UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION

U.S. BANK NATIONAL 

ASSOCIATION, AS TRUSTEE, FOR 

THE C-BASS MORTGAGE LOAN 

ASSET-BACKED CERTIFICATES 

SERIES 2005-CB3,

Plaintiff,

v.

GEORGE DOSS and 

JACQUELINE DOSS,

 

 Defendants.

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Case No. 12-cv-4461

Judge John W. Darrah

MEMORANDUM OPINION AND ORDER

Plaintiff U.S. Bank National Association, as Trustee, for the C-BASS Mortgage AssetBacks Certificates Series 2005-CB3 filed a Complaint to Foreclose Mortgage on June 7, 2012. 

Plaintiff’s Motion for Default Judgment and Motion to Appoint a Special Commissioner were 

granted on October 10, 2012. An order of default, an order appointing special commissioner, 

and a judgment of foreclosure were entered. Defendants filed a Motion to Vacate Sale [42] on 

February 1, 2016. Defendants’ Motion to Vacate Sale [42] is denied.

BACKGROUND

Plaintiff filed a Complaint to Foreclose Mortgage on June 7, 2012, for the property 

located at 4850 W. Summerhill Drive, Country Club Hills, IL, 60478. Summonses were

returned executed on July 24, 2012, and Defendants’ answers were due on August 14, 2012. No 

answers were filed, and Defendants never appeared. Plaintiff filed a Motion for Default 

Judgment and a Motion to Appoint a Special Commissioner, which were granted on 
October 3, 2012. An order of default, an order appointing special commissioner, and a judgment 

of foreclosure were entered.

On October 22, 2014, Plaintiff filed a Motion to Amend/Correct the Complaint, alleging 

that a title review had revealed that the recorded mortgage did not contain the legal description of 

the property. Plaintiff asked leave to file a First Amended Complaint to add a reformation count 

and correct the Mortgage. That motion was granted, and Plaintiff filed its First Amended 

Complaint on November 6, 2014. On December 1, 2014, Plaintiff filed a Motion for Default 

Judgment as to Count II, the reformation count, of the Amended Complaint. On 

December 10, 2014, the Motion for Default Judgment was granted and an order of default as to 

Count II and an order for Judgment as to Count II were granted.

The judicial sale occurred on August 19, 2015. On December 17, 2015, an attorney 

appearance was entered on behalf of Defendants. Defendants filed the Motion to Vacate Sale on 

February 1, 2016.

LEGAL STANDARD

“A request to set aside a default judgment is controlled by Rule 60(b).” 

Pretzel & Stouffer, Chartered v. Imperial Adjusters, Inc., 28 F.3d 42, 44-45 (7th Cir. 1994). 

Under Rule 60(b), if it has been more than a year since a judgment was entered, a court may 

relieve a party from final judgment if: “(4) the judgment is void; (5) the judgment has been 

satisfied, released or discharged; it is based on an earlier judgment that has been reversed or 

vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies 

relief.” Fed. R. Civ. P. 60(b), (c). Rule 60(b) relief is “an extraordinary remedy and is granted 

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only in exceptional circumstances.” McCormick v. City of Chicago, 230 F.3d 319, 327 (7th Cir. 

2000).

ANALYSIS

Defendants first argue that Plaintiff did not receive a default judgment on Count I of the 

Amended Complaint and that the judicial sale is void because of this. While Defendants do not 

expressly argue this, it appears that their theory is that the filing of the Amended Complaint 

erased the default judgment entered on the foreclosure count of the original Complaint. 

Defendants provided no legal authority for this argument1

, but it will be addressed. 

“When a plaintiff files an amended complaint, the new complaint supersedes all previous 

complaints and controls the case from that point forward.” Massey v. Helman, 196 F.3d 727, 

735 (7th Cir. 1999). However, a valid default judgment was entered on the foreclosure claim on 

October 3, 2012. Defendants present no authority that a valid default judgment is erased by an 

amended complaint that makes technical changes. Since more than one year has passed since the 

entry of the default judgment, it may only be overturned for voidness or any other reason that 

justifies relief. Defendants do not argue that the judgment was void or that there is any reason 

justifying relief. Defendants were successfully served on July 24, 2012, but failed to appear or 

otherwise contest the action against them until December 17, 2015. 

In their reply brief, Defendants argue that the legal description and permanent index 

numbers are incorrect in both complaints and fail to provide, with reasonable certainty, the real 

estate subject to the mortgage. As an initial matter, arguments raised for the first time in a reply 

1 “This court has no duty to research and construct legal arguments available to a party.” 

Head Start Family Educ. Program, Inc. v. Coop. Educ. Serv. Agency 11, 46 F.3d 629, 635 (7th 

Cir. 1995).

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brief are waived. See Mendez v. Perla Dental, 646 F.3d 420, 423-24 (7th Cir. 2011) (“. . . it is 

well-established that arguments raised for the first time in the reply brief are waived.”). 

Defendants do not claim that they were unaware their residence was being foreclosed upon. 

Defendants also provide no justification for their failure to appear in the case or make any 

challenge until three years after the default judgment of foreclosure was entered. Defendants 

have not met the “heavy burden on the party seeking to undo an existing judgment.” Disch v. 

Rasmussen, 417 F.3d 769, 778-79 (7th Cir. 2005).

Defendants also argue that Plaintiff did not follow the requirements of Illinois Supreme 

Court Rule 114 because Plaintiff failed to file an affidavit showing the types of loss mitigations 

programs that apply to the mortgage, what steps were taken to offer the loss mitigation programs 

to the mortgagor, and the status of any loss mitigation efforts. However, this is only required 

“where a mortgagor has appeared or filed an answer or other responsive pleading.” 

Ill. S. Ct. R. 114(a). As Defendants did not appear until December 17, 2015, no affidavit was 

necessary. Defendants again raise new arguments in their reply brief by arguing that Plaintiff 

must prove the Illinois Mortgage Foreclosure Law applies. Even if the new argument was not 

waived, it would negate Defendants’ original argument. If the Illinois Mortgage Foreclosure 

Law did not apply, then no affidavit would be necessary under the Rule.

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CONCLUSION

Defendants have not shown that the exceptional circumstances justifying the 

extraordinary remedy of Rule 60(b) relief are present. Their arguments that Plaintiff did not 

comply with Illinois Supreme Court Rules are similarly unavailing. Defendants’ Motion to 

Vacate Sale [42] is denied.

 

Date: May 10, 2016

JOHN W. DARRAH

United States District Court Judge

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