Illinois Official Reports 

Appellate Court

CitiMortgage, Inc. v. Adams, 2015 IL App (5th) 130470

Appellate Court 

Caption

CITIMORTGAGE, INC., Plaintiff-Appellee, v. LEONARD W. 

ADAMS and KIMBERLY A. ADAMS, Defendants-Appellants.

District & No. Fifth District

Docket No. 5-13-0470

Filed

Rehearing denied

July 20, 2015

August 20, 2015

Decision Under 

Review

Appeal from the Circuit Court of St. Clair County, No. 11-CH-1035; 

the Hon. Stephen P. McGlynn, Judge, presiding.

Judgment Reversed and remanded with directions.

Counsel on

Appeal

Anthony R. Garavalia, of Flynn Guymon & Garavalia, of Belleville, 

for appellants.

Adam D. Grant, of Dickinson Wright, of Detroit, Michigan, for 

appellee.

Panel JUSTICE GOLDENHERSH delivered the judgment of the court, with 

opinion.

Presiding Justice Cates and Justice Chapman concurred in the 

judgment and opinion.
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 OPINION 

¶ 1 This is an appeal involving a residential mortgage foreclosure action. Plaintiff, 

CitiMortgage, Inc., alleges defendants, Leonard Adams and Kimberly Adams, failed to make 

monthly installment payments for principal, taxes, and interest pursuant to a mortgage. As a 

result of defendants’ alleged failure to make payments, plaintiff filed a complaint to foreclose 

mortgage in the trial court. The trial court confirmed the foreclosure sale and later denied 

defendants’ two separate motions to reconsider.

¶ 2 Defendants now appeal the trial court’s order in favor of plaintiff and against defendants 

approving the foreclosure sale, and appeal the trial court’s order denying defendants’ motions 

to reconsider. Defendants allege the trial court abused its discretion when it confirmed the 

foreclosure sale. 

¶ 3 Prior to the foreclosure sale, defendants assert they applied for assistance under the Home 

Affordable Modification Program (HAMP), a component of the Making Home Affordable 

Program established by the United States Department of the Treasury pursuant to the 

Emergency Economic Stabilization Act of 2008, as amended by the American Recovery and 

Reinvestment Act of 2009, and, therefore, the trial court should have set the sale aside. 735 

ILCS 5/15-1508(d-5) (West 2012). Defendants also allege the subject real estate was sold in 

material violation of HAMP, and plaintiff should have been required to comply with the 

HAMP requirements. 735 ILCS 5/15-1508(d-5) (West 2012). 

¶ 4 Plaintiff maintains this appeal is the first time in this case defendants have sought relief 

under section 15-1508(d-5) of the Illinois Mortgage Foreclosure Law (735 ILCS 

5/15-1508(d-5) (West 2012)) and, therefore, they did not properly preserve the issue for 

appeal. Alternatively, plaintiff alleges defendants did not satisfy the requirements of section 

15-1508(d-5) because they failed to bring a timely motion in the trial court and failed to prove 

the statute’s required elements by a preponderance of the evidence. Therefore, plaintiff 

contends, the trial court did not abuse its discretion when it confirmed the foreclosure sale and 

its decision should be affirmed. 

¶ 5 Plaintiff and defendants disagree about whether defendants applied for assistance under 

HAMP prior to the foreclosure sale. The trial court was not informed that defendants had 

applied for assistance under HAMP prior to confirmation of the foreclosure sale, and should 

have been made aware of this information before determining whether to confirm the 

foreclosure sale. We reverse and remand for further proceedings. 

¶ 6 BACKGROUND 

¶ 7 On October 10, 2011, plaintiff filed a complaint to foreclose mortgage under the Illinois 

Mortgage Foreclosure Law alleging inter alia that defendants failed to pay monthly 

installments for principal, taxes, interest, and insurance pursuant to a mortgage dated March 

18, 2005, on defendants’ single-family residence and the note secured by that residence. 735 

ILCS 5/15-1101 (West 2012). On March 23, 2012, defendants filed their answer to plaintiff’s 

complaint to foreclose mortgage. Plaintiff subsequently filed a motion for summary judgment 

on May 3, 2012. 735 ILCS 5/2-1005 (West 2012). 

¶ 8 On May 24, 2012, the circuit court granted plaintiff’s motion for summary judgment and 

entered a judgment of foreclosure and sale. That same date, plaintiff filed its motion for order 
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approving report of sale and distribution. On August 13, 2012, plaintiff filed a notice indicating 

a foreclosure sale would take place on August 28, 2012. On October 4, 2012, the court entered 

an order approving report of sale and distribution, confirming sale and order of possession. 

¶ 9 On November 2, 2012, defendants filed their first motion to reconsider and for other relief 

asking the court to set aside the foreclosure sale, alleging defendants had previously applied for 

assistance under HAMP and that defendants were waiting for a decision to be made regarding 

their application. Regarding defendants’ application for assistance, plaintiff informed 

defendants on two separate dates, July 7, 2012, and July 9, 2012, that it would take 

approximately 30 days for plaintiff to review defendants’ application that was filed in May 

2012. On August 29, 2012, plaintiff informed defendants that their May 2012 application 

could no longer be used because the dates in the application were expired, and requested 

defendants file a new application. This August 29, 2012, request concerning defendants’ 

application was delivered by plaintiff in response to defendant Leonard Adams’ request for an 

update on the status of defendants’ application made on August 27, 2012.

¶ 10 The court took defendants’ motion to reconsider under advisement after argument on the 

matter. On November 26, 2012, an order was entered that stated the following: 

“Plaintiff failed to properly and timely respond to Defendants[’] request to participate 

in a foreclosure prevention program ***. *** Plaintiff to complete review of 

Defendants[’] request to participate in foreclosure prevention program and properly 

notify Defendants of its determination.”

¶ 11 On January 3, 2013, the court entered an order continuing the case for status conference on 

February 7, 2013. On February 7, 2013, the court entered an order stating there had been no 

response to the loan modification and the matter was continued for status on May 16, 2013. 

¶ 12 On March 4, 2013, plaintiff filed a copy of a letter of denial with the circuit clerk dated 

February 25, 2013, which informed defendants their application was denied because of its 

“loan on behalf of Fannie Mae whom [sic] has not given us the contractual authority to modify 

your loan under this program.” The letter directed defendants to contact “Shelly Craig” if 

defendants had any questions. Alternatively, the letter directed defendants to “contact me at 

CitiMortgage Inc. Homeownership Support Team.” The letter also informed defendants they 

may qualify for other options. 

¶ 13 On May 16, 2013, the circuit court entered an order that reset the matter for confirmation of 

sale. On May 30, 2013, the court entered an order approving report of sale and distribution and 

confirming sale and order of possession. Defendants then filed a second motion to reconsider 

and for other relief on June 27, 2013. Plaintiff filed its response to defendants’ motion to 

reconsider and for other relief on July 17, 2013, and the court denied defendants’ second 

motion to reconsider and for other relief on August 26, 2013. Defendants timely appealed. 

¶ 14 ANALYSIS 

¶ 15 On appeal, defendants allege the trial court erred by confirming the foreclosure sale despite 

HAMP violations and misapplied Illinois and federal law in denying their motion to 

reconsider. At issue in this case is defendants’ application for assistance under HAMP. 

Plaintiff and defendants disagree about whether defendants applied for assistance under 

HAMP and dispute whether plaintiff and defendants properly followed the guidelines of that 

program. 
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¶ 16 With that said, the trial court was not informed of this disposition of the application before 

confirming the foreclosure sale. The trial court should have been informed of the matter 

concerning defendants’ application for assistance under HAMP before it confirmed the 

foreclosure sale. It would then have been appropriate for the trial court to determine whether 

plaintiff satisfied the requirements of HAMP. 735 ILCS 5/15-1508(d-5) (West 2012). 

¶ 17 A trial court’s order confirming a foreclosure sale is reviewed under the Illinois Mortgage 

Foreclosure Law. 735 ILCS 5/15-1101 (West 2012). The relevant portions of the Illinois 

Mortgage Foreclosure Law provide the following: 

“The court that entered the judgment shall set aside a sale held pursuant to Section 

15-1507, upon motion of the mortgagor at any time prior to the confirmation of the 

sale, if the mortgagor proves by a preponderance of the evidence that (i) the mortgagor 

has applied for assistance under the Making Home Affordable Program established by 

the United States Department of the Treasury pursuant to the Emergency Economic 

Stabilization Act of 2008, as amended by the American Recovery and Reinvestment 

Act of 2009, and (ii) the mortgaged real estate was sold in material violation of the 

program’s requirements for proceeding to a judicial sale.” 735 ILCS 5/15-1508(d-5) 

(West 2012). 

¶ 18 The provisions of section 15-1508 have been construed as giving circuit courts broad 

discretion in approving or disapproving judicial sales. Citicorp Savings of Illinois v. First 

Chicago Trust Co. of Illinois, 269 Ill. App. 3d 293, 300, 645 N.E.2d 1038, 1045 (1995). A 

court’s decision to confirm or reject a judicial sale under the statute will not be disturbed absent 

an abuse of discretion. Household Bank, FSB v. Lewis, 229 Ill. 2d 173, 178, 890 N.E.2d 934, 

937 (2008). 

¶ 19 The Illinois Mortgage Foreclosure Law specifically provides that a sale shall be set aside if 

a mortgagor can prove he or she applied for assistance under HAMP by a preponderance of the 

evidence. 735 ILCS 5/15-1508(d-5) (West 2012). By the plain language of the Illinois 

Mortgage Foreclosure Law, the foreclosure sale in this case should have been set aside if it 

could be shown defendants applied for assistance under HAMP prior to the foreclosure sale. 

¶ 20 In the record, there is no indication the trial court was aware of defendants’ application for 

assistance prior to entering an order for confirmation of sale on October 4, 2012. As defendants 

point out concerning the order dated November 26, 2012, the trial court acknowledged 

defendants had applied for assistance under HAMP prior to confirmation of the foreclosure 

sale and plaintiff failed to properly and timely respond to defendants’ request to participate in a 

foreclosure prevention program. The trial court should have been made aware of this 

significant information before acting on a decision concerning confirmation of the foreclosure 

sale. Because the trial court was not informed of this disposition concerning the foreclosure 

sale, we reverse and remand this case so that the trial court can be presented with all relevant 

information. 

¶ 21 Plaintiff and defendants also raise several other issues on appeal. We will briefly address 

those issues which should be resolved by the trial court on remand. 

¶ 22 Defendants allege the trial court erred in denying their motions to reconsider and for other 

relief by confirming the foreclosure sale because the subject real estate was sold in material 

violation of HAMP and the trial court misapplied Illinois and federal law. Defendants contend 

the sale should be set aside and plaintiff should be required to comply with HAMP’s 

requirements. 
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¶ 23 Defendants allege plaintiff violated HAMP’s guidelines by failing to show it timely 

responded to defendants’ application. As to its order dated November 26, 2012, the trial court 

indicated that defendants applied for assistance under HAMP. That order stated the following: 

“The court finds the sale was conducted in a commercially reasonable way. However, 

Plaintiff failed to properly and timely respond to Defendants[’] request to participate in 

a foreclosure prevention program as confirmed by Plaintiff’s July 2012 correspondence 

to Defendants.”

Based upon this determination, defendants allege they should have been timely and properly 

notified of plaintiff’s decision regarding their application prior to moving forward with 

confirmation of the foreclosure sale. 

¶ 24 Fannie Mae’s guidelines corresponding to the HAMP directives published in the Fannie 

Mae Single Family 2012 Servicing Guide dated March 14, 2012, provide: 

“The servicer must acknowledge to the borrower, either verbally or in writing, its 

receipt of a Borrower Response Package within 3 business days of receipt. The 

acknowledgement must include the following: 

• the servicer’s evaluation process and response time frame; 

• an explanation of the foreclosure process, including that the foreclosure process 

may continue during the evaluation and that foreclosure referral will not occur if the 

servicer is reviewing a complete Borrower Response Package or has extended an offer 

and the borrower’s response time for acceptance has not expired;

• for borrowers who submit a complete Borrower Response Package less than 37 

days prior to a scheduled foreclosure sale, an explanation of the servicer’s plans for 

evaluating the borrower for a foreclosure prevention alternative and suspending the 

foreclosure sale, if appropriate; and 

• appropriate disclosures required by applicable federal, state, or local law.”

¶ 25 The guidelines also require that the servicer review and evaluate an application and then 

communicate a decision within 5 days after making the decision, but no later than 30 days after 

receipt of the application. During the evaluation process, the servicer is required to work with 

the borrower to bring the mortgage loan current, to develop a workout plan, or to create another 

foreclosure prevention alternative after a mortgage loan is referred to foreclosure. 

¶ 26 In this case, defendants filed an application for assistance under HAMP in May 2012. 

Plaintiff notified defendants pursuant to two letters dated July 7, 2012, and July 9, 2012, 

indicating it would take plaintiff approximately 30 days to review their application. Plaintiff 

did not inform defendants until August 29, 2012, that their application could no longer be used 

and requested defendants to file a new application. The trial court should consider whether the 

July 7, 2012, July 9, 2012, and August 29, 2012, letters from plaintiff to defendants constitute 

violations of the HAMP guidelines. 

¶ 27 Also, there is no indication in this record that plaintiff attempted to work with defendants to 

bring the mortgage loan current, develop a workout plan, or create another foreclosure 

prevention alternative despite defendants’ attempts to contact plaintiff and cure the default in 

payments under the mortgage. Rather, plaintiff took no action on defendants’ first application 

for assistance and required defendants to reapply because their first application allegedly could 

not be used due to expired dates. After defendants applied for assistance a second time, 

plaintiff denied their application without any attempt to cure the default as required by the 
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HAMP guidelines, and were vague with regard to whom defendants should contact with 

questions and what alternative options defendants may qualify for. The trial court should 

consider whether this action and inaction on the part of plaintiff constitutes material violations 

of HAMP. 

¶ 28 We now turn to plaintiff’s arguments which the trial court should consider on remand. 

Plaintiff contends the trial court properly confirmed the foreclosure sale in its favor under the 

Illinois Mortgage Foreclosure Law and correctly denied defendants’ motions for 

reconsideration. Plaintiff suggests several reasons for why confirmation of the foreclosure sale 

was proper. 

¶ 29 First, plaintiff alleges defendants waived their right to seek relief on appeal because they 

did not raise the issue of whether they were entitled to relief under section 15-1508(d-5) in the 

trial court. Parks v. Kownacki, 193 Ill. 2d 164, 180, 737 N.E.2d 287, 296 (2000). Plaintiff 

asserts this court should affirm the trial court because defendants failed to preserve the issue. 

¶ 30 While plaintiff properly indicates that questions not presented in the trial court cannot be 

argued for the first time on appeal, the record suggests defendants are not seeking relief for the 

first time on appeal. 

¶ 31 Defendants indicate they filed two separate motions to reconsider and for other relief on 

November 2, 2012, and June 27, 2013. Each of defendants’ motions to reconsider states the 

following: “That it is the Defendants’ position that the Plaintiff’s acts and omissions in this 

instance are contrary to the policy supporting the Making Home Affordable Program ***.” 

Each of the motions to reconsider also requested the trial court to “[f]ind that the Plaintiff’s 

actions constitute a material violation of the Making Home Affordable Program.” This 

language was taken from section 15-1508(d-5), which permits the trial court to set aside a 

foreclosure sale when the subject real estate is sold in material violation of HAMP. 

Accordingly, plaintiff’s assertion that defendants did not seek relief pursuant to section 

15-1508(d-5) before bringing this appeal is without merit. 

¶ 32 Second, plaintiff alleges defendants are precluded from seeking relief under section 

15-1508(d-5) because they failed to file a motion prior to confirmation of the sale. Plaintiff 

relies on section 15-1508(d-5), which provides: “The court that entered the judgment shall set 

aside a sale held pursuant to Section 15-1507, upon motion of the mortgagor at any time prior 

to the confirmation of the sale ***.” 735 ILCS 5/15-1508(d-5) (West 2012). Plaintiff alleges 

defendants’ appeal must be dismissed because defendants did not file a motion requesting 

relief under section 15-1508(d-5) as required by statute. 

¶ 33 As the record reveals, the trial court confirmed the foreclosure sale on October 4, 2012. In 

defendants’ first motion to reconsider filed on November 2, 2012, defendants indicate they 

applied for assistance under HAMP prior to confirmation of the sale, specifically receiving two 

letters from plaintiff dated July 7, 2012, and July 9, 2012, informing defendants it would take 

plaintiff approximately 30 days to review their application for assistance. Plaintiff’s argument 

that defendants did not seek relief prior to confirmation of the foreclosure sale is not consistent 

with the record. 

¶ 34 Lastly, plaintiff alleges defendants failed to establish they applied for assistance by a 

preponderance of the evidence as required under section 15-1508(d-5). Whether defendants 

can prove by a preponderance of the evidence that they applied for assistance under HAMP is 

a question for the trial court. 
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¶ 35 Section 15-1508(d-5) of the Illinois Mortgage Foreclosure Law provides: “The court that 

entered the judgment shall set aside a sale *** if the mortgagor proves by a preponderance of 

the evidence that (i) the mortgagor has applied for assistance under the Making Home 

Affordable Program ***, and (ii) the mortgaged real estate was sold in material violation of the 

program’s requirements for proceeding to a judicial sale.” 735 ILCS 5/15-1508(d-5) (West 

2012). A defendant must prove both (1) the application for assistance and (2) material 

violation. 

¶ 36 In the instant case, defendants assert the trial court determined in its November 26, 2012, 

order that defendants applied for assistance within the meaning of section 15-1508(d-5). We 

agree. The November 26, 2012, order indicates defendants applied for assistance under 

HAMP. 

¶ 37 The trial court’s November 26, 2012, order in response to defendants’ motion to reconsider 

and for other relief stated: 

“The court finds the sale was conducted in a commercially reasonable way. However, 

Plaintiff failed to properly and timely respond to Defendants[’] request to participate in 

a foreclosure prevention program as confirmed by Plaintiff’s July 2012 correspondence 

to Defendants. Surrender of possession is stayed until further order of this court. 

Plaintiff to complete review of Defendants[’] request to participate in foreclosure 

prevention program and properly notify Defendants of its determination.”

¶ 38 The language of this order clearly establishes that the trial court found defendants applied 

for assistance under HAMP. It ordered plaintiff to complete review of defendants’ application 

to participate in a foreclosure prevention program and properly notify defendants of its 

determination. Accordingly, whether defendants applied for assistance within the meaning of 

section 15-1508(d-5) has been determined. 

¶ 39 The record here shows defendants did submit the requisite documentation necessary to 

apply for assistance. The trial court, as noted above, made a conclusive finding that defendants 

applied for assistance. It accordingly ordered plaintiff to complete review of defendants’ 

request to participate in a foreclosure prevention program and notify defendants of its 

determination. 

¶ 40 CONCLUSION 

¶ 41 Accordingly, we reverse and remand with directions to consider and resolve the issues 

noted above, including but not limited to the disposition of the HAMP application and a 

determination whether plaintiff’s action and inaction constituted a material violation of 

HAMP. 

¶ 42 For the reasons stated herein, the judgment of the circuit court of St. Clair County is 

reversed and the matter is remanded with directions. 

¶ 43 Reversed and remanded with directions.