Attorneys 

Prepared by: 

Justin Storer (6293889) 

FACTORLAW 

105 W. Madison, Suite 1500 

Chicago, IL 60602 

Tel: (312) 878-6976 

Email: jstorer@wfactorlaw.com 

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