ILLINOIS OFFICIAL REPORTS

Appellate Court

Bank of America, N.A. v. Luca, 2013 IL App (3d) 120601

Appellate Court

Caption

BANK OF AMERICA, N.A., Plaintiff-Appellee, v. SERGIU LUCA,

ELENA LUCA, and THE LAKELANDS ESTATE HOMEOWNERS

ASSOCIATION CORPORATION, Defendants-Appellants.

 District & No. Third District

Docket No. 3-12-0601

Rule 23 Order filed 

Motion to publish

allowed

Opinion filed

July 25, 2013

September 11, 2013

September 11, 2013

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

Defendants’ petition filed pursuant to section 2-1401 of the Code of Civil

Procedure, which challenged the order of possession and all of the other

orders entered in a foreclosure action filed against them, was properly

denied, notwithstanding their contentions that plaintiff’s notice of a grace

period was sent only to defendant and not his wife and that the 60-day

possession order granted by the trial court gave them additional time to

file their petition, since a technical defect in the grace-period notice does

not necessarilywarrant dismissal of a foreclosure action, especially in the

absence of any prejudice, as in defendants’ case, and in view of the fact

that defendants’ petition was filed within the 60 days granted by the trial

court, section 2-1203 of the Code applied, not section 2-1401, and

defendants’ petition was not supported by any allegations of prejudice.

Decision Under 

Review

Appeal from the Circuit Court of Will County, No. 09-CH-3940; the

Hon. Richard J. Siegel, Judge, presiding.
Judgment Affirmed.

Counsel on

Appeal

Stephen Richek, of Chicago, for appellants.

LouisJ. Manetti, Jr., and Margaret Manetti, both of Codilis & Associates,

P.C., of Burr Ridge, for appellee.

Panel JUSTICE CARTER delivered the judgment of the court, with opinion.

Presiding Justice Wright and Justice Lytton concurred in the judgment

and opinion.

OPINION

¶ 1 The plaintiff, Bank of America, N.A., filed a foreclosure action against the defendants,

Sergiu and Elena Luca. The plaintiff filed motions for entry of an order confirming judicial

sale and for entry of an order of possession. The circuit court entered the order of possession

for the plaintiff, but granted the defendants an extension of possession from 30 days to 60

days. The defendants filed a petition pursuant to section 2-1401 of the Code of Civil

Procedure (Code) (735 ILCS 5/2-1401 (West 2012)) challenging the order of possession and

all prior orders, which the circuit court denied. Afterthe court denied the defendants’ motion

to reconsider, the defendants appealed. On appeal, the defendants argue that the circuit court

erred when it denied their section 2-1401 petition. We affirm.

¶ 2 FACTS

¶ 3 This case originated in the circuit court on September 2, 2009, when the plaintiff filed

a foreclosure action against the defendants regarding a home in Plainfield, Illinois. The

complaint was preceded by a grace-period notice mailed by the plaintiff in April 2009 to the

home, which was addressed only to defendant Sergiu Luca.

¶ 4 In late 2009, the plaintiff mailed a notice to the defendants of a motion for default and

judgment for foreclosure. The defendants’ answer to the motion provided details on how the

home was damaged and why they ceased making payments, acknowledged they had

consulted with an attorney, and attached pertinent documents. Subsequently, in spring 2010,

the circuit court granted summary judgment for the plaintiff and entered an order for

foreclosure and sale. The judicial sale of the property occurred on February 8, 2012.

¶ 5 On March 14, 2012, a hearing was held on the plaintiff’s motions for entry of an order

confirming judicial sale and for entry of an order of possession. The circuit court granted

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both of the motions. However, in doing so, the court said to the defendants, “I am going to

give you 60 days possession, which is twice what the law requires, all right? And in that

time, maybe you can get a lawyer who will file the appropriate motions and see if we can

give you any kind of assistance on this.”

¶ 6 Additionally, the circuit court denied defendant Sergiu Luca’s motion to vacate the sale,

which was essentially premised on an argument that the plaintiff committed “fraud and

misrepresentation for misleading us and *** wrongful foreclosure on our home.” However,

because defendant Sergiu Luca presented no evidence to support those allegations, the court

denied the motion.

¶ 7 On May 11, 2012, the defendants filed a petition to vacate pursuant to section 2-1401 of

the Code (735 ILCS 5/2-1401 (West 2012)). In the petition, the defendants alleged that the

due diligence requirement for section 2-1401 petitions was not an issue because the court had

granted them 60 days “to come back to Court with any issues they are able to find.” The

defendants also alleged that the grace-period notice sent by the plaintiff was defective

because it was addressed only to defendant Sergiu Luca and not to defendant Elena Luca as

well.

¶ 8 On May 30, 2012, the circuit court held a hearing on the defendants’ section 2-1401

petition. The defendants’ attorneyargued that defendantElenaLuca neverreceived the graceperiod notice, and, as such, the foreclosure action could not commence. The circuit courtfirst

clarified that the 60-daypossession order wasintended to give the defendants additional time

to resolve the dispute with the plaintiff and that the order had nothing to do with the graceperiod notice. Second, the court ruled that the petition failed to meet the due diligence

requirement for section 2-1401 petitions. Accordingly, the court denied the petition.

¶ 9 On June 19, 2012, the defendants filed a motion to reconsider, which was denied after

a hearing on June 27, 2012. The defendants appealed.

¶ 10 ANALYSIS

¶ 11 On appeal, the defendants argue that the circuit court erred when it denied their section

2-1401 petition. Specifically, they argue that their section 2-1401 petition could not be

denied for a lack of due diligence because the trial court had granted them 60 days to return

to court with an appropriate motion. The defendants also argue that their petition should have

been granted because the grace-period notice was defective due to its failure to include

defendant Elena Luca as an addressee.

¶ 12 Our review of the record in this case reveals that despite the fact that the defendants

styled their motion as a section 2-1401 petition, it was actually a motion brought pursuant

to section 2-1203 of the Code (735 ILCS 5/2-1203 (West 2012)). The final judgment at issue

in this case was the circuit court’s ruling of March 14, 2012, that confirmed the judicial sale

and ordered the plaintiff possession. See JP Morgan Chase Bank v. Fankhauser, 383 Ill.

App. 3d 254, 260 (2008). When it entered that ruling, the court told the defendants, “I am

going to give you 60 days possession, which is twice what the law requires, all right? And

in that time, maybe you can get a lawyer who will file the appropriate motions and see if we

can give you any kind of assistance on this.” In doing so, the court extended the time within

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which the defendants could file a postjudgment motion from 30 days to 60 days. With that

extension, the motion filed by the defendants in this case on May 11, 2012–which was within

the 60-day window–could not have been a petition brought pursuant to section 2-1401

because that section provides a potential remedy only afterthe time for filing a postjudgment

motion has expired. See 735 ILCS 5/2-1401(a), (c) (West 2012); In re Haley D., 2011 IL

110886, ¶ 66.

¶ 13 In contrast to section 2-1401, section 2-1203 provides, “[i]n all cases tried without a jury,

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

court may allow within the 30 days or any extensions thereof, file a motion for a rehearing,

or a retrial, or modification of the judgment or to vacate the judgment or for other relief.”

(Emphasis added.) 735 ILCS 5/2-1203(a)(West 2012). Because the defendants’ motion was

filed within the 60-day postjudgment window given by the circuit court, section 2-1203

applies. See Geisler v. Everest National Insurance Co., 2012 IL App (1st) 103834, ¶ 50

(“[t]o determine whether a motion is a proper posttrial motion, we must review the substance

of the motion, and not just its title”).

¶ 14 When reviewing a motion brought pursuant to section 2-1203, “the appellate court must

examine not merely whether the court’s order *** represented an abuse of discretion but,

rather, whether regarding that order, substantial justice is being done between the parties.”

In re Marriage of Sutherland, 251 Ill. App. 3d 411, 414 (1993). We also note that we can

affirm the circuit court’s judgment based on any ground supported by the record. Dookeran

v. County of Cook, 2013 IL App (1st) 111095, ¶ 52.

¶ 15 In part, section 15-1502.5(c) of the Code requires that a grace-period notice inform the

mortgagor of certain matters and that it be mailed in an envelope that is “addressed to the

mortgagor at the common address of the residential real estate securing the mortgage.” 735

ILCS 5/15-1502.5(c) (West 2012). If this and other requirements are not met, a mortgagee

is prohibited from filing a foreclosure complaint. 735 ILCS 5/15-1502.5(b) (West 2012).

However, a technical defect in the notice sent to the mortgagor will not necessarily warrant

a dismissal of a foreclosure action. Aurora Loan Services, LLC v. Pajor, 2012 IL App (2d)

110899, ¶ 25.

¶ 16 In Pajor, the Second District held that, “[w]here, as here, the mortgagor has alleged only

a technical defect in the notice and has not alleged any resulting prejudice, a dismissal of the

foreclosure complaint to permit new notice ofthe grace period would be futile; we would not

read the section to require such a result unless its plain language compelled it.” Pajor, 2012

IL App (2d) 110899, ¶ 27. The Second District further held that nothing in section 15-1502.5

required a flawless grace-period notice before a foreclosure complaint could be filed. Pajor,

2012 IL App (2d) 110899, ¶ 28.

¶ 17 In this case, the only argument set forth by the defendants in their motion was that the

grace-period notice was defective due to its failure to include defendant Elena Luca as an

addressee. Not only did the defendants fail to allege any prejudice in their motion (see Pajor,

2012 IL App (2d) 110899, ¶ 27), the record belies any claim that defendant Elena Luca had

no knowledge of the grace-period claim. Defendant Sergiu Luca alleged in his written motion

to vacate on March 14, 2012, that the plaintiff was liable “for fraud and misrepresentation

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for misleading us and for wrongful foreclosure on our home.” (Emphasis added.) He also

stated that, “[t]he reason for all this because they lied us and promise us we are approved for

amodification.” These statements indicate that both defendants had received the grace-period

notice, and even indicate that there had been some dialogue between the defendants and the

plaintiff regarding loan modification. Under these circumstances, we find the defendants’

grace-period argument to be meritless. Accordingly, we hold that the circuit court did not err

when it denied the defendants’ postjudgment motion. See Pajor, 2012 IL App (2d) 110899,

¶ 28; Goldberg v. Astor Plaza Condominium Ass’n, 2012 IL App (1st) 110620, ¶ 73 (stating

that “[i]f the process that was utilized did not occur exactly as the statute dictates, the law

would not require a futile act to redo the process”).

¶ 18 CONCLUSION

¶ 19 For the foregoing reasons, the judgment of the circuit court of Will County is affirmed.

¶ 20 Affirmed.

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