2021 IL App (1st) 200146-U

No. 1-20-0146 

Order filed December 17, 2021 

Sixth Division

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the 

limited circumstances allowed under Rule 23(e)(1).

______________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

______________________________________________________________________________ 

BAC HOME LOANS SERVICING, LP FKA 

COUNTRYWIDE HOME LOANS SERVICING LP, 

Plaintiff, 

 v. 

CORREY A. SHORT; SHERRY L. SHORT; PNC 

BANK, N.A., SUCCESSOR BY MERGER TO 

NATIONAL CITY BANK; UNKNOWN OWNERS AND 

NON RECORD CLAIMAINTS, 

Defendants,

(U.S. Bank Trust National Association, as Trustee of 

Bungalow Series F Trust, Plaintiff-Appellee v. Correy A. 

Short, Defendant-Appellant). 

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Appeal from the

Circuit Court of

Cook County. 

No. 10 CH 32110 

Honorable 

Gerald Cleary, 

Judge, Presiding. 

JUSTICE SHARON ODEN JOHNSON delivered the judgment of the court.

Justices Sheldon Harris and Mary Mikva concurred in the judgment. 

ORDER
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¶ 1 Held: We affirm the circuit court’s order grant of U.S. Bank’s motion to confirm the 

judicial sale of the subject property and denial of defendant’s motion to set aside 

and vacate the sale. 

¶ 2 Defendant Correy Short1 appeals from an order of the circuit court confirming the judicial 

sale of his single-family home and denying his motion to vacate and set aside the judicial sale in 

this mortgage foreclosure action brought by plaintiff U.S. Bank Trust National Association, as 

Trustee of Bungalow Series F Trust (U.S. Bank).2 On appeal, defendant contends that when he 

filed his Chapter 13 bankruptcy petition on February 8, 2019, at 11:29 a.m., the filing triggered 

the automatic stay provisions of section 362(a) of the Bankruptcy Code (11 U.S.C. § 362(a)), 

thereby staying the judicial sale of his home scheduled for that same day. As a result, defendant 

contends that: (1) the circuit court abused its discretion by approving the judicial sale that was 

unjust under section 1508(b) of the Illinois Mortgage Foreclosure Act (Mortgage Foreclosure Act) 

(735 ILCS 5/15-1508(b) (West 2018)) and (2) the circuit court erred by denying his request for a 

continuance to hold an evidentiary hearing before confirming the sale of his house. For the reasons 

that follow, we affirm.

¶ 3 BACKGROUND

¶ 4 The following background facts and procedural history are taken from the common law 

record and the parties’ appellate briefs. While the record on appeal does not contain a transcript of 

the proceedings below, a certified statement of facts approved by the circuit court is included in 

the appellate record. 

1 Correy Short is the only defendant who is a party to this appeal.

2 This action was initially filed by BAC Home Loans Servicing, LP FKA Countrywide Home 

Loans Servicing LP (BAC) on July 27, 2010; during the course of the litigation, defendant’s mortgage 

and note were assigned multiple times, with U.S. Bank being substituted into this case as plaintiff by 

court order on August 7, 2017. 
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¶ 5 On March 14, 2007, defendant and his wife Sherryl executed a promissory note as 

borrowers in the principal amount of $209,750 in favor of Countrywide Home Loans 

(Countrywide) as the lender. The note was secured by a mortgage, also dated March 14, 2007, 

which encumbered real property known as 4002 West 192nd Place, Country Club Hills, Illinois. 

Countrywide subsequently became BAC Home Loans Services, LP (BAC). On July 27, 2010, 

BAC filed a complaint to foreclose the mortgage against defendant, Sherryl, PNC Bank and 

unknown owners and non-record claimants, alleging that defendant and his wife defaulted on the 

mortgage loan. Defendant and his wife filed their pro se appearance and verified answer on August 

2, 2010. 

¶ 6 During the course of litigation, defendant’s mortgage and note were assigned multiple 

times to other lenders who were substituted into the case as plaintiff. U.S. Bank was substituted as 

plaintiff due to such an assignment by court order on August 7, 2017. The circuit court entered a 

judgment of foreclosure and sale on January 2, 2018, which provided that if a redemption was not 

made, the property would be sold at a public sale by the Judicial Sales Corporation (JSC). 

Additionally, summary judgment was entered in favor of U.S. Bank and against defendant. Further 

proceedings ensued, including multiple stays of the judicial foreclosure sale. On February 8, 2019, 

the subject property was sold to U.S. Bank for a credit bid of $175,000. On July 5, 2019, U.S. 

Bank filed a motion to confirm the sale, and defendant was granted leave to file a response to the

motion by August 19, 2019.

¶ 7 On August 26, 2019, defendant filed a motion to set aside the judgment of foreclosure and 

to vacate the sale. In the motion, defendant argued that he filed a bankruptcy petition prior to the 

occurrence of the foreclosure sale, and the automatic bankruptcy stay provision should have 
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prevented the selling office from holding the sale. Defendant attached an alleged visitor pass dated 

February 8, 2019, at 11:59 p.m. to the judicial sale office; a notice of bankruptcy case filing 

indication that his bankruptcy petition was filed on February 8, 2019, at 11:29 a.m.; and notice of 

automatic stay containing his signature. 

¶ 8 In response to defendant’s motion, U.S. Bank filed its reply in support of its motion to 

confirm the sale arguing that since the sale occurred prior to defendant’s filing of his bankruptcy 

petition, the sale was not held in violation of an automatic bankruptcy stay. Attached to U.S. 

Bank’s filing was an electronic mail message dated February 8, 2019, at 11:08 a.m. reflecting that 

the sale occurred at 10:41 a.m. on February 8, 2019.

¶ 9 The circuit court granted both parties the opportunity to provide further evidence prior to 

a hearing on both motions. U.S. Bank was granted leave to provide evidence, if any, that the sale 

occurred prior to 11:29 a.m. on February 8, 2019, and defendant was granted leave to provide 

evidence, if any, that the sale occurred after 11:29 a.m. on February 8, 2019. U.S. Bank 

subsequently filed the notarized affidavit of Pamela Murphy-Boylan (Murphy-Boylan), the 

President and CEO of JSC. Murphy-Boylan averred that the sale occurred on February 8, 2019, at 

10:41:29 a.m. at the JSC office located at One South Wacker Drive, 24th Floor in Chicago, Illinois, 

and that Wendy Morales was the selling officer. On October 7, 2019, defendant was granted an 

extension to issue a subpoena for a witness to appear on October 21, 2019, to testify as to when 

the sale occurred. On October 18, 2019, defendant filed a copy of the summons and subpoena for 

Devin Jones, JSC’s “front desk secretary/clerk” to appear at the October 21, 2019, hearing and a 

copy of an affidavit he prepared for Jones to sign. On the face of the affidavit, the following was 

written: “need lawyer permission to sign 10/18/2019 2:48.” 
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¶ 10 A hearing was held on U.S. Bank’s motion to confirm the judicial sale and defendant’s 

motion to set aside the foreclosure and vacate the sale on October 21, 2019. In his brief, defendant 

contends that the hearing was not an evidentiary hearing as previously contemplated in an earlier 

order of the circuit court because Jones did not appear, and U.S. Bank did not present any 

witnesses. In contrast, U.S. Bank contends that the October 21, 2019, hearing was an evidentiary 

hearing. Both parties reiterated the arguments raised in support of their respective motions. 

Defendant argued that he went to the JSC office after he filed his bankruptcy petition on February 

8, 2019, and spoke with Jones, who used her work computer to look up information on the relevant 

auction and informed defendant that a bid had not yet been entered and therefore, the house had 

not been sold. Based on this information, defendant argued that if the house was sold, the sale must 

have occurred after his conversation with Jones. Defendant requested a continuance to produce 

Jones as a witness or gather alternative evidence. The circuit court denied defendant’s request. At 

the close of argument, the circuit court confirmed the judicial foreclosure sale, finding that 

defendant’s statements regarding a conversation with Jones were inadmissible hearsay and that he 

failed to produce sufficient admissible evidence to prove that he filed for bankruptcy before the 

foreclosure sale.

¶ 11 On November 18, 2019, defendant filed a series of post-judgment motions, including a 

timely motion to reconsider the order confirming the sale of the house, arguing that the circuit 

court misapplied the law. Defendant attached an email he received from Murphy-Boylan on 

October 18, 2019, and stated in relevant part: 

“* * *After review of the affidavit and thorough review of our file, we cannot 

execute the affidavit as my staff does not have a specific recollection of speaking with you 
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on February 8, 2019, nor does my staff have specific recollection that you delivered the 

bankruptcy documents to our office on February 8, 2019. I can confirm that the sale held 

on February 8, 2019[,] for the property at 4002 W 192n [sic] Place, Country Club Hills 

was at 10:41:29, and the property was sold to the plaintiff for a credit bid of $175,000.00. 

* * *” 

¶ 12 On December 4, 2019, the circuit court struck defendant’s post-judgment motions because 

he failed to appear in court. On December 19, 2019, defendant filed a motion to stay possession, 

which was denied. The circuit court also vacated its order of December 4, 2019, but denied 

defendant’s motion for reconsideration, emergency motion and temporary restraining order to stay 

eviction order pending motion to reconsider and motion for extension of time. The following day, 

the circuit court entered an order continuing defendant’s second emergency motion to stay 

possession until December 31, 2019. On December 31, 2019, the circuit court denied defendant’s 

motion for lack of jurisdiction based on a filed notice of appeal. However, the record indicates that 

defendant filed his timely notice of appeal on January 21, 2020.3

¶ 13 ANALYSIS 

¶ 14 On appeal, defendant contends that: (1) the circuit court abused its discretion by approving 

the judicial sale that was unjust under section 1508(b) of the Mortgage Foreclosure Act (735 ILCS 

5/15-1508(b) (West 2018)) and (2) the circuit court erred by denying his request for a continuance 

to hold an evidentiary hearing before confirming the sale of his house. 

3 Based on defendant’s motion to reconsider being denied by the circuit court on December 19, 

2019, his notice of appeal was due in 30 days, or January 19, 2020. However, that date fell on a Sunday, 

and we take judicial notice that the following day, January 20, 2020, was Martin Luther King, Jr. Day, a 

court holiday. Accordingly, defendant’s notice of appeal was due on January 21, 2020. 
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¶ 15 The standard of review for a motion to confirm a judicial sale and a motion to vacate the 

judicial sale pursuant to section 15/1508(b) of the Mortgage Foreclosure Act are within the circuit 

court’s discretion to grant or deny and will not be disturbed absent an abuse of that discretion. 

CitiMortgage Inc. v. Lewis, 2014 IL App (1st) 131272, ¶ 31. (where the plaintiff has filed a motion 

to confirm sale and the defendant thereafter files a motion to set aside the sale, the standard of 

review for both motions is an abuse of discretion). The circuit court abused its discretion if it 

committed an error of law or where no reasonable person would take the view adopted by the 

court. Id. The party opposing the foreclosure sale bears the burden of proving that sufficient 

grounds exist to disprove the sale. Id.

¶ 16 Defendant first contends that the circuit court erred in confirming the foreclosure sale 

because it was unjust as it occurred after he filed for bankruptcy. He maintains that he submitted 

sufficient allegations and evidence that he filed for bankruptcy before the foreclosure sale which 

warranted an evidentiary hearing. Defendant further asserts that the October 21, 2019, hearing was 

not an evidentiary hearing as previously contemplated in an earlier order of the circuit court 

because Jones did not appear, and U.S. Bank did not present any witnesses.

¶ 17 Section 15-1508(b) of the Mortgage Foreclosure Act provides that the court must conduct 

a hearing on confirmation of the judicial sale and shall enter an order confirming a judicial sale 

unless it finds that: (1) required notice in accordance with section 15-1507(c) was not given, (2) 

the terms of the sale were unconscionable, (3) the sale was conducted fraudulently, or (4) justice 

was not otherwise done. 735 ILCS 5/15-1508(b)(i-iv) (West 2018). U.S. Bank does not dispute 

that a foreclosure sale held after defendant filed for bankruptcy would violate section 15-1508(b). 
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See Concrete Products, Inc. v. Centex Homes, 308 Ill. App. 3d 957, 959 (1999) (judicial acts done 

in violation of an automatic stay are void ab initio). 

¶ 18 We find that the trial court’s confirmation of the foreclosure was not an abuse of discretion. 

The record reflects that defendant filed his motion to set aside the foreclosure and vacate the 

judicial sale with an attachment proving that he filed his bankruptcy petition on February 8, 2019, 

at 11:29 a.m. The circuit court subsequently granted a continuance to allow him time to produce 

any evidence or witness that could prove his allegation that the foreclosure sale occurred after he 

filed for bankruptcy on February 8, 2019, at 11:29 a.m. and also for U.S. Bank to produce evidence 

or a witness that could prove that the foreclosure sale occurred prior to defendant’s bankruptcy 

filing. Defendant appeared at the next scheduled court hearing on October 21, 2019, and recounted 

his alleged conversation with Jones at JSC’s office on February 29, 2019, that the sale had not yet 

occurred when he arrived at 11:59 a.m. However, Jones did not sign the affidavit defendant 

prepared for her to sign and did not appear to testify on defendant’s behalf. The circuit court found 

defendant’s testimony constituted inadmissible hearsay. As additional evidence in support of the 

motion to confirm the sale, U.S. Bank submitted Murphy-Boylan’s affidavit, which averred that 

the foreclosure sale was completed on February 8, 2019, at 10:41:29 a.m. Further, attached to 

defendant’s motion to reconsider was an email from Murphy-Boylan which indicated that Jones 

could not sign the affidavit as prepared because she had no independent recollection of speaking 

with him or that he delivered bankruptcy documents to the JSC office on February 8, 2019, and 

further confirmed that the foreclosure sale was completed at 10:41:29 a.m. on that date. Based on 

the arguments and additional evidence presented by the parties on October 21, 2019, the circuit 
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court confirmed the sale, essentially finding that defendant failed to meet his burden of proving 

that the foreclosure sale occurred prior to his bankruptcy filing. 

¶ 19 The record supports the circuit court’s finding that defendant failed to establish that the 

foreclosure sale occurred prior to his bankruptcy filing. The only “new” evidence defendant 

presented was his own testimony regarding the alleged conversation with Jones that the sale had 

not yet occurred by 11:59 a.m. The circuit court correctly found that such testimony constituted 

inadmissible hearsay, as it was an out-of-court statement offered to prove the truth of the matter 

asserted in court, that was generally inadmissible unless it fell within a hearsay exception. Holland 

v. Schwan’s Home Service, Inc., 2013 IL App (5th) 110560, ¶ 183. Defendant did not argue that 

his conversation with Jones fell within a hearsay exception; thus, it was inadmissible, leaving 

defendant with no evidence to support his argument. As such, we cannot say that the trial court’s 

decision to confirm the foreclosure sale was an abuse of discretion.

¶ 20 Defendant also contends that the circuit court erred in denying his request for a continuance 

and that he presented sufficient allegations and evidence to warrant an evidentiary hearing. We 

disagree.

¶ 21 Litigants do not have an absolute right to a continuance. ICD Publications, Inc. v. Gittlitz, 

2014 IL App (1st) 133277, ¶ 88. Instead, whether to grant a motion for a continuance is within the 

circuit court’s sound discretion, and we will not disturb its decision unless it constitutes an abuse 

of discretion. Id.

¶ 22 This court has long held that motions may be decided on the basis of affidavits alone. In re 

Marriage of Varco, 158 Ill. App. 3d 578, 580 (1987). An exception to that general rule has been 

found in cases where motions to vacate and supporting affidavits make allegations sufficient to 
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create factual issues. Id. An evidentiary hearing after each foreclosure sale is not required, but 

rather may be conducted where the defendant presents evidence that the sale did not comply with 

section 15-1508(b), meaning that a defendant should already have evidence indicating that the sale 

was unjust. See Resolution Trust Corp. v. Holtzman, 248 Ill. App. 3d 105, 115 (1993). 

¶ 23 Here, as noted above, defendant had already been granted a continuance to secure evidence 

to support his allegations. However, at the October 21, 2019, hearing, he was unable to produce 

any new evidence except for the alleged conversation he had with Jones, which was discounted as 

inadmissible hearsay. At the December 19, 2019, hearing, defendant presented a copy of an email 

he received from Murphy-Boylan, which did not support his allegation but instead provided more 

support for U.S. Bank’s claims that the foreclosure sale occurred prior to his bankruptcy filing. 

Indeed, the circuit court questioned the fruitfulness of granting defendant another continuance 

because Jones would presumably be unable to testify or aver to the conversation or its contents 

which served as the crux of defendant’s argument that the foreclosure sale occurred after he filed 

for bankruptcy. Defendant has not indicated what further evidence could possibly be available to 

support his claims. Based on the record before us, we cannot say that the circuit court’s decision 

not to grant defendant’s request for a continuance was an abuse of discretion. 

¶ 24 CONCLUSION

¶ 25 For the foregoing reasons, we affirm the orders of the circuit court of Cook County 

confirming the foreclosure sale and denying defendant’s request for a continuance. 

¶ 26 Affirmed.