Property’s fair market value, Defendants, who are both over seventy years of age, stand
to lose their life savings. Second, Defendants argue that confirmation of the sale would
be unjust because they reasonably relied on an attorney to represent them in the
foreclosure proceeding, when in fact the attorney failed to do so. The court will examine
both of Defendant's arguments.

1. Property’s Fair Market Value

Defendants purchased the Property approximately six years ago. It is located ina
developing area within the city of Chicago where real estate values have significantly
increased over recent years. Upon filing their motion, Defendants submitted an appraisal
estimating the Property's value at approximately $660,000. Both Intervenors and Plaintiff
objected to this figure and identified numerous flaws in Defendant's appraisal, including the
use of comparable properties located in different neighborhoods which contain different
floor plans‘ from that of the subject property. As a result, Defendants submitted a new
appraisal, estimating the property's value at approximately $530,000. After comparing both
appraisals, it is clear that Defendant's second appraisal, which estimates the Property's
value at approximately $530,000, is a more accurate reflection of the Property's fair market
value’. The comparable properties used in the second appraisal are located much closer

to the subject property, and the floor plans are similar. Thus, for purposes of this motion,

‘In using the term floor plans, the court is referring to the property's layout, number of
rooms, and total square footage.

?This second appraisal gives the adjusted sales price of five comparable properties.
These adjusted sales prices range from $485,000 to $570,000, with an average price of
$530,000. Noteworthy is the fact that only one of the comparable properties is located in the
same condominium development as the subject property. This property’s adjusted sales price
is $485,000.


assert that they hired an attorney in October 2003. The attorney was assisting them with
refinancing the Property, and Defendants forwarded all correspondence regarding the
Property to him. Defendants assert that they relied on their attorney to keep them informed
of the status of the foreclosure proceeding. On several occasions, Defendants questioned
their attorney about the status of the foreclosure proceeding, and each time he assured
them that he would take care of the matter. At no time during the pendency of this lawsuit,
however, did an attorney file an appearance on behalf of Defendants or otherwise appear
in the case.

Defendants also state that their attorney failed to notify them about the Judgment
of Foreclosure and the Property Sale. Believing that Firstar would communicate directly
with their attorney, Defendants did not think that they were obligated to contact Firstar
tegarding the matter. In fact, when Defendants contacted Firstar’s attorney about the
proceeding, Firstar’s attorney indicated that she could not speak directly to them after
learning that they were represented by counsel. Based on these facts, Defendants
contend that they were not aware of either the December 5, 2003 Judgment Order or the
March 9, 2004 foreclosure sale, and therefore confirmation of the sale under these
circumstances would be unjust.

Assuming Defendants statements are true, Defendants still have not provided a
sufficient basis for the court to disrupt the judicial sale. Defendants voluntarily chose this
particular attorney to represent them in this matter. The fact that he did a poor job, or in
this case nothing at all, does not change the fact that Judgment of Foreclosure was
properly entered. Nor does it change the fact that the sale was properly conducted and

the Intervenors acted appropriately. It is a well-settled general rule that there is no

7


Ct. 1997). The high bid received at a judicial sale is merely an irrevocable offer to
purchase the property, and acceptance of the offer takes place upon judicial confirmation.

Citicorp Savings v. First Chicago Trust Co., 645 N.E.2d 1038, 1046 (Ill. App. Ct. 1995).

Until the court confirms the judicial sale, there is not a true sale in the legal sense. Id.
The Illinois Mortgage Foreclosure Act provides that the trial court shall confirm a

foreclosure sale unless: (1) proper notice was not given; (2) the terms of the sale were

unconscionable; (3) the sale was conducted fraudulently; or (4) justice was otherwise not

done. 735 ILCS 5/15-1508(b); see also Commercial Credit Loans, Inc.. v. Espinoza, 689

N.E.2d 282, 286 (Ill. App. Ct. 1997). “A court is justified in disapproving a judicially
mandated foreclosure sale if unfairness is shown which is prejudicial to an interested
party.” Id. (citing Citicorp, 645 N.E.2d at 1045). The party opposing the sale bears the

burden of proving that grounds to disallow the sale exist. Cragin Federal Bank for Savings

v. American National Bank & Trust Co. of Chicago, 663 N.E.2d 1011 (Ill. App. 1994). Trial

courts have broad discretion in approving or disapproving sales made at their direction;
however, this discretion is not without its limits. In re Rosewell, 603 N.E2d 753, 756 (lil.
1992).
B. Application to This Case

Defendants concede that the first three elements of 735 ILCS 5/15-1508(b) are not
at issue. They acknowledge that notice was proper, the terms of the sale were not
unconscionable, and the sale was not conducted fraudulently. Defendant's sole basis for
disrupting the sale is that justice will not be served if the court confirms the sale. See
Def.’s Reply, at 2. Specifically, Defendants make two arguments in support of their
contention. First, they argue that because the sale price was significantly below the

3


the court will refer only to Defendant's second appraisal.

Atthe auction, Intervenors purchased the Property for $367,385.19. The purchase
price exceeded the amount of the debt in which Defendants owed Plaintiff by one dollar.
Assuming the Property is valued at $530,000, the purchase price was 69.3% of its fair
market value. Defendants offer no authority to suggest that absent any irregularities in the
sale process itself, a purchase price approximately 30% below market value is unjust.

Under Illinois law, there is no requirement that foreclosed property be sold for its
appraised value, which may or may not reflect the price that could be obtained upon sale
of the property. See World Savings, 740 N.E.2d at 474. It has long been recognized that
property does not bring its full value at forced sales, and that price depends upon many
circumstances from which the debtor must expect to suffer a loss. See Horney v. Hayes,
142 N.E.2d 94, 97 (Ill. 1957). In the absence of mistake, fraud, or violation of duty by the
officer conducting the sale, mere inadequacy of sales price is not a sufficient reason to
disturb a sale. See World Savings, 740 N.E.2d at 474. This rule is premised on a policy
of providing stability and finality to judicial sales. Id. The interest of finality instills
confidence in the process, encouraging parties to bid at judicial sales. See Corporate

Assets, Inc., v. Paloian, — F.3d — , 2004 U.S. App. LEXIS 9536, *11 (7th Cir. May 17,

2004).

In this case, Defendants concede that the sale was conducted properly. See Trans.
of March 26, 2004, at 8, 12. There are no allegations that Firstar, Special Commissioner
Vallone, or Intervenors did anything inappropriate. Absent such a claim, a sales price of

$367,385.19 was neither unjust nor unconscionable. See Lyons Savings and Loan

Association v. Gash Associates, 545 N.E.2d 412, 415 (Ill. App. Ct. 1989) (finding that a

5



constitutional or statutory right to effective assistance of counsel in civil cases. See Pokuta

v. Trans World Airlines, Inc., 191 F.3d 834, 840 (7th Cir. 1999). Moreover once a judgment

is entered, even an attorney's gross negligence does not entitle a party another opportunity

to litigate. See United States v. 7108 West Grand Avenue, Chicago, Illinois v. Flores, 15

F.3d 632, 633 (7th Cir. 1994) (stating that malpractice may be a good reason to recover
from the lawyer, but it not justify prolonging litigation against the original adversary). If
Defendant's attorney was indeed negligent, than Defendant's remedy is against that

attorney. See Tango Music, LLC v. Deadquick Music, Inc., 348 F.3d 244, 247 (7th Cir.

2003) (holding that the party whose attorney was negligent should not be allowed to shift
the burden of its agent’s neglect to the court and the other litigants); see also Stanciel v.
Gramley, 267 F.3d 575, 581 (7th Cir. 2001) (stating that an attorney's shortcomings do not
entitle his client to a new round of litigation); Bell v. Eastman Kodak Co., 214 F.3d 798, 802
(7th Cir. 2000) (holding that the exclusive remedy for attorney negligence in a civil case is

a separate action for legal malpractice); Pokuta, 191 F.3d at 840 (same). As such,

Defendants have not met their burden of establishing that the court should disrupt the sale
under 735 ILCS 5/15-1508(b){iv).
ill. CONCLUSION
For the foregoing reasons, Defendant's Motion to Disrupt Confirmation of the

Judicial Sale is denied.

IT IS SO ORDERED. ee ae

CHARLES R. NORGLE, Judge

United States District Court
DATED: Z,



Minute Order Foren (06/97)

United States District Court, Northern District of Illinois

Name of ine Jue Charles Norgle Sing ede Ot
CASE NUMBER 02 C 5424 DATE | 6/1/2004
CASE Firstar Bank NA vs. Goldman, et al.
TITLE
[In the followingbox (a) indicate the party filing the motion, e.g,, plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
Defendants’ Motion to Disrupt Confirmation of Sale
DOCKET ENTRY:
ql) a Filed motion of [ use listing in “Motion” box above.]
(2) Oo Brief in support of motion due
(3) i) Answer brief to motion due___. Reply to answer brief due.
(4) im Ruling/Hearing on set for at
(5) a Status hearing[held/continued to] [set for/re-set for]on__setfor___— at
6) QO Pretrial conference[held/continued to] [set for/re-set for]on___——ssetfor__———sat_
(7) im Trial[set for/re-set for] on at
(8) im ([Bench/Jury trial] [Hearing] held/continued to at
(9) Q This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

COFRCP4(m) ClLocal Rule 41.1 OOFRCP41(a)(1) OO FRCP41(a)(2).

qo) ff [Other docket entry] Before the court is Defendant's Motion to Disrupt Confirmation of the
Sale [18-1] brought pursuant to 735 ILCS 5/15-1508(b)(iv). For the reasons stated on the
attached Opinion and Order, Defendant’s motion [18-1] is DENIED. Plaintiffs Motion to
Confirm the Sale [19-1] is GRANTED. (See Attached.)

: awe

a 1) a {For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required. q
umber of notices

dUN 2 ~ 2004

date docketed

Notices mailed by judge's staff.

Notified counsel by telephone,

Docketing to mail notices.
Mail AQ 450 form.

Copy to judge/magistrate judge.

courtroom
deputy’s
initials

«ni, Date/time received in

central, Clerk's Office
TP val

mailing deputy initials



sales price of 68.9% of the subject property's appraised value is not grossly inadequate);

see also Illini Federal Savings and Loan Association, 516 N.E.2d 609, 613 (Ill. App. Ct.

1987) (holding that absent fraud or mistake, a sales price of 71.4% of the subject
property’s appraised value is not unjust or unconscionable).

In addition, the fact that Defendants stand to lose a significant amount of the equity
in their home, which they claim was their only asset, does not by itself make the sale
unjust. Firstar brought this foreclosure proceeding on July 31, 2002, and Defendants were
served with process shortly thereafter. Prior to this date, Defendants knew that they were
not meeting their obligations under the terms of the original mortgage agreement. They
also knew that they did not meet their obligations under the terms of the forbearance
agreement. On December 5, 2003, the court entered a Judgment of Foreclosure and Sale
in the amount of $364,725.90, with the right of redemption extending to March 6, 2004.
Defendants acknowledge that they were aware of the foreclosure suit prior to March 6,
2004. See Affidavit of M. Goldman {| O. Throughout this entire period, they made no
attempt to sell the Property and were unable to timely refinance. Thus, knowing there was
a significant amount of equity in the home, Defendants had almost two years to remedy
the situation. The fact that they did not do so, or that their efforts failed, does not make the
sale unjust. See In Re Rosewell, 603 N.E.2d at 756 (indicating that absent a showing of
a strong public interest, a court will not disrupt a judicial sale simply because of one party
was negligent).

2. Reliance on Attorney

Defendants also argue that confirmation of the sale would be unjust because they

were misled by their attorney, whom they hired to represent them in the matter. They

6


UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ape
FIRSTAR BANK NA, as Successor in DOCKETED
Interest to an Ohio Bank, JUN 9 ~ 2004
Plaintiff,
Vv.

JU ,
Case No. 02 C 5424 Nee 2004
M. MICHAEL GOLDMAN, a/k/a MERWYN Judge Charles R. Norgle
GOLDMAN, DORRIS PRIZANT, THE
RIVER PARK AT DIVERSEY CONDOMINIUM
ASSOCIATION, UNKNOWN OWNERS and

NON-RECORD CLAIMANTS,

RO ee a an ee ee eee

Defendants.
OPINION AND ORDER
CHARLES R. NORGLE, District Judge.

Defendants move pursuant to 735 ILCS 5/15-1508(b)(iv) to disrupt confirmation of
the sale of real estate located at 2208 West Diversey, Unit D, Chicago, Illinois. For the
following reasons, Defendant's motion is denied.

|. BACKGROUND

For approximately six years, Defendants M. Michael Goldman and Dorris Prizant
(collectively “Defendants”) owned and occupied the property commonly known as 2208
West Diversey, Unit D, Chicago, Illinois (“Property”). During this period, the Property was
subject to a mortgage. On July 31, 2002, Plaintiff Firstar Bank NA (“Firstar”) commenced
this action against Defendants seeking foreclosure of the mortgage. In October 2002,
Defendants and Firstar entered into a forbearance agreement in which Firstar agreed to
dismiss the foreclosure action provided that Defendants make monthly mortgage payments

to Firstar. in November 2002, Defendants ceased making mortgage payments as required

3\


by the forbearance agreement, allowing Firstar to pursue the foreclosure proceedings.

On May 2, 2002, the court reinstated Firstar’s action against Defendants. On May
7, 2003, Defendants were personally served with process. Defendants did not answer the
Complaint or otherwise plead, nor was an attorney appearance ever filed on their behalf.
Defendants never personally appeared in the courtroom. On December 5, 2003, the court
entered an Order of Default against Defendants and entered a Judgment of Foreclosure
and Sale in the amount of $364,725.90. The judgment provided that the statutory
redemption period expire on March 6, 2004. Defendants failed to redeem the Property.

On March 9, 2004, court-appointed Special Commissioner Nancy Vallone conducted
a public sale of the Property. At the auction, Firstar made an opening bid of $367,294.18,
representing the entire amount of the debt Defendants owed to Firstar. Intervenors Mary
O'Neil, Colette O'Neil, and Kevin Eickmann (collectively “Intervenors”) successfully bid
$367,295.19 for the Property. After tendering full payment, Intervenors received a
Certificate of Sale. Defendants remained in possession without making payments.

On March 19, 2004, Firstar filed a Motion to Confirm the Sale, which was to be
heard on March 26, 2004. On March 23, 2004, Defendants filed this motion styled “Petition
to Disrupt Confirmation of Sale,” brought pursuant to 735 ILCS 5/15-1508(b)(iv).
Defendant's motion is fully briefed and now before the court.

I. DISCUSSION
A. Review Under the Illinois Mortgage Foreclosure Act
Under Illinois law, a judicial foreclosure sale is not complete until it has been

approved by the trial court. Fleet Mortgage Corp. v. Deale, 678 N.E.2d 282, 285 (Ill. App.