## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Citibank, N.A. v. Monroe , 2013 IL App (2d) 120593

Appellate Court Caption CI TI BA NK, N.A., as Trustee for Americ an Home Mortg ag e Investment Trust 2004-3, Mortg ag e Ba cked Notes, Series 20 0 4 -3
, Assigne e of Americ an Home Mortg ag e Acc eptanc e, Inc., Plaintiff-Appellee
, v. MARK W. MONROE and DESI REE MON RO E
, D e f e n d a n ts

- A p p e ll a n ts (The United States of America, The State of I llino i s, Tang lewood Hill s Homeowne r ’ s A s s o c ia

ti o n , N o nr e c o r d Cl a im a

nts , Unk nown Tena

nts, and Unknown Owne rs, Def

endants).

District & N o. Second District Docke t No. 2-12-0593

Filed Fe bruar y 21, 2013

Held (Note : Thi s syl lab us

con st it ute s n o par t of the opi nio n of the cour t but has bee n pre

par ed by the Repo rt er o

f D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Section 15-1508(b) of the Code of Civil Procedur e, the provision of the mortg ag e fore closure statute dealing with the confirmation of fore closure sales, does not bar g iving notice of a motion to confirm a sale befor e the sale has occur

red
, so long as the actua l motion for confirmation is prese nted to the cour

t after the sale.

Dec ision Under Review Appea l from the C i rc u i t Court of Kane County
, No. 10-CH-2747; the Hon. L eonar d Wojt ecki, Judge , presiding

.

J udg ment Affir med.Counsel on

Appea l Mark W. Monroe, of L aw Offic es of Mark W. Monroe L L C, of Wheaton, for a ppellants.

Ira T. Neve l, of L aw Offi ces of Ira T. Neve l, L L C, of Chicag o, for appellee

.

Panel J USTI CE Z ENOF F de livered the judgme nt of the cour t, with opinion.
J ustices McL are n and Schostok c oncurr ed in the judgme nt a nd opinion.

OP INION

¶ 1 Mark W. Monroe and Desire e Monroe, the defe ndants in a fo re cl o s u re action as the mortg ag or and the s pou s e o f t h e mortg ag or, appeal from an order confirming the sheriff ’s sale of the fore closed proper ty

. They argue that “the trial court err ed by proce eding with the confirmation of the Sheriff’ s Sale and enter ing the *** Orde r confirming the Sheriff’ s Sale when the notice to confirm the Sheriff’ s Sale was made befor e the sal e. ” T h ey asser t that “[sectio n] 15-1508(b) [of the Code of Civil Procedur e (Code) (735 I L CS 5/15-1508(b) (West 2010)) (conce rning confirmation of a s h er iff’s sale)] states t hat t he mot ion and noti ce ***

‘ shall not be made prior to sale.’ ” (Emphasis in orig inal.) They misstate the section’s require ment for notice . Section 15-1508(b) states, “Upon motion and noticein acc ordanc e with court rules applicable to moti o n s gen er al ly
, which motion shall not be made prior to sale, the court shall conduct a hear ing to confirm the sale.” (Emphase s added.) 735 I L CS 5/15-1508(b) (West 2010). The Monroes do not e x plain why a mandate that the leg islature specific ally wrote to apply only to the motion should also apply to the notice. The section is clea r in mandating only that the motion come afte r the sale. We there fore conclude that the trial court did not er

r and w e af

firm the conf

irmation of the sale

.

¶ 2 I . BA CKGROUND ¶ 3 On J une 11, 2010, plaintiff, Citi bank, N.A

. , fi l ed a fo re closure suit rela ting to the p roperty at 2360 Kane L ane in Ba tavia. I t named as defe ndants the mortg ag or, M ar k W

. Monroe, his wife, Desire e Monroe, tax-li en h o l d er s the United States and the State of I llinois
, the Tang lewood Hills Homeowne rs’ Association, nonrec ord claimants, unknown tenants, and unknown owner s. The Monroes answe red, disputing the acc urac y of cer tain specific s, asser

ting a bankruptc y discharg e as a defe nse ag ainst any in personam judgme nt, and dema nding pr oof of a ll alleg ations. (Mark is an attorney , and he, or his office , filed an appea ranc e for the two.) The United States also filed a n answe r. ¶ 4 Plaintiff filed an amend ed co m p l ai n t o n De ce m b er 8, 2010. The Monroes a g ain

-2-answe red, and plaintiff moved for summary judgme nt for fore closure. The court g rante d

summary judgme nt on J anuar

y 18, 2012. ¶ 5 The sheriff

’s sale was schedule d for April 19, 2012. On Marc h 26, 2012, plaintiff mailed all defe ndants a “Notice of Motion” that stated that, on April 30, 2012, plaintiff would appea r and “move this honorable court to enter an o rd er approving the April 19, 2012 sale and to g rant an order for possession.” Plaintiff filed this notice on Marc h 27, 2012. The notice did not have an acc ompanying written motion. On April 30, 2012, the Monroes filed their “Objec tions to Notice of Confirmation of Sale.” They noted that, under section 15-1508(b) of the Code, the motion to confirm a judicial sale “shall not be made prior to sale.” 735 I L CS 5/15-1508(b) ( West 2010). They stated: “In addition to their [ sic ] being no motion seeking confirma tion of the Sheriff’ s Sale, the Marc h 26, 2012 Conformation [ sic ] of Sheriff’s Sale N otice made before the April 19, 2012 Sheriff’ s Sale is direc tly contra ry to 735 I L CS 5/15-1508(b), and there fore
, is fata lly defe ctive.” ( Emphasis in origina l.) The Monroes did not explain why the mandate of section 15-1508(b) (“[the] motion shall not be made prior to sale” ) also should apply to the notice of motion. They did not object to any aspec t of the notice other than its coming befor e the sale, althoug h they did, as quoted above, note that plaintiff did not include the motion with the notice. ¶ 6 Also on April 30, 2012, plaintiff filed a motion for confirmation of the sale. This had no associate d service list; the sheriff ’s repor t of the sale was an attachme nt to the motion. The court confirme d the sale that day and the Monroes filed a notice of appea l on May 23, 2012. The Monroes did not include a transcript of the hear ing in the rec ord on appea l a nd did not include a substitute for suc h a tra nscript.

¶ 7 I I . ANALYSI S ¶ 8 On appea l, the Monroes make the same argument that they made in their “Objec tions to Noti ce of Confirmation of Sale.” That is, they asser t that section 15-1508(b) has a “cle ar, unambig uous and mandatory require ment” that “the notice and motion to confirm ‘shall not be made prior to’ the Sheriff’ s Sale.” See 735 I L CS 5/15-1508(b) (West 2010). They argue that the issue is one of statutory interpre tation, so that our revie w is de novo

. ¶ 9 Plaint i ff re s p o n ds that the M onroes “sug g est *** [t hat] the s cheduling of t he Sheriff ’s Sale Confirmation equate s to a motion prese nted to the Court.” I t argues that a “movant does not ‘move’ the Court until the movant prese nts the motion and asks for the Court to g rant it when it i s p h y s i ca l l y handed up and a reque st is made.” I t argues that the issue is one of whether the court should have confirme d the sale and that revie w should thus be for an abuse of discre tion. ¶ 10 Be cause our analy sis need g o no further than the proper interpre tation of sect i o n 1 5

- 1508(b), our revie w is de novo

. See Gaffney v. Board of Trustees of the Orland Fire Protection District
, 2012 I L 110012, ¶ 50 (“The construction of a statute prese nts a question

o f l aw * * * s u bject to de novo revie w.”)

. We conclude that the s ection does not bar giving notice of a

confirmation moti on befor e the sa le.

-3-¶ 11 The argument made by the Monroes is patently incorre ct. As we p r e v io u sly noted, sec tion

15-1508(b) states, “Upon motion and notice in acc ordanc e wit h court rules applicable to motions g ener ally
, which mot ion s h al l n o t be made prior to sale, the court shall conduct a hear ing to confirm t he sale.” 735 I L CS 5/15-1508(b) (West 2010). Had the leg islature intended the r equire ment “shall not be made prior to sale” to apply to the not ice as well as the motion, it could have said, “Upon motion and notice in acc ordanc e with court rules applicable to motions g ener ally
, which shall not be made prior to sale, the court shall conduct

a hear ing to confirm the sale.” Instead, the l egi s l ature place d the word “motion” in the pare nthetical clause
, there by producing a longe r and more complicated sentenc e. Howeve r, by making the more complicated phrasing choice
, the leg islature clea rly show ed its intent that the “shall not be made prior to sa le” clause should a pply to the motion only

. 735 I L CS 5/15-1508(b) ( West 2010). ¶ 12 The Monroes’ arg ument is also inco rre ct for essentially the reason t hat pl aintiff states. “[A] ‘motion’ is *** ‘an application to the court for a ruling or an order in a pending case .’ ” Blazyk v. Daman Express, Inc.
, 406 I ll. App. 3d 203, 206 (2010) (quoting In re Marriage of W olff
, 3 55 I ll. App. 3d 403, 407 (2005))

. Plaintiff “made ” its motion for confirma tion on April 30, 2012, the day it filed the written motion and made its reque st to the court; this was, of cour se, af

ter the sa le. ¶ 13 The Monroes’ sole challenge t o t h e co nfirmation’s validity is based on the claim that section 15-15 0 8 (b ) require d the confirmation motion’s notice to postdate the sale. Their appea l thus fails with that claim.

¶ 14 I I I . CONCL USI ON ¶ 15 For

the re asons stated, we aff irm the confir

mation of the sher iff’s sa le.

¶ 16 Affir

med.

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