## I L L I N O I S 

## O F F I C I A L 

## R E P O R T S
Appellate Court

Bank of Am erica, N.A. v. L uca , 2013 IL App (3d) 120601

Appellate Court Caption BA NK OF AMERI CA, N.A., Plaintiff-Appellee

, v. SERGI U L UC A

, EL ENA L UCA, and TH E L A KEL ANDS ESTATE HOMEOWNERS ASSOCI ATI ON CORPORATI ON, De fenda nts-Appellants.

District & N o. Third District
Docke t No. 3-12-0601

Rule 23 Order

filed Motion to publ ish
allowed Opinion filed J uly 25, 2013

September 11, 2013 September 11, 2013

Held ( Note : Thi s syl lab us

con st it u t e s no par t of the opi nio n of the cour t but has bee n pre

par ed by t h e Repo rt er of
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

. ) Def endants’ petition filed pursuant to section 2-1401 of the Code of Civil Procedur e, which challeng ed the order of possession and all of the other order s enter ed in a fore closure action filed ag ainst them, was pr o p er ly denied, notwithstanding their contentions that plaintiff’s notice of a g rac e period was sent only to defe ndant and not his wife and that the 60-day possession order g rante d by the t rial court g ave them additional time to file their petition, since a technica l defe ct in the g rac e-pe riod notice does

not nece ssarily war

rant dismiss al of a fore closure action, espec ially in the absenc e of a

ny prejudice , as in defe ndants’ case , and in view of the fa ct that defe ndants’ petition was filed within the 60 day s g rante d by the trial court, section 2-1203 o f t h e Code applied, not section 2-1401, and defe ndants’ petition was not supported by any alleg ations of pre

judice.

Dec ision Under
Review A ppeal from the Circuit Court of Wil l County

, No. 09-CH- 3 9 4 0 ; t h e Hon. Richard J. Si eg el, J udg e, pre siding.J udg ment Affir med.

Counsel on Appea l Stephen Richek, of Chica g o, for a ppellants.

L ouis J

. Manetti, J r., and Marg are t Manetti, both of Codili s & Associates, P.C., of Burr

Ridge , for a

ppellee.

Panel J USTI CE CARTER delivered the judg ment of the c ourt, with opinion. Presiding J usti ce Wright and J ustice L y tton concur

red in the judgme nt and opinion.

OP INION

¶ 1 The plaintiff, Ba nk of Americ a, N.A., filed a fore closure action ag ainst the defe ndants, Serg iu and Elena L uca. The plaintiff filed motions for entry of an order confirming judicial sale and for entry of an order of possession. The circ uit court enter ed the order of possession for the pl ai n t i f

f, but g rante d the defendants an extension of poss ession from 30 day s to 60 day s. The defe ndants filed a petition pursuant to section 2-1401 o f t h e C o d e o f Civil Procedur e (Code) (735 I L CS 5/2-1401 (West 2012)) challeng ing the order of possession and all prior order s, which the circ uit court denied. After the court denied the defe ndants’ motion

to rec onsider, the defe ndants appea led. On appea l, the defe ndants arg ue that the circ uit court

err ed whe n it denied their sec tion 2-1401 petition. W e af firm.

¶ 2 FACTS ¶ 3 This case orig ina t ed in the circuit court on September 2, 2009, when the plaintiff filed

a fore closure action ag ainst the defe ndants reg arding a home in Plainfield, I lli n o i s

. T h e complaint was prec eded by a g rac e-pe riod notice mailed by the plaintiff in April 2009 to the home, which wa s addre ssed only to defe ndant Serg iu L uca. ¶ 4 I n late 2009, the pl aintiff mailed a noti ce to the defendants of a mot ion for default and judgme nt for fore closure. The defe ndants’ answe r to the motion provided details on how the home was damag ed an d wh y t h ey cea sed making pay ments, acknow ledg ed they had consulted with an attorney
, and attache d pertinent documents. Subsequently

, in spring 2010, the circ uit court g rante d summary judgme nt for the plaintiff an d en t er e d an order for fore closure a

nd sale. The judicial sale of the proper ty occur red on F ebrua

ry 8, 2012. ¶ 5 On Marc h 14, 2012, a hea ring was he ld on the plaintiff’s motions for entry of an order confir m i n g j u d i ci a l sale and for entry of an order of possession. The circ uit court g rante d

-2-both of the motions. Howe ver, in doing so, the cour t said to the defe ndants, “I am g oing to
g ive y ou 60 day s poss es sion, which is twice what the law require s, all rig ht? And in that time, may be y ou can g et a lawy er who will file the appropr iate motions an d s ee i f we can g ive y ou any

kind of assistance on this.” ¶ 6 Additionally

, the circ uit court denied defe ndant Serg iu L uca’ s motion to vacate the sale, wh i c h was essentially premised on an arg ument that the plaintiff committed “fr aud an d misrepre sentation for misleading us and *** wrong ful fore closure on our home.” Howeve r, beca use defe ndant Serg iu L uca prese nted no evidenc e to support those alleg ations, the court denied the motion. ¶ 7 On May 11, 2012, the defe ndants filed a petition to vacate pursuant to section 2-1401 of the Code (735 I L CS 5/2-1401 (West 2012) ). I n the petition, the defe ndants alleg ed that the due diligenc e require ment for section 2-1401 petitions was not an issue beca use the court had

g rante d them 6 0 day s “to come back to Court with any issues they are able to find.” The defe ndants also alleg ed that the g rac e-pe riod notice sent by the plaintiff was defe ctive beca use it was addre ssed only to defe ndant Serg iu L uca and not to defe ndant Elena L uca as well. ¶ 8 On May 30, 2012, the circ uit court held a hear ing on the de fe n d an t s ’ section 2-1401 petition. The defe ndants’ attorney arg ued t h a t d e f e n d a n t E le n a L u ca never rec eived the g rac eperiod notice, and, as such, the fore closure action could not commence

. The circ uit court first clar ified that the 60-day possession order was intended to g ive the defe ndants additional time

to resolve the dispute with the plaintiff and that the order had nothing to do with the g rac eperiod notice. Second, the court ruled that the p et i t i o n fa i l ed to meet the due diligenc e require ment for se ction 2-1401 petitions. Accor dingly , the cour t denied the pe tition. ¶ 9 On J une 19, 2012, the defendants filed a mot ion to rec onsid e r, which was denied afte r a hea ring on J une 27, 2012. The defe ndants appe aled.

¶ 10 ANAL YSI S ¶ 11 On appea l, the defe ndants arg ue that the circ uit c ourt err ed when it denied their section 2-1401 petition. Specifica lly

, they arg ue that their section 2-1401 petition c o u l d not be denied for a lack of due diligenc e beca use the trial court had g rante d them 60 day s to return
to court with an appropr iate motion. The defe ndants also arg ue that their petition should have been g rante d beca

use the g rac e-pe riod notice was d ef ec t ive due to its failure to include defe ndant Elena

L uca a s an addr essee

. ¶ 12 Our rev i ew o f t he rec ord in this case reve als that despite the fac t that the defe ndants sty led their m otion as a section 2-1401 petition, it was actu al l y a mot ion broug ht pursuant
to section 2-1203 of the Code (735 I L CS 5/2-1203 (West 2012)). The final judgme nt at issue in this case was the circ uit court’s ruling of Marc h 14, 2012, that confirme d the judicial sale and order ed the plaintiff possession. See JP Mo r gan Chase Bank v. Fankhauser

, 383 I ll. App. 3d 254, 260 (2008). W hen it enter ed that ruling

, th e co u rt t o l d the defendants, “I am g oing to g ive y ou 60 day s possession, which is twice w hat the law r equire s, all rig ht? And in that time, may

be y ou can g et a lawy er who will file the appropr iate motions and see if we

can g ive y ou any kind of assistance on this.” I n doing so, the court extended the time within

-3-which the de fenda nts could file a postjudgment motion fr om 30 day s to 60 day s. Wi th that extension, the motion filed by the defe ndants in this case on May 11, 2012–which was within the 6 0 -day window–could not have been a petition broug ht pursuant to section 2-1401 beca use that section provides a potential reme dy only after the time for filing a postjudgment

mo t i o n h as expired. See 735 I L CS 5/2-1401(a)

, (c) (West 2012); In re Haley D.

, 2011 I L 110886, ¶ 66. ¶ 13 I n contra st to section 2-1401, section 2-1203 provides, “[i] n all case s tried without a jury

, any party may , withi n 30 days after the entry of the judgment or withi n any further time the

court may allow withi n the 30 days or any exte nsions thereof

, file a motion for a rehe aring

, or a retria l, or modification of the judgme nt or to vacate the judgme nt or fo r o ther relief .” (Emphasis added.) 735 I L CS 5/2-1203(a) (West 2012). Be cause the defe ndants’ motion was filed within the 60-day postjudgment window g iven by the circ uit court, section 2-1203 applies. See Geisler v. E ve r e st National Insurance Co.

, 2012 I L App (1st) 103834, ¶ 50 (“[t] o deter

mine whether a motion is a proper posttrial motion, we must revie w the substance of the motion, and not just its title”). ¶ 14 When revie wing a motion broug ht pursuant to section 2-1203, “the appellate court must examine n o t m e rely whether the court’s order *** repr esente d an abuse of discretion but, rathe r, whether reg arding that order , substantial justi ce is be ing done betwee n the parties.”
In re Marriage of Sutherland

, 251 I ll. App. 3d 411, 414 (1993). W e al s o n o t e t h at we can aff irm the circ uit court’s judgme nt based on any g round supported by the rec ord. Dooke ran v. County of Cook , 2013 I L App (1st) 111095, ¶ 52. ¶ 15 I n part, section 15-1502.5(c ) of the Code require s that a g rac e-pe riod notice inform the mortg ag or of cer

tain matters and that it be mailed in an envelope that is “a d d resse d to the mortg ag or at the common addre ss of the residential rea l estate secur ing the mortg ag e.” 735
I L CS 5/15-1502.5(c) (West 2012). I f this and other r equire ments are not met, a mortgag ee is p ro hibited from filing a fore closure complaint. 735 I L CS 5/15-1502.5(b) (West 2012).
Howeve r, a technica l defe ct in the notice sent to the mortg ag or will not nece ssarily war rant

a dismiss al of a fore closure action. Aurora Loan Servic es, LLC v. Pajor

, 2012 I L App (2d) 110899, ¶ 25. ¶ 16 I n Pajor

, the Second District held that, “[w]here, as here

, the mortg ag or has alleg ed only

a technica l defe ct in the notice and has not alleg ed any resulting prejudice

, a dismiss al of the fore closure complaint to permit new notice of the g rac e period would be futile; we would not

rea d the section to require such a result unless its plain lang uag e compelled it.” Pajor

, 2012
I L App (2d) 110899, ¶ 27. The Second District further held that nothing in section 15-1502.5 require d a flawle ss g rac e-pe riod notice befor e a fore closure complaint could be filed. Pajor

, 2012 I L App (2d) 110899, ¶ 28. ¶ 17 I n this case , the onl y arg ument set forth by the de fe n d an t s i n their m otion was that the

g rac e-pe riod notice was defe ctive due to its fa i l u re t o i n cl ude defe ndant Elena L uca as an addre ssee. Not only did the defe ndants fail to alleg e any prejudice in their motion (see Pajor

, 2012 I L App (2d) 110899, ¶ 27), the rec ord belies any claim that defe ndant Elena L uca had

no knowledg e of the g rac e-pe riod claim. Def endant Serg iu L uca a ll e g e d in his written motion

to vacate on Marc h 14, 2012, that the pl aintiff was liable “for fra ud and mi srepr esenta tion

-4-for misleading us and for wrong ful fore closure on our home.” (Emphasis added.) He also

stated that, “[t] he rea son for all this beca use they lied us and promise us we are approve d for

a mo d i fica tion.” These statements indicate that both defe ndants h a d r e c e iv e d th e g r a c e

- p e r io d notice, and even indicate that there had been some dialog ue betwee n the defe ndants and the plaintiff reg arding l oan modification. Under these circ umstances, we find the defe ndants’

g rac e-pe riod arg ument to be meritless. Acc ording ly

, we hold that the circ uit court did not err when it denied the defe ndants’ postjudgment motion. See Pajor

, 2012 I L App (2d) 110899, ¶ 28; Goldberg v. Astor Plaza Condominium Ass’n

, 2012 I L App (1st) 110620, ¶ 73 (stating that “[i] f t he process t hat was utiliz ed did not occur exactly as t h e s t at u t e dictates, the law would not require a futile a ct to redo the proce ss”).

¶ 18 CONCL USI ON ¶ 19 For the fore g oing rea sons, the judgme nt of the circ uit court of Wil l County is aff irmed.

¶ 20 Affir

med.

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