2015 IL App (1st) 133017 FIRST DIVISION AUGUST 10, 2015 No. 1-13-3017 HARRIS BANK, N.A., ) Appeal from the ) Circuit Court of Plaintiff ) Cook County. ) (EDC Fund 2, LLC, ) Plaintiff

- Appellee), ) ) No. 09 CH 12471 v. ) ) EMMA HARRIS , Not Personally, But as Trustee On Behalf of ) the E mma L. Harris TRUST Dated October 21, 2003; ) EMMA L. HARRIS, ) Honorable ) Michael J. Otto, Defendants -Appellants. ) Judg e Presiding

.

______________________________________________________________________________ JUSTICE CUNNINGHAM deli vered the judgment of the court, with opinion. Presiding Ju stice Delort and Justice Harris concurred in the judgment and opinion. OPINION ¶ 1 Em ma L. Harris (Emma ), individually and as trustee on behalf of the Emma L. Harris Revocable Trust D ated October 21, 2003 , appeal s from an order of the circuit court of Cook County denying her amended petition pursuant to section 2

- 1401 of the Illinois Code of Civil Procedure (735 ILCS 5/2

- 1401 (West 2012)), seeking relief from a September 2011 order confirming the foreclosure sale of her former property. ¶ 2 BACKGROUND ¶ 3 Emm a , through her revocable living trust, was the owner of real property at 6609

- 11 and 6605- 07 South Greenwood Avenue in Chicago (the property), which consists of two adjoining residential apartment buildings containing twelve apartment units . According to Emma , a senior1-13-3017

2 citizen who is at least in her late eighties , 1 she and her late husband purchased one of the b uildings in 1980 and the second in 1989. Emma lived wit hin one of the apartments at the property, and rented out other apartment units as a source of income. ¶ 4 According to Emma , after her husband passed away in 1995, she managed the property independently until approximately 2003, when she hired a property manager. Emma alleges that the manager failed to collect ren ts due from tenants and otherwise mismanaged the property ,

" such that rents collected did not cover the mortgage payments, utilities and maintenance on the buildings , leav in g [Emma ] in increa sing debt." By late 2006, due to the negligence of the property manager, the property was "fal[in g] into disrepair, " and suffered from outstanding bu ilding code violations, lapsed insurance coverage, and overdue utility bills. As a result, the apartments at the property could not be rented for full market value, and there were only three regularly p aying tenants at the property besides Emma. ¶ 5 In November 2006, Emma sought a refinance loan on the pr operty from Harris Bank, N.A. (the bank) , who was the original plaintiff in this litigation

. According to Emma , she sought the 2006 loan to pay off " two ex isting mortgages and other outstanding property

- related bills."
Emma met with a bank employee , Allison Regina Be ll, in connectio n with the loan. Emma claims that she informed Bell that she was on a limited income from Social Security and a pension, and d isclosed that there were only a few paying tenants at the property. However,

ac cording to Emma , Bell filled out her loan application with false information regarding the

1 Emma's filings in the trial court are inconsistent regarding her precise age. Her original section 2 -1401 petition, filed in December 2012, states she is "in her eighties." Other submissions to the trial court state that she was either 84 or 86 years old at the time the m ortgage in question was executed in 2006, which suggest that Emma is currently in her nineties.1-13-3017

3 financial health of the property – stating that the apartment buildings " were fully o ccupied" with paying tenants

— in order to ensure that the bank would approve a loan to Emma

. Emma claims that she never saw and was later denied access to the loan application that was prepared by Bell

. ¶ 6 On N ovember 29, 2006, Emma entered into a promissory note with the bank under which she borrowed the principal amount of $350,000 to be repaid at an annual interest rate of 7.070%. The note called for repayment over three years , specifying that Emma " will pay this loan in 35 regular payments of $2,369.15 each and one irregular last payment estimated at $341,465.74 , " with the last payment due on December 1, 2009. Emma's indebtedness under the promissory note was secured by a mortgage on the property as well as an assignment of rents , both of which were also dated November 29, 2006. Notably, the promissory note executed by the bank and
Emma stated that the address of the "borrower" w as at 7337 Shore Drive in C hicago, a different address than the mortgaged property on Greenwood Avenue. Emma's submissions to t he trial court indicated this was the address of Emma's daughter, yet the record is unclear why that address was listed on the loan document. ¶ 7 Emma does not dispute that she executed the promissory note and mortgage. However , she claims that the bank did not explain to her, and that she did not understand, the repayment terms of the loan and the corresponding risk of default and foreclosure. In fact, Emma claims that the bank knew and intended that Emma , as an elderly person with limited income, would not be able t o fulfill the loan's repayment terms

. ¶ 8 It i s undisputed that Emma did not repay under the terms of the loan. On March 19, 2009, the bank filed a complaint seeking foreclosure of the mortgage on the property b ased on
Emma's payment default , claim ing an unpaid principal balance of $ 343,253.90.1-13-3017

4 ¶ 9 On April 6, and April 9, 2009, the Cook County sh e riff attempted without success to

serve Emma with the summons and complaint at 73 37 South Shore Drive in Chicago, the address stated on the promissory note. Emma maintains that she did not reside at that address, but lived at an apartment at the mortgaged property. ¶ 10 In April 2009, the bank moved for immediate possession and appoint ment of a receiver of the property to collec t rents and to show vacant units to potential renters

. On April 17, 2009,
t he trial court granted th e motion and appointed a receive r to manage the property and directed the receiver to file bimonthly reports. Beginning in August 2009, the receiver submitted periodic reports to the court, including information on rents collected from the property's tenants. ¶ 11 In light o f the previous unsuccessful attempt s to serve Emma , on August 2 6 2009, the court granted the bank's motion to appoint a special process server, LaSalle Process Servers

. Accor ding to an affidavit executed by LaSalle Process Servers, Emma was served p ersonally on September 30, 2009 at 7337 South Shore Drive. Emma disputes that she was served on that date. ¶ 12 Emma failed to respond to the complaint or otherwise appear in the action

. On November 20, 2009, the bank moved for a default judgment and judgment of foreclosure and sale , suppo rted by LaSalle Process Servers' affidavit of service . On December 14, 2009, t he trial
court ent ered a defa ult j udgment of f oreclosure and authorized a sale o f the property. ¶ 13 On February 23, 2010, Emma's first counsel in this action , attorney Glenda Gray, filed a general appearance in the trial c ourt on behalf of Emma

. However, attorney Gray filed no
answer to the f oreclosure complaint or any other fil ing on behalf of Emma. ¶ 14 On March 2, 2010, the bank filed a n otice of sheriff's sale , specifying that the Cook County sheriff would sell the property by public auction on March 31, 2010. The record reflects1-13-3017

5 that on the day before the scheduled sale date, March 30, 2010, Emma (through attorney Gray ) filed a Chapter 13 bankruptcy petition , postponing th e sheriff's sale. The bankruptcy proceedings are not in the record on appeal. However, the parties' trial court filings a cknowledge that Emma's first bankruptcy petition was dismissed, and that a second bankruptcy petition was also filed and dismissed prior to the eventual sheriff's sale of the property. ¶ 15 On August 13, 2010, the bank filed another notice of sheriff's sale, stating that the property would be sold at public auction on September 16, 2010. On September 3, 2010, attorney Gray filed a motion t o withdraw which stated that Emma h ad elected to proceed with different counsel. The motion to withdraw was granted on October 4, 2010. ¶ 16 Emma's second counsel, Al Hofeld Jr., filed an appearance on behalf of Emma on September 13, 2010, three days before the scheduled sheriff’s sale . O n the same date, Emma filed an "emergency moti on to stay sale " as well as an "emergency § 5/2-1301(e) petition to

v acate the defau lt judgment." 735 ILCS 5/2-1301(e) (West 2012). ¶ 17 In those September 2010 filings , Emma claimed she was never served personally with the foreclosure complaint and, for the first time, also alleged fraud and other misconduct by the bank in connection with or iginating the November 2006 loan. The emergency motion to stay the foreclosure sale claimed "this is an egregious case of predatory lending in which the bank knowingly explo i ted a vulnerable, 84

- year - old woman by making her a loan that –— it knew at the t ime

–— she could not afford to repay and did so by inflatin g her in come to get the loan through underwriting." ¶ 18 Th e emergency petition to vacate the default judgment sought leave to file an answer with affirmative defense s and counterclaims for: "improvident lending (i.e, making [ Emma ] a1-13-3017

6 lo a n the bank kn ew, at the tim e or origination, that she c ou ld not afford to repay), fraud (i.e., inflating her income to get the loan through underwriting) and discrim in ation based on age, sex and race (i.e., singling out a nd exploiting [Emma] because of her perceived vulnerabilities as a lone, elderly , African

- Ame r ican female in the mar ketplace)." As an exhibit to the petition to
vacat e the default judgment, Emma also include d a proposed answer and counterclaims to the ban k's foreclosure complaint which claimed tha t the promissory note was "void" because it resulted from the bank’s fraudulent conduct. The p roposed pleading alleged that the bank

" originated the loan through fraud " as it " made her a loan that – it knew at the time – she could never afford to repay ." ¶ 19 According to the proposed pleading submitted with the September 2010 petition to vacate the default judgment , Emma had been " referred b y the trustee of her churc h to [the bank] for a refinance loan for her proper ty." The bank's employee, Bell, alleg edly filled out Emma's loan application and "falsified and misrepresented [Emma's ] income during the underwriting process
in order to get the loan approved." The proposed pleading claimed that Bell and the bank knew
t hat " the loan terms w ere totally unsustainable on [Emma's] income" but that Bell " drew the loan in such a way as it would be approved by [the bank’s] underwriting department ." Emma sought to p lead affirmative defenses including " fraud in the inducement" as well as violations of the federal Truth in Lending Act and Illinois Fairness in Lending Act , the Illinois Consumer Fraud Act, Equal Credit Opportunity Act, Civi l Rights Act, Fair Housing Act, and unclean hands. ¶ 20 T he trial court granted the emergency mo tion to stay the sheriff's sale and set a briefing sche dule on the petition to v acate the default judgment. On October 5, 2010, the bank responded to the petition to vacate, claiming that Emma "ha[d] no meritorious de fenses" and that denial was1-13-3017

7 independen tly w arranted because Emma "ha[d] not been diligent in her defense of this matter or in bringing" the petition to vacate the default. The bank clamed that Emma's first counsel, who appeared in February 2010, had been aware of the default judgment, and tha t Emma offered no reason why it was not until September 2010 that she (through her second attorney) sought to vacate the default judgment or to assert any affirmative defenses. The bank also urged that
Emma had been served, relying on the affidavit of serv ice from the special process server. ¶ 21 On October 12 , 2010, Emma s ubmitted a reply which r eite rated that the bank "intentionally defrauded" her " by originating a loan *** th at it knew then would inevitably result in default and for eclosure" due to her inab ility to repay it. Emma a rgue d that a judgment of default could be vacated even without a showing of diligence. Emma further argued that she was in fact diligent, again claiming that she was not personally served. Emma ac knowledged that she had " filed two separate bankruptcies in an attempt to save her property and wor kout a payment she could afford," and argued this was " evidence not of a lack of diligence *** but of an abundance of diligence ." A s a "financially unsophisticated elder," she claimed that she " did not understand *** the events of fraud that occurred at origination until September 8, 2010, when she first met with [her second attorney]" and that her "inadvertence is excusable in the face of a much graver injustice committed by the bank." ¶ 22 On October 27, 2010, the trial court denied Emma's petition to vac ate the December 2009 default judgment in an order stating that the basis of the denial was a "lac k of due dil igence." Although the appellate record does not contain a transcri pt of procee dings , Emma's subsequent motion to r econsider reflect s that the t rial court, in denying the petition, referenced : the affidavit of service on September 30, 2009, the fact that Emma's first attorney appeared in February 20101-13-3017

8 and had repeatedly ap pe ared befo re the court without chall enging the December 2009 default judgment, and that Emma had filed for bankruptcy twice, shortly before the scheduled date of the sheriff's sale of the property

. ¶ 23 On November 24, 2010, Emma filed a motion for reconsideration of the denial of the petition t o vacate, arguing that the trial court erred by making "due diligence the sole or determining factor in its ruling " and had failed to adequately consider the equities of the situation. The motion to reconsider included an affidavi t from Emma in which she stated that she "did not become awar e that there was a foreclosure case until sometime in January 2010" after which time she was referred to her first attorney. Emma's affidavit acknowledged that her first attorney had "f iled the two bankruptcy cases" but stated: "I do not know or understand why [her first attorney ] did not do anything about the default judgment . I was not aware of the default judgment until I met [Emma's second attorney]." ¶ 24 The affidavit further stated that Emma "was never pe rsonally served with a summons or

co mplaint

. " According to the affidavit, the address stated in the process server's affidavit, 7337 South Shore Drive in Chicago , (which was the address in the promissory note) was the address where Emma's da ughter lived. However , Emma stated that she lived at the foreclosed property , at 6607 S. Greenwood Avenue. ¶ 25 Pendi ng decision on the motion for reconsideration , the court permitted the sheriff's sale to proceed. The sale was fina lly held on February 23, 2011, at which time the bank purchased the property for $160,560

. A fter accounting for that sale amount, a deficiency in the amount of $312,085.58 remained on Emma's indebtedness under the terms of the promissory note.1-13-3017

9 ¶ 26 On March 22, 2011, w hile the motion for reconsideration of the denial of her motion to
vacate re mained pending, Emma's second attorney filed a moti o n to withdraw , citing "irre concilable differences" with respect to " matters of attorney

- client communication." On April 12, 2011, the court den ied the mo tion to reconsider the denial of the petition to vacate the default judgment

. On April 19, 2011, the court granted the motion to withdraw by Emma's second attorney. ¶ 27 On May 17, 2011, the bank filed a motion to confirm the February 23, 2011 sherif f's sale of the property in the amount of $160,560, and additionally sought a deficiency judgment agains t Emma in the amount of $312,085.58. In August 2011, Emma —through her third legal counsel, Kaplan Silverman LLC

— filed a motion to vacate the February 2 3, 2011 sale. That motion claimed that, after the sale was postponed from the previously scheduled date , the bank had failed to give notice by publication of the rescheduled sale date. The bank filed a response arguing that republication of n otice of the sale was not required because individual notice was provi ded to the parties , and that Emma's prior counsel had agreed to waive repub lication of notice. O n September 12, 2011, the court entered an order reflecting that Emma had withdrawn her moti on to v acate the February 23, 2011 sale. ¶ 28 Also on September 12, 2011, the court entered an "o rder approv ing report of sale and distribution , confirming sale for deficiency judgment and for order of po ssession." The order approved the February 23, 2011 sale as fai r and proper and directed the sheriff to deliver a deed to convey title to the bank ' s assignee , Dearborn Street Holdings, LLC

– Series 6 Harris/Greenwood (Dearborn) , and specified that Dearborn would be entitled to possession of1-13-3017

10 the property after 70 days. The September 12, 2011 order also entered an in personam deficiency judgment in the amount of $312,085.58 against Emma. ¶ 29 On June 6, 2012, the property was sold by Dearborn to a third party, EDC Fund 2, LLC (EDC) , which is the current plaintiff

- appellee in this appeal . EDC , as the new owner of the property, filed a motion on July 23, 2012 to substitute itself as the plaintiff in this action . EDC's moti on also stated that the sheriff had refused to evict Emma because the o rd er failed to state her specific unit at the property, and thus requested modification of that order. On October 10, 2012, the court ordered Emma to file a response to EDC's motion

. On D ecember 10, 2012, Emma's fourth attorney, James Glass ( Emma's couns el in this appeal ), en t ered an app earance. Emma filed an opposition to EDC's motion on or about December 17, 2012. ¶ 30 Shortly thereafter , o n Decembe r 20, 2012, Emma filed a petition pursuant to section 2

- 1401 of the Code of Civil Procedure seeking relief from the September 12, 2011 order

con firming the sherif f's sale, as well as leave to file an answer with affirmative defenses and counterclaims. The section 2 -1 401 petition —much like the September 2010 motion to vacat e default judgment filed by Emma's second attorney

— was largely premised on allegations of fraudulent conduct by the bank and Bell, its employee. The section 2 -1401 petiti on alleged that the bank "knew or should have known that the subject [bank] loan was unfair" and that Emma "did not un derstand or appreciate the high risk of ea rly default on the [bank] loan as written " or the risk of foreclosure. The petition c laimed that in order to qualify Emma for the loan , Bell
"f

als ely notated on [Emma's ] loan application *** that the building[s] wer e fully occupied with
tenants p aying $800 per month for rent, when this was not the case." The petition claimed tha t the bank made "an unfair predatory loan that had a high risk of early defau lt as evidenced *** by1-13-3017

11 the fact tha t several months after the [bank] loan cl osed *** [ Emma] was left wi th only a few thousand dollars from the principal loan proceeds, with no demonstrated ability to repay ." ¶ 31 Under the heading "Due Diligence , " the section 2

- 1401 petition acknowledged that
Emma had previously been represented by other counsel in the foreclosu re suit but alle ged that "unbeknownst to [Emma] non e of her attorney(s) ever file d an Answer and Affirmative De fense or Counterclaim" to the for eclosure co mplaint . According to the se c tion 2

- 1401, petition, she "first discovered that no formal legal defense had been mounted in her behalf in the foreclosure suit in October 2012." ¶ 32 The petition alleged several "meritorious defenses and counterclaims to the foreclosure suit." Among these, Emma alleged "fraud in the inducement" as she "did not understand or appreciate the high ris k of early default on the [bank] loan as wri tten ." The section 2 -1401 petition also alleged that the bank failed to act in good faith, violated the Illinois High Risk Home Loan Act and the I llin ois Consumer Fraud Act, engaged in "equi ty stri pping" in violation of the Illinois Fairness in Lending Act and had violated "the Cook County predatory lending ordinance." ¶ 33 On January 16, 2013, the bank filed a moti on to strike the section 2 -1401 petition , arguing that Emma failed to set forth a meritorious claim, failed to demonstrate due diligence in
pre senting her claims in the underlying litigation, and failed to show due diligence in filing her petition . The bank pointed out that the claim of a "predatory" l oan that the bank knew Emma would be unable to pay "was previously asserted by [Emma ] in her September 13, 2010 Petition
to V acate Default Judgment " which had been denied i n October 2010. The bank argued that the section 2 -1401 petition "contain s only unsupported, meritless claims that w ere already known to1-13-3017

12 [Emma ] tha t could have been previously asserted throughout the underlying litigation ." The bank furt her argued that Emma failed to act with due di ligence in filing her petition, as it was "filed almost two years after the sheriff's sa le was held and more than a year after" the sheriff's sale was confirmed in September 2011. ¶ 34 On March 13, 2013, the case was reassigned to a new trial judge following the recusal of the prior judge overseeing the matter. ¶ 35 On April 26, 2013, the trial court g ranted Emma leave to file an amended section 2 -1401 petition. Also on that date, the court granted EDC's motion to be substituted as the plaintiff in place of the bank

. ¶ 36 On Apri l 29, 2013, Emma filed her am ended section 2

- 1401 petition. The amended peti tion maintained the original petition's allegations of fraudulent conduct, including the allegations that Bell inserted false information on Emma's loan application that the apartments at the property "were fully or almost fully occupied with tenants payin g approximately $800 per
month for rent." The amended section 2

- 1401 petition further alleged that information derived from the court-appointed recei ver's first report on the property further su pported her allegations of Bell's fraudulent conduct, as "Bel l's description [in the 2006 loan application] of the number of tenant s and the amount of rent they wer e actually paying was at odds with that reported" by the court- appointed receiver. The amended section 2

- 1401 petition noted that the first report by th e receiver, dated A ugust 21, 2009, included a rent roll showing that there were only three
tenan ts at the property besides Emma , and that those three tenants were paying monthly rents of only $400 and $550 for the months of June, July, and August 2009.1-13-3017

13 ¶ 37 T he amended section 2 -1401 petition asserted the very same "meritorious defens es" set forth in the original section 2 -1401 petition, including "fraud in the inducement," violation of the lender's duty to act in g ood faith, "equity stripping," and "violation of Cook County Predatory Lending Ordinance." However, on the topic of due diligence, the amended petition added detail s regarding the alleged failures of Emma's prior attorneys, urging that "[t] o the extent that failure to file affirmative defenses or c ounterclaims in a foreclosure case constitutes legal negligence, the Court should find that mitigating circumstances preserve [ Emma's ] due diligence in the form of lack of cooperation b etween" her first two attorneys. The amended section 2 -1401 petition acknow ledged that her second attorney ( Hofel d) had filed a motion to vacate the default judgment in October 2010 which asserted affirmative defenses and counterclaims , but claimed "these were not specifically pleaded *** due to the lac k of cooperation" betw een her first two attorneys, Gray and Hofeld. The amended section 2 -1401 petition a lleged that "[e] i ther attorneys Gray and Hofeld failed to commu n icate" or that their communication " was meanin gless and ineffective as attorney Gray, for wha t ever reason, n eve r worke d up [ Emma's ] mortgage foreclosure affirmative defenses and counterclaims into a duly constituted defensive pleading that attorney H ofeld could ha v e attached to his emergency moti on to vacate" the default judgment. Emma also submitted an affidav it in support of the amende d section 2 -1401 petition in which she stated that she had not learned until October 2012 that her prior attorneys had not
f ile d an answer in the mortgage foreclosure cas e, repeating the allegations regarding the "lac k of
coopera tion " between her first and second attorneys. ¶ 38 On May 10, 2013, EDC filed a respons e to the amended section 2 -1401 pet ition that adopted the arguments that had been asserted in the bank's prior January 2 013 motion to strike1-13-3017

14 the original section 2

- 1401 pet it ion. In addition, EDC's response made the argument that, as a subsequent purchaser of the property for value , the section 2

- 1401 petition could not deprive
EDC of its interest in the property even if the petition was otherwise meritorious and asserted

w ith due diligence

. On May 14, 2013, Emma filed a memorand um of law in support of he r amended section 2

- 1401 petition, arguing, inter alia , that the "noncooperation of her first and second foreclosur e defense attorneys thereby preserve[s] her due diligence ." ¶ 39 On June 28, 2013, the trial court dismissed Emma's amended 2

- 1401 petition with prejudice "for la ck of diligence ." On July 18, 2013, Emma filed a "motion for rehearing, retrial or modification of the June 28, 2013 judgment" pursuant to section 2 -1203 of the Code of Civil Procedure. 735 ILCS 5/2

- 1203 (West 2012). Emma a rgued that the trial court had not properly consider ed the "non

- cooperation of Emma's first two foreclosure defense attorneys," which she claimed was " newly discovered ev idence" as she claimed that she did not discover until October 2012 that her first two attorne ys had failed to answer the complaint. The motion for rehearing also claimed that the trial co urt did not properly consider the "newly discovered evidence" alleging that Bell f alsely s tated on Emma's November 2006 loan application that the ren tal units
were " fully occupied with tenants paying approximately $800 per month for rent"; the motion for rehearing urged that these allegations were "corroborated by the receiver's rent ro ll showing the receiver's receipt of $3850 in total rents *** during the months of June, July, and August 2009." The motion for rehearing a lso argued that the trial court had been "unduly persuaded " that the much earlier October 2010 ruling (by a different judge) finding a lack of diligence with respect
to Emma's petition to vacate the default judgment governed the issue of diligence with respect to her section 2 -1401 petition.1-13-3017

15 ¶ 40 On September 4, 2013, the trial court denied Emma's motion for rehearing. On Septembe r 19, 2013, Emma filed a notice of appeal. ¶ 41 ANALYSIS ¶ 42 Before we address the merits, we first address EDC's claim that we lack jurisdiction because Emma's notice of appeal was untimely. In partic ular , EDC claims that Emma's failure to file her notice of appeal wit hin 30 days following the trial court's dismissal of her amended secti on 2

- 1401 petition on June 28, 2013 deprives us of jurisdiction. EDC acknowledges that within 30 days of the denial of the amended section 2- 1401 petition , Emma filed a motion for reh earing of that decision . EDC also does not dispute that after the September 4, 2013 denia l of the motion for rehearing , Emma filed a notice of appeal within 30 days, on September 19, 2013. Nonetheless, EDC urges that the motion for reh e arin g did not toll the 30

- day time to appeal from the June 28, 2013 dismissal. Thus, EDC urges that Emma's failure to file a notice of appeal within 30 days of the June 28, 2013 dismissal order precludes appellate jurisdiction. ¶ 43 This question is determined by Illinois Supreme Court Rul e 303 (eff. May 30, 2008) and Rule 304 (eff. Feb. 26, 2010). Rule 303(a)(1), governing appeals from final judgments of the circuit court in civil cases, provides that "[t]he no tice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from, or, if a timely posttrial motion directed against the judgment is filed, *** within 30 days after the entry of the order disposing of the last pending postjudgment motion directed ag ainst that judgment or order ." Ill. S. Ct. R. 303(a)(1) (eff. Ma y 30 , 2008 ). At the same time, Rule 304(b)(3) provides that "[a] judgment or order granting or denying any of the relief prayed in a petition under1-13-3017

16 section 2 -1401" is appealable without a special finding. Ill. S. Ct. R. 304(b)(3) (eff. Feb. 26, 2010). ¶ 44 The supreme court rules do not explicitly state whether a motion for reconsideration of a dismissal of a section 2

- 1401 petition is co nstrued as a "timely posttrial moti on directed against the judgment " that toll s the time to file a notice of appeal pursuant to Rule 303(a)

. In othe r words, it is not immediately apparent from the rules whether the filing of a motion to reconsider the den ial of a section 2

- 1401 petiti on permits the appellant to file a notice of appeal up to 30 days following the denial of the motion to reconsider. EDC notes that, in a 1980 case concerning a petition brought under section 72 (section 2

- 1401's statutory predecessor), this court he ld that "[m ] otions to reconsider the court's ruling on a section 72 petition should not be used to toll the time for appeal." Dempster Plaza State Bank v. American National Bank & Trust Co. of Chicago , 83 Ill. App. 3d 870, 873 (198 0). ¶ 45 However, our supreme court has since decided this question in favor of allowing appellate jurisdiction , holding that "it is fairly inferable that the timing of a Rule 304(b)(3) appeal is to be governed by Rule 303(a)(1), including its provision for a t oll following a post

trial motion

. " (Emphasis added.) Elg v. Wh ittington , 119 Ill. 2d 344, 355 (1987) (noting tha t "section 2

- 1401 action s are not sim ply continu ations of previous actions bu t new causes of action, and therefore parties ag ainst who m secti on 2- 1401 judgments have been rendered should enjoy the same appellate righ ts as all other appellants " ( id. at 355 -56) ); see also Burnicka v. Marquette Nationa l Bank , 88 Ill. 2d 5 27, 530 -31 (1982) (holding that a motion to reconsider an

o rder g ranting a pe tition under section 72 tol led the time for filing a notice of appeal ).1-13-3017

17 ¶ 46 Under our supreme court's interpretation of Rules 303(a)(1) and 304(b)(3) , Emma's notice of appeal was timely. That is, although Emma did not file a notice of appeal within 30 days of the J une 2013 deni al of her section 2

- 1401 petition, she file d a motion for rehearing of the trial court's ruling within 30 days. Because she did so, pursuan t to Rule 303(a)(1) her time to file a notice of appeal was extended to "30 days after the entry of the order disposing of " that motion for rehearing

. Emma filed her notice of appeal on September 19, 2013, within 30 days after the September 4, 2013 denial of her motion for rehearing

. Accordingly, we have j urisdiction

. ¶ 47 We thus turn to the merits of Emma's appeal. Although the trial court dismissed Emma's amended section 2

- 1401 petition on the basis of "lack of diligence," we conclude that dismissal was independently warranted on other grounds

. First, o ur court has held that, due to the provision s of the Illinois Mortgage Foreclosure Law (Foreclosure Law) , a section 2 -1401 petition cannot be asser ted in an effort to vacate the circuit court's confirmation of a foreclosure sale. See U.S. Bank National Ass'n v. Prabhakaran , 2013 IL App (1st) 111224. ¶ 48 In Prabhakaran , as in this case, the prior owner filed a section 2

- 1401 petition seeking to
vacate a foreclosure judgment and the circuit court's order confirming the judicial sale of the foreclosed property to a bank (U.S. Bank). Id. ¶ 1. However, U.S. Bank asserted that "section 15-509 (c) of the Foreclosure Law barred the d efendant's section 2

- 1401 petition as a matte r of law because the selling officer had already delivered a deed to U.S Bank following the circuit
court' s order confirming sale of the property ." Prabhakaran , 2013 IL App ( 1st ) 111224, ¶ 26. Section 15

- 1509(c) of the Foreclosure Law states that the "vesting of title" to property by delivery of a deed following a foreclosure sale, "unless otherwise specified in the judgment of1-13-3017

18 foreclosure, shall be an entire bar of *** all claims of parties to the foreclosure ." (Emphasis added.) 735 ILCS 5/15

- 1509(c) (West 2012). Our court agreed with U.S. Bank's argument in Prabhakaran , finding " [t] here is simply no Illinois authority to support th e d e fendant's argument that she can utilize section 2 -1401 to circumvent *** section 15

- 1509(c) of the Foreclosure Law after the circuit court confirmed the sale of the property." Prabhakaran , 2013 IL App (1st) 111224, ¶ 30. We concluded that " [t] he cle ar and unambiguous language of section 15 -509(c) of the Foreclosure Law bars the defen dant's claims in her secti on 2

- 1401 petition and is dispositive." Id. As in Prabhakaran , we hold that section 15 -1509(c) of the Foreclosure Law applies in this case to bar Emma's section 2

- 1401 petition. ¶ 49 Moreover, just as section 15

- 1509(c) of the Foreclosure Law limits the claims that may be asserted after the judicial sale of foreclosed property, section 2 -1401 (e) of the Code of Civ il Procedure similarly precludes a s ection 2- 1401 petition from affecting the disposition of property transferred to a third party after the entry of the challenged judgment. See 735 ILCS 5/2 -1401(e) (West 2012). S ection 2

- 1401(e) provides that "the vacation or modification of an order or judgment pursuant to [section 2

- 1401] does not affect the right, title or interest in or to any real or personal property of any person, not a party to the original action, acquired for value after the entry of the order or judgment but before the filing of the petition." Id. In this case, Emma's property w as transferred for value to EDC

— which was not a party to the original acti on— in June 2012, after the September 2011 confirmation of the foreclosure sale and before Emma filed her first section 2

- 1401 pe tition. Thus, section 2

- 1401(e) similarly barred Emma from asserting a section 2 -1401 petition attacking EDC's interest i n the property.1-13-3017

19 ¶ 50 Even if our holding in Prabhakaran and the express language of section 2

- 1401(e) did not otherwise bar Emma's sect ion 2- 1401 petition , we would nevertheless affirm the trial court 's dismissal due to her lack of diligence

. Contrary to her arguments on appeal , Emma's petition was subject to due diligence requirements, and the trial court did not abuse its discretion in
fi nding that she failed to show due diligence. As Emma's arguments implicate recent precedent by our supreme court discussing the types of section 2

- 1401 petitions and the requisite showing of due diligence, we proceed to address those contentions. ¶ 51 Emma arg ues that she did not need to show diligence, and in the alternative , cl aims that any lack of diligence by her should have been excused by her prior attorneys' conduct. First,
Emma argues that her p etition was in the nature of a " bill of review for errors or law apparent on the face or the record," and that "[t] his type of [section] 2

- 1401 petition need not show diligence." Emma relies heavil y on our Second District's decision in Aurora Loan Services, LLC v. Pajor , 2012 IL App (2d) 110899, which explained : "Current law reco gnizes at least three primary typ es of section 2

- 1401 petitions. The most familiar is the 'ne w facts' type ***. Also familiar is the petition to vacate a void judgment ***. A third type, base d on errors of law apparent on the face of the record is no w r are, but remains viable ." Id. ¶ 15. The Second District stated that our supreme court's 1958 decision in Collins v. Collins , 14 Ill. 2d 178 (1958) contains "the best description of this [third] kind of petition." Aurora , 2012 IL App (2d) 110899, ¶ 15. ¶ 52 "In Collins , the supreme court noted that section 2- 1401 (then section 72 of the Civil Practice Act (Ill. Rev. Sta t . 1955, ch. 110, ¶ 72)) incorporated the power, formerly available under bills of review, to vacate final judgments based on legal errors." Id. ¶ 17 (citing Collins , 14 Ill. 2d at 182 -83). Collins explained that : "Bills of review wer e formerly available for the1-13-3017

20 purpose of obtaining relief from decrees for erro rs appare nt upon the face of the record" and
were " applicable where the decree was contrary to a rule of law or statutory provision ." Collins , 14 Ill. 2d at 183. Our Second District in Aurora stated that "[u] nlike the usual test applie d to *** section 2

- 1401 petitions, in a Collins

- type petition the petitioner need n ot show diligence."
Aurora , 2012 IL App (2d) 110899, ¶ 19. ¶ 53 Emma urges that her amended section 2

- 1401 petition was in the nature of a "bill of review" seeking to correct an error of law apparent on the face of the record, as described in Collins . Thus, s he argues that her section 2

- 1401 petition was not subject to any due diligence requir ement and could not be dismissed on that basis

. As explained below, w e disagree with
Emma's characterization of her sectio n 2

- 1401 petition as asserting an error of law

. Rather, her section 2 -1401 petition was heavily fact-dependent. ¶ 54 Notably, our supreme court has recently examined the t ypes of section 2 -1401 petitions.
See Warren County Soil & Water Conservation District v. Walters, 2015 IL 117783. Warren County exp lained that "a section 2

- 1401 petition can present either a factual or legal challenge to a final judgment or order," and "the nature of the challenge presented in a section 2 -1401 petition is critical because it dictates the proper standard of review on a ppeal." Id. ¶ 31. ¶ 55 Warren County noted that the "seminal decision on section 2

- 1401 practice is Smith v. Airoom, Inc. , 114 Ill. 2d 209 (1986)." Id. ¶ 36. As explained by Warren County : " Airoom established that to be entitled to relief from a final judgme nt or order under section 2

- 1401, the petition must set fo r th specifi c factual allegations supporting each of the following elements: (1) th e existence of a meritorious defense ; (2) due diligence in presenting this defense or claim to the circuit court in the original action; and (3) due diligence in filing the section 2

- 1401 petition for1-13-3017

21 relief. " Id. ¶ 37 (citing Smith v. Airoom , Inc. , 114 Ill. 2d 209, 220-21 (1986) ). Under
Airoom ,"[t] he question of whether relief should be gr anted lies within th e sound discretion of th e circuit court, depending on the fact s and equities presented . [Citation

. ] Accordingly *** a reviewing court will revers e the circuit court's ruling on the petition only if it cons titutes an abuse of discretion." Id. (citing Airoom , 114 Ill. 2d at 221). ¶ 56 Warren County explained that Airoom was a "fact

- dependent challenge to a final judgment under section 2- 1401. The primary issue in Airoom depended largely on the specific fact s of that case, determining wheth er the defendant's actions and con duct constituted due diligence." Id. ¶ 40

. However, Warren County also recognized that "a section 2

- 1401 petition is not limited to the type of factual challenge involv ed in Airoom " but that " the petition may also raise a legal challenge to a f inal j udgment or order." Id. ¶ 41. ¶ 57 Our supreme court in Warren County explained that , " [i] n contrast to the fact -dependent judgment under section 2

- 1401 in Airoom ," our supreme court's decision in People v. Vincent , 226 Ill. 2d 1 (2007), was " representative o f a cas e involving a purely legal challenge to a final judgment under section 2 -1401." Warren County , 2015 IL 117783, ¶ 42. In Vincent , in which a criminal defendant 's section 2 -1401 petition alleged that his sentence of five consecutive 20

- year prison terms was void, our supreme court held that the applicable standard of review was de

novo . Vincent , 226 Ill. 2d at 15 -18. Moreover, Vincent did not require an analysis of the petitioner's due diligence as part of the applicable standard of review. See id. ¶ 58 In Warren County , however, our supreme court clarified that " Vincent must be viewed in its narrow con text of a section 2

- 1401 petition t hat r a ises a purely legal challenge to a judgment by alleging that it is void under subsection (f) of section 2

- 1401. [Citation.] When viewed in1-13-3017

22 this context, our decision to apply de novo review is consistent with established principles of appellate revie w for cases involving purely legal questions. [Citation.] Accordingly, to the
extent that Vincent prohibits equitable considerations in section 2

- 1401 proceeding, that part of our holding must be limited to a petition raising solely a legal issue." Warren County , 2015 IL 117783, ¶ 47. ¶ 59 Warren County thus recognized that "a section 2

- 1401 petition seeking to vacate a voi d judgment , a purely legal issue, does not need to establish a meritorious defense or satisfy due diligence requirements." Id. ¶ 48. However, Warren County reiterated the due diligence requirements for a fact -dependent petition: "[W]e hold th at when a section 2

- 1401 petition presents a fact

dependent challeng e to a fina l judgment o r order the standard s from Airoom govern that proceeding. Thus, the petitioner must set forth specific factual allegations supporting each of the following elements: (1) the e xistence of a meritorious defense; (2) due diligence in presenting this defense; and (3) due diligence in filing the section 2

- 1401 petition for relief. [Citation.] The quantum of proof necessary to sustain a section 2

- 1401 petition is a preponderance of the evidence, and the circuit court's ultimate decision on the petition is reviewed for an abuse of discretion." (Emphasis in original.) Id. ¶ 51.1-13-3017

23 Warren County thus makes clear that a lthough a section 2

- 1401 petition raisin g a purely legal issue does n ot need to satisfy due diligence requirements, a fact -dependent challe nge to a final judgment or order must be supported by specific factual allegations of due diligence. ¶ 60 In this case, we do not agree with Emma's argument t hat her amended section 2-1401
pe tition raises a purely legal error , and thus excuses her from due diligence requirements

. Rath er, it is apparent that her challenge to the underlying judgment confirming the fore closure sale is fact -dependent. Specifically, her section 2 -1401 petition as serts n umerous factual allegations of "predatory lending," "fraud in the inducement," and other misconduct by the bank to support her claim that she did not understand the November 2006 loan transact ion. As her petition presents fact

- dependent challenges , it was required to set forth allegations supporting the existence of a meritorious defense, due diligence in presenting the defense, and due diligence in
fili ng the section 2 -1401 petition

. Id. Further, the abuse of discretion standard applies to the circuit court's determination as to whether t hese elements were satisfied. Id. ¶ 61 As an alte rnative argument, Emma contends that, even if her section 2

- 1401 petition is of the type that requires due diligence, the lack of cooperation between her first and second defense attorneys should be deemed to " toll [] the due diligence period" and excuse her delay. Emma urges that, as a section 2

- 1401 petition "invokes the equitable powers of the trial court" to "prevent enforcement of a judgment when it would be unfair, unjust or inequitable," courts may "relax the due diligence standard where necessary to effect substantial justice ." Although Emma recognizes that a party is "generally bound by the negligence of her legal counsel," she urges that in her case the lack o f cooperation by her prior attorneys constitute s "mitigating circumst ances" that permit relax ation of the due diligence requirement. While we empathize with Emma's1-13-3017

24 situation as an elderly person, who relied upon others to direct, inform and act in her beh alf regarding the refinancing of her property and the subsequent legal issues and representation which arose, she still must meet the requirements which would give the trial court the basi s to grant her the relief she sought. ¶ 62 Emma is correct to the extent that equitable considerations are taken into account in deciding a section 2 -1401 petition. Id. ¶ 50 ( "[A] section 2

- 1401 petition that raises a fact

dependent challenge to a final judgment or order must be resolved by considering the particular facts, ci rcumstances, and equities of the underlying case." ) "T he trial court may also consider equitable consideration s to relax the applicable due diligence standards under the appropriate limited circumstances." Id. ¶ 51. Emma is als o correct in recognizing t hat "[a] lthough a party is generally bound by the negligence of his legal counsel, a court may refuse to impute such negligence to the client who seeks to vacate a default judgment when mitigating circumstances are present." (Emphasis added .) West Bend M utual Insurance Co. v. 3RC Mechanical & Contracting Services, LLC , 2014 IL App (1st) 123213, ¶ 14. ¶ 63 Nonethele ss, even if the trial court was permitted to relax the due diligence requirements , we cannot say that the trial court abused its discretion in decli ning to do so in this case. "A circuit court abuses its discretion when its ruling is arbitrary, fanciful, unreasonable, or where no reasonable person would take the view adopted by the trial court. " (Internal quotation marks omitted .) Bank of America, N.A. v. Adeyiga , 2014 IL App (1st) 131252, ¶ 116. ¶ 64 In this case , the trial court could reasonably conclude that, notwithstanding Emma's allegations of the failures of her first and second defense counsel, she nonetheless failed to establish due diligence. Notably, a section 2

- 1401 petition must satisfy due diligence in two1-13-3017

25 respects , both " in presenting the defense or claim to the trial cour t in the original action," as well as "due diligence in filing the section 2 -1401 petition." Charles Austin Ltd. v. A- 1 Food Services, Inc. , 2014 IL App (1st) 132384, ¶ 25

. ¶ 65 The trial court could reasonably have concluded that due diligence was lacking in either respect. First, the trial court could conclude that Emma was not diligent in initially presenting he r d efenses to enforcement of the loan, premised on her allegations of the bank's fraudulent conduct and predatory lending. The default judgment was entered in December 2009. Al though the parties dispute when Emma was first served with the foreclosure compla int, it is not d isputed that her first attorney appeared in the action in February 2010. However, i t was not until
Se ptember 2010 that Emma (thr ough her second attorney) filed a petition to vacate the December 2009 default judgment, in which she first all eged that the bank engaged in predatory lending and
f raud

. Moreover , section 2

- 1401 additionally requires "due diligence in filing the section 2 -1401 petition for relief." Warren County , 2015 IL 117783, ¶ 51. In this regard, Emma did not file her first section 2

- 1401 petition until December 2012, ov er a year after the September 2011 order confirming the February 2011 forec losure sale of the property. Furthermore , the section 2 -1401 petition' s allegations of predatory lending and fraud by the bank are largely duplicative of the allegations set forth over two years earlier in Emma's September 2010 motion to vacate the default judgment. 2

2 Emma emphasizes that her amended section 2

- 1401 petition, unlike her previous filings, relied upon the court

- appointed receiver’s report from August 2009

— whic h reflected that only $3850 in rent had been paid by the property's tenants from June to August 2009 — as factual support for her allegation that the bank’s employee falsely stated on her 2006 loan application that the property's apartments were fully occup ied by tenants paying $800 in monthly rent. However, we can hardly say that the trial court abused its discretion in declining to attach significance to that fact. The suggestion that the rents collected from the property in 2009 is1-13-3017

26 ¶ 66 Moreover, al though Emma's app ellate argument cites the lack of cooperation between her first two defense counsel as justi fying relaxation of t he due diligence requirements, the record reflects that her second counsel withdrew from the case in April 2011, and that Emma obtained subsequent counsel by August 2011. Importantly, her first and second counsel were no longer involv ed in the case after April 2011 . Therefore, their lack of cooperation with each other offers

n o explanation for why Emma waited until December 2012, over a year after the September 2011 order confirming the sheriff’s sale of the property , to file her orig inal section 2 -1401 petition . Given this record, we cannot say that the trial court abused its discretion in determi ning that Emma did not satisfy the due diligence requirements of section 2-1401. ¶ 67 Apart from her arguments challenging the dismissal of he r amended section 2 -1401 petition on the basis of " lack of diligence, " Emma's appeal separately argues that the court erred in subsequently denyin g her motion for rehearing, retrial or modification pursuant to section 2

- 1203 of the Code of Civil Procedure. That section provides that in non

- jury cases, a party may "within 30 days after the entry of the judgment *** file a motion for a rehearing, or a retrial, or modification of the judgment or to vacate the judgment or for other relief." 735 ILCS 5/2 -1203 (West 2012). The purpose of such a motion "is to bring to the court's attention newly discovered evidence, changes in the law, or errors in the court's previous application of existing law." (Internal quotation marks omitted.) Cable America, Inc. v. Pac e Electronics, Inc. , 396 Ill. App. 3d 15, 24 (2009). T he applicable standard of review on such a motion is the deferential abuse of
probative of the rents paid by tenants prior to the loan origination in 2006, over three years prior to the receiver's report, is tenuous at best. Moreover, Emma does not offer any particular reason why, despite being represented by counsel since early 2010, she did not refer ence the August 2009 receiver’s report until her amended section 2-1401 petition in April 2013.1-13-3017

27 discretion standard. Id. ("The decision to grant or deny a section 2

- 1203 motion is within the sound discretion of the circuit court."). ¶ 68 Notably, Emma does not contend that her section 2

- 1203 motion raised any "newly discovered evidence" or factual allegations that were not already contained in her amended section 2- 1401 petition or its supporting affidavit , and she does not claim that the section 2 -1203 motion was premised upon a change in appl icable law. Rather, her section 2- 1203 motion simply urged the trial court to reconside r its determination that she had failed to demonstrate due diligence. However, as we have expla ined above, we cannot say that the trial court abused its discretion in concluding that she failed to show due diligence. Moreover, as we have also found that Emma's section 2

- 1401 petition was independently barred by our holding in Prabhakaran , 2013 IL A pp ( 1st) 111224, and by the terms of section 2 -1401(e), we cannot conclude that the trial court erred in denying her motion to reconsider. ¶ 69 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County. ¶ 70 Affirmed.