## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Citi Mortgage, Inc. v. San Ju an , 2012 IL App (1st) 110626

Appellate Court Caption CI TI MORTGAGE, I NC., Plaint i ff

-Appe llant, v. VIVIAN S AN J UAN; F I V E T H O U S A N D E A S T E N D A V E N U E B U I L D I N G CORPORATI ON; CAMERON L

. BA SDEN; CI TI BA NK, N.A., Under Security Agree ment Recorde d Dec ember 21, 2006 as Document Number 0635555073; NONRECORD CLAI MANTS; AN D UNKNO WN OWNERS, Defenda

nts-Appellee s.

District & N o. First District, F ourth Division Docke t No. 1-11-0626

Rule 23 Order

filed Rule 23 Order withdrawn Opinion filed J une 28, 2012

J uly 30, 1012 August 16, 2012

Held (Note : This syl lab us

c ons ti tut es no par t of the opi nio n of the cour t but has bee n pre

par ed by the Repo rt e r 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

. ) Plaintiff mortg ag ee’ s petition under section 2-1401 of the Code of Civil Procedur e seeking to vacate a judgme nt of fore closure and confirmation of sal e enter ed in its favor but also subjecting it to liability for past-due
assessments was proper l y d enied wher e plaintiff failed to prese nt a meritorious defe nse or c laim.

Dec ision Under
Review Appea l from the Circuit Court of Cook County
, No. 09-C H-30407; the Hon. Dar ry l B. Simko, J udg e, pre siding.

J udg ment Affir med.Counsel on

Appea l L aw Offic es of Ira T. Neve l, L L C, of Chicag o (Ira T. Neve l, of counsel), for a ppellant.

L evenf eld P ea rlstein, L L C, of Chicag o (Christopher M. Heintskill and Paul J

. Ochmane k J r., of counsel), for appellee Five Thousand East End Avenue BuildingCorp.

Panel J USTI CE STERBA deliver ed the judgment of the c ourt, with opinion. Presiding J ustice L avin and J ustice Fitzge rald Smit h concu rr ed in the judgme nt and opinion.

OP INION

¶ 1 Citi Mortg ag e, Inc., commence d fore closure proce eding s on a security interest held in a unit located in a coope rative building

. Citi Mortg ag e purcha sed that unit at a judgme nt sa le and the trial court enter ed an order confirming the sale. Citi Mortg ag e then filed a petition to

vacate the trial court’s order confirming the sale of the unit pursuant to section 2-1401 of the Code of Civil Procedur e (735 I L CS 5/2-1401 (West 2010)) when it discovere d that it would be liable for paying past-due assessments and that the cooper ative b u i lding planned to

conver t its apa rtments into c ondominiums

. Citi Mortg ag e appea ls the trial court’ s denial of its section 2-1401 petition claiming that the trial court err ed in f inding that it f

ailed to raise

a meritorious defe nse. Citi Mortg ag e claims that beca use it was seeking to vacate a judgme nt enter ed in its favor
, it was not required to pre sent a meritorious defense . In the alter native, Citi Mortg ag e claims that the newly discovere d evidenc e of past-due assessments amounting
to $ 5 0
, 0 0 0 a

n d th e cooper ative building’s conver sion into condominiums raises a merit o riou s defe nse. F or the re asons that follow, we aff irm.

¶ 2 BA CKGROUND ¶ 3 On August 26, 2009, Citi Mortg ag e filed a complaint to fore close a cooper ative security
agree ment (Agree ment). The Agree ment was executed on Dec ember 19, 2003, betwee n it and Vivian San J uan and Cameron L

. Ba sden, who wer e the share holders of proper ty located
at 5000 East End, Unit 6D in H yde Park, I llinois
, which was an apar tment in a cooper ative building. San Juan and Ba sden owne d 66 share s in the cooper ative building. The owner of the premises was Five Thousand East End Building Corporation (B uilding Corporation), and San J uan and Ba sden wer e share holders. The total amount of the orig inal indebtedness stated in the Agree ment was $55,600, a nd the principa l balance outstanding w as $51,649.25. ¶ 4 On October 21, 2009, Building Corporation filed its answe r to Citi Mortg ag e’s complaint
to foreclose the Agree ment, which asser ted priority as an aff

irmative defe nse. Building Corporation claimed that “by virtue of the Proprietar y L ease and Recognition Agree ment,

-2-the right, title and interest of the Building Co rp o ration to pay ment of its assessments and fees
, i s p ri o r and superior to the interest of the Plaintiff here in.” Building Corporation

asser ted that it must be paid for past-due amounts befor e Citi Mortg ag e could rec eive any distributions resulting from the dispositi on of the share s. At t ached to the answe r was the aff idavit of Br ooke Finlan, who was Building Corporation’s proper ty manag er, which stated that Building Corporation was owed $18,934.79 in past-due assessments, charg es and fee s as of Oc tober 15, 2009. ¶ 5 On No v ember 10, 2009, Building Corporation issued to Citi Mortg age a ce rt i fi ca t e identifying it as the owner of 66 share s of capital stock of the building, which wer e the share s owned by San J uan and B asden. ¶ 6 On Dec ember 8, 2009, Citi Mortg ag e filed a motion for defa ult and cer

tificate of service
ag ainst San J uan and Ba sden. On that s am e day
, Citi Mortg ag e also filed a motion for
summary judgme nt ag ainst Building Corporation. On J anuar y 21, 2010, th e t ri al court enter ed an order of defa

ul t aga i n st San J uan and Ba sden. Also on that day
, the trial court enter ed an order g ranting Citi Mortg ag e’s motion for summary judgme nt and simult aneously
enter ed the judgme nt of fore closure and order of sale. The judgme nt of fore closure stated that Citi Mortg ag e’s mortg ag e was superior to all other defe ndants’ liens, rights or claims upon the rea l estate, and that the total amount due to Citi Mortg ag e was $58,726.40. The judgme nt of foreclosure also provided that CitiMortga g e shall pay any rea l estate tax es, assessments

or any other advanc es during the statutory period of rede mption, which expired on April 21, 2010. T h e fore closure sale occur red on May 21, 2010, and Citi Mortg ag e was the highe st bidder off ering$34,126. ¶ 7 In May 2010, Building Corporation filed a forc ible en t ry an d d etainer action ag ainst Citi bank. This action did not proce ed to trial beca use Citi Mortg ag e’s mortg ag e was superior
to all other defe ndants’ liens, rights or claims. Building Corporation’s counsel was not awa re of the pending fore closure action until Citi bank’s counsel brought that proce eding to his and the trial cour

t’s attention. ¶ 8 On August 4, 201 0
, Bu i l ding Corporation filed a stipulated motion for substitut ion of counsel, motion to vaca

te the judgme nt of fore closure, and to disapprove the repor t of sale. Building Co rp o ra tion asser ted that in its answe r to the complaint, it stated that the fore closu re action involved a residential cooper ative and that Citi Mortg ag e’s interest was subject to and subordinate to its int er es t. Building Corporation claimed that Citi Mortg ag e misled the court beca

use i t fa iled to inform it about the exis tence and eff ect of the

rec og nition agree ment executed betwee n it and Citi Mortg ag e on Dec ember 19, 2003, which provided that Building Corporation’s lien was superior to Citi M o rtg ag e’s lien. The trial court enter ed an order on August 12, 2010 continuing Building Corporation’s motion to vacate to September 2, 2010. ¶ 9 Also on August 4, 2010, Citi Mortg ag e filed a mot ion for confirmation of sale, and the trial court on August 10, 2010, entere d an orde r conf irming the sale. ¶ 10 On September 2, 2010, the trial court enter ed an order granting BuildingCorporation’s stipulated motio n for substitut ion of counsel. The trial court also g rante d in part Building Corporation’s motion to vaca te the judgme nt of fore closure, and amende d the judgme nt of

-3-fo re cl o sure to provide it with a lien, right or claim superior to all other parties, includ i n g

Citi Mortg ag e, and Citi Mortg ag e now had a l i en, right or interest subordinate to Building Corporation, b u t s uperior to all other defe ndants. The trial court also ruled that Building Corporation’s motion to disapprove the r eport of sa le was stric ken. ¶ 11 L ee Ann Cummi ng s, presiden t o f t h e board of direc tors of building corpor ation, sent Citi Mortg ag e’s attorney an e-ma il on October 29, 2010. The e-ma il indicated that she spoke with Citi Mortg ag e’s attorney on that day and that she had explained the conver sion proce ss to him, which was ong oing for the past two year s. Cummi ng s stated in t h e e- m ail that all documents wer e sent to Citi Mortg ag e “eve ry single time there [was] information reg arding this conver sio n

. ” Cummi ng s also stated that on Marc h 8, 2010, “a vote was taken of the share holders and a super- majority voted to move forwa rd with the conver sion to a condominium and dissolve the cooper ative.” Cummi ng s estimated that conver sion buyouts would rang e from $60,000 to $176,000. ¶ 12 On November 5, 2010, Citi Mortg ag e filed a motion to vaca te the May 21, 2010 judicial sale, the August 10, 2010 order confirming the sale, the J anuar y 2 1
, 2 0 1 0 judgme nt of fore closure and for entry

of an or der voluntarily

dismiss ing the case pursuant to section 2- 1401. In this motion, Citi Mortg ag e asser ted that the conver sion of the cooper ative apar tment into a condominium rende rs the purcha sed interest virtually worthless and imposes upon it excessive liabiliti es, both of which wer e prev io u s ly u nk n o wn to it. Citi Mortg ag e claimed that it would cost betwee n $60,000 to $176,000 to purcha se th e foreclosed upon unit from the
cooper ative associa t ion, and past-due assessments, attorney fee s and costs totaling

a p p r o x imately $50,000 would be due. Citi Mortg ag e asser ted that if Buil d in g Co r

p o r a ti o n h a d informed it about those c harg es, it would not have proc eede d with the fore closure a ction. ¶ 13 On J anuar

y 2 5
, 2 0 1 1
, t h e t ri al court denied Citi Mortg ag e’s section 2-1401 petition finding that no meritorious defe nse was stated in the petition. Citi Mortg ag e timely filed this 1
appea l.

¶ 14 ANALYSI S ¶ 15 As an initial matter, Building Corporation claims that Citi Mortg ag e waived revie w of the
assessment and conver sion issues on appea l beca use it failed to object to its motion to vacate

T he c opy of t he o rde r i n t he r eco rd st at es the fo ll owin g: 1 “T his m at te r coming on Plt f’ s 2- 1401 m oti on to vacat e j udgm ent , sal e + sal e

con fi rmati on; th e c our t a dvise d i n t he p re m is es andar gum enthaving bee n he ar d I t i s he re by orde re d: 1) Def end ant ’s 2- 1401 m oti on is den ie d as t h e court fi nds the re is no m er it ori ous def ens e s ta te d.” (Emphasi s a dde d.) On app eal
, Cit iM ort gag e cl ai m s tha t it s sec ti on 2- 1401 pet it ion was den ie d, and the tr ia l cou rt ’s J anu ary 25, 2011 ord er is the sub j ect of the is sue s on app eal . We note tha t Buil din g Corpor at ion ’s

sec ti on 2- 1401 pet it ion was rul ed upon by the tr ia l cou rt on Sept ember 2, 2010

. T hus
, we con cl ude tha t a scr ivener ’s error cau sed the word “Def end ant ’s ” ins te ad of the word “Pl ai nti ff’s ” to be st at ed in the tr ia l c our t’ s J anu ary 25, 201 1 or der

.
-4-or the trial court’s order amending the judgme nt of fore closure. Although it is tru e that

Citi Mortg ag e did not file those pleading s identified by Building Corporation, it seeks revie w of its own section 2-1401 petition raising newly discovere d evidenc e that the trial court denied, and it is not seeking revie w of the trial court’s ruling s relating to any of Building Corporation’s motions. Thus
, C i t i M ortg ag e has not waived revie w of its section 2-1401 petition. ¶ 16 Citi Mortg ag e first claims t h at i t i s not require d to satisfy section 2-1401’s standa rd require ments of prese nting a meritori o u s d efense or claim and exercising due diligenc e beca use it seeks to vacate a judgme nt enter ed in its favor

. Citi Mortg ag e contends that revie w of the trial court’s denial of a section 2 -1401 petition seeking to vacate a judgme nt of fore closure e ntere d in favor of the moving pa

rty is a matter of

first impression. ¶ 17 Citi Mortg ag e’s claim that it is not require d to satisfy the require ments of a section 2-1401 petition is not persua sive. Citi Mortg ag e relies on Household Bank, FSB v. Lewis
, 229 I ll. 2d 173 (2008), to support its position t hat it may bring a mot ion to vacate a judg ment enter ed i n i ts favor
, but its relianc e is misplaced beca use Household is distinguishable from the instant case

. In Household
, the I llinois Supreme Court held that the trial court did not err in
g ranting the mortg ag ee bank’s motion to vacate the judicial sale in a fore closure proce eding

. Id. at 184. The Household court noted that a judicial sale is not complete until the trial court enter s an order confirming the sale. Id. at 181. The mortg ag ee bank in Household moved to withdraw the motion to confirm the judicial sale and to vacate the sale. Id. at 180. Thus, the mortg ag ee bank soug ht to voluntarily dismi s s i t s cl ai m prior to the trial court’s entry of judgme nt. See id. In the i n s t an t ca s e, howeve r, the trial court alre ady enter ed judgme nt in Citi Mortg ag e’s favor
, which it subsequently seeks to vacate pursuant to section 2-1401. For this reason, Household

is disti nguishable. ¶ 18 Section 2-1401 provides a party with relief from a final judgme nt, if the petition se eking relief is filed 30 day s afte r entry of the orig inal judgme nt. See 735 I L CS 5 / 2-1401 (West 2010). W e note that se ction 2-1401’s langua g e does not differ entiate between which party is bring ing the petition to vacate, and it provides relief in ever y case wher e available

. Section 2-1401 states in pertinent part that “[a]ll relief here tofore obtainable and the g rounds for such relief here tofore available
, whether by any of the fore g oing reme dies or otherwise, shall be available in ever

y case , by proce eding s here under, reg ardle ss of the nature of the order or judgme nt from which relief is soug ht or of t h e p ro cee dings in which it was enter ed.” 735 I L CS 5/2-1401 (West 2010). The seminal case of Smith v. Airoom, Inc.
, 114 I ll. 2d 209, 220- 21 (1986), provides additional guidance . In Smith , the I llinois Supreme Court set forth the

re qu i re m ents that must be met to obtain the relief provided for in section 2-1401. Id. Acc ording t o Smith
, “[t] o be entitled to relief under section 2-1401, the petitioner must aff irmatively set forth specific fac tual alleg ations supporting eac h of the following elements: (1) the exis tence of a meritorious defe nse or claim; (2) due diligence i n p re s enti ng this defe nse or claim to the circ uit court in the orig inal action; and (3) due diligenc e in filing the
sect i on 2-1401 petition for relief .” Id. Smith
, too, does not differ entiate betwee n the
preva iling or losing party when it set forth the require ments that must be satisfied to preva il

on a sec tion 2-1401 petition. Instead, Smith ref ers g ener ally

to “petitioner.” ¶ 19 Her e, Citi Mortg ag e, as the moving party bring ing the s ec t i o n 2 -1 4 0 1 petition, is the

-5-petitioner. Ba sed on the statutory languag e of sec tion 2-1401 and the principles articula ted in Smith
, we find no basis to cre ate an exception to the require ments of sec tion 2-1401 for

a petitioner seeking to vaca te a judgme nt enter ed in its favor as urg ed b y C i t i M ortg ag e. Acc ording ly
, we reje ct Citi Mortg ag e’s contention that it is not require d to pres en t a meritorious defe nse or c laim. We note that Cit iMortga g e in i ts brief states that a suff icient

rea son or explanation should be a ll that is required at most to vacate a judgme nt e ntere d in its favor

. We see littl e distinction betwee n Citi Mortg ag e’s acknow ledg e ment that a sufficie nt

rea son or ex p l an at i o n at minimum should be provided to vacate a judgme nt and requiring that the petitioner prese nt a meritorious d e f e n se or claim. Under both scena rios, the petitioner must present a rea son or claim why the trial cour

t’s prior judg ment should be vac ated. We conclude that by requiring the pleading of a meritorious defe nse or claim, a uniform standard exis ts for the trial court to adopt in deciding whether to vacate a previously enter ed judgme nt. ¶ 20 We next turn to addre ss the merits o f t h e claim that Citi Mortg ag e raises as a basis to

vacate the trial court’s prior judgme nt. Citi Mortg ag e asser ts that newly discovere d evidenc e

reve als that Building Corporation conce aled and materia lly omitted during the prior
proce eding s its knowledg e reg arding assessments in arr ear s amounting to ap p ro x i m ately $50,000 and the cooper ative apar tment’s conver sation into a condominium, which resulted in an estima t ed re p u rchase price of the unit betwee n $60,000 to $167,000. Citi Mortg ag e maintains that had it known about the newly discovered ev i d en ce , it would not have
proce eded with the fore closure action. Citi Mortg ag e claims that the newly discov ere d evidenc e esta

blishes a meritorious defe nse or c laim, and the trial c ourt err ed in deny ing its section 2-1401 pe tition. ¶ 21 A petitioner establishes a meritorious defe nse when he “alleg e[s] fac ts that would have
preve nted entry of the judgme nt if they had been known by the trial court.” Blutcher v. EHS Trini ty Hospital
, 321 I ll. App. 3d 131, 136 (2001). The purpose underly ing a section 2-1401
p eti tion is to allow the petitioner to raise in the trial court fac ts that are ab s en t fr o m t h e

rec ord, but, if the fac ts had been known, the trial court would not have enter ed the judgme nt that it did in the underly

ing proce eding s. Id

. at 135-36. The petitioner of a section 2-1401 petition must establish by a preponde ranc e of the ev i d ence the exis tence of a meritorious defe nse or claim and due diligenc e in pursuing the claim or defe nse. Smith
, 114 I ll. 2d at 220- 21. The g ranting or denial of a section 2-1401 petition rests with the sound discretion of the trial court, afte r considering the fac ts and equities pre s en t ed. Id. at 221. This court will

reve rse the trial court’s ruling on a section 2-1401 petition only wher e the trial court abused its discretion. Id

. A trial court abuses its discretion wher e “the trial court’s decision is arbitra ry , fanc iful, o r unrea sonable, such that no rea sonable person would take the view adopted by

the trial cour

t.” People v . Ramsey , 239 I ll. 2d 342, 429 (2010). ¶ 22 Her e, C itiMortgag e has failed to establish a mer itorious defense or claim. The defense

o r cl ai m that Citi Mortg ag e asser ts to support the g ranting of its section 2-1401 petition, which is that it was unawa re of both the assessments in arr ear s totaling $50, 000 and the

conver sion when the judgme nt of fore closure and order confirming the sale was enter ed, is
not persua sive. As Building Corporation maintains o n ap p eal, its answe r to the complaint raises an aff

irmative defe nse of priority

. In its answe r, Buildi n g Corporation asser ted that Citi Mortg ag e executed the rec og nition agr eeme nt, which states in re levant par t:

-6-“12. In the event the Corporation or the Ba nk conducts any sale or makes any other dispositi on of the Collateral (collec tively
, the ‘Sale’) pursuant to a defa ult b y t h e Bor rowe r, the pa

rty conductingthe S ale sha ll first be entitled to rec eive the r easona ble
expenses of the Sale afte r wh i ch the proce eds from the Sale shall be distributed as follows: (i) First, to the Corporation to pay sums due under the By-L aws and the Proprietar y L ease(includingleg al fe es and c osts) (ii) Then to the B ank to pay the Indebtedne ss (iii) Then to the C o rp o ra t i o n or the Bor rowe r as provided in the By-L aws or the Proprietar y L ease provided, that, if the Ba nk pay s the Corporation all amounts due under the By-L aws and the L ease and continues to pa y such amounts as they become due, the Corporation shall not issue a new Certificate, enter into a new L ease or sell or otherwise dispose of the Collateral for an amount less than the sum of the amount of the Bor rowe r’s obligation to the Ba

nk and the amount owed the Corporation under the L ease and the By

L aws, without the B ank’s pr ior written appr oval.”
Citi Mortg ag e co n sented to the rec og nition agree ment when it executed the agree ment on Dec ember

19, 2003. Also in its answe r, BuildingCorporation stated that the a mount owed
to it as of October 9, 2009, was $18,934.79 in past-due assessments, charg es and fee s, which

was detailed in an attache d aff id av it. Be cause Citi Mortg ag e executed the rec og nition
agree ment and the amount of assessment in arr ear s as of October 9, 2009, was disclosed in Building Corporation’s answe r, we disagree with Citi Mortg ag e’s contention that the amount of assessments, attorney fee s and costs owed as of September 2, 2010, constitutes newly discovere d evidenc e. Citi Mortg ag e was on notice that a risk exis ted that it would be subject
to past-due assessments and fee s, and that the assessm en t s an d fee s continued to acc rue du ri n g t h e pendenc y of the proce eding s. Thus, Citi Mortg ag e had the duty to exercise du e diligenc e to re main abre ast of the amount of fee s acc ruingthroughout the proce eding s and
cannot s u cce ssfully asser t its lack of knowledg e reg arding the amount of assessments and fee s acc rued a s a meritorious def ense or claim. ¶ 23 Simi larly
, C i t i M o rt gage fa i l s to raise a meritorious defe nse or claim reg ardingthe
cooper ative bu i l d i ng ’s conver sion into condominiums. The basis of Citi Mortg ag e’s meritorious defe nse or claim, here
, is that had it known about the conver sion proce ss and the require d buy -in amount, it would not have proce eded to the judicial sale, and it would have

vacated the judgme nt of fore closure and dismiss ed the fore closure actio n at t hat time. Citi Mortg ag e, howeve r, does not establish that the trial court would not have enter ed the order confirmingthe sale had the conversion information been prese nted t o the trial cour t. Citi Mortg ag e’s asser

ted meritorious d efe nse or claim is that it would not have proce eded with the sale ha d it known about the conve rsion and the a ssociated c osts. ¶ 24 Citi Mortg ag e also claims that Building Corporation had an aff irmative duty to inform it that plans wer e in progre ss to conver t the cooperative apartments int o condominiums, and beca use i t failed to provide the rele v an t i nformation to Citi Mortag e, the newly discovere d evidenc e provide s it with a meritorious defe nse or c laim. We disagr ee. ¶ 25 W e note that in an e-ma il dated October 29, 2010 to Citi Mort gage ’s at t o rn ey , t h e

-7-cooper ative buil ding’ s president, L ee Ann Cummi ng s, stated that the conve rsion had been

on-g oing for the last two year s, and that the cooperative s en t al l d o cuments relating to the

conver sion to Citi Mortg ag e. The e-ma il also stated that on Marc h 8, 2010, “a vote was taken of the share holders and a super- maj ority voted to move forwa rd with the conver sion to a condominium and dissolve the cooper ative.” T hus, the rec ord reve als that Building Corporation claims to have notified Citi Mortg ag e of the impending conver sion. This claim, howeve r, is rebutted by Citi Mortg ag e’s attorney ’s aff idavit that was attache d to Citi Mortg ag e’s section 2-1401 petition wher e the attorney stated that hi s co m m u nication with Cummi ng s on October 29, 2010 was the first t i m e that he or Citi Mortg ag e beca me

awa re of the conver sion proce ss and that the assessments in arr ear s totaled $50,000. Be cause

a transcript of the hearing on the section 2-1401 petition is not included in the rec ord, we cannot conclude how in-depth this e-ma i l and the aff idavit wer e discussed during the hearing. Howeve r, the e-ma il and aff idavit wer e attache d to Citi Mortg ag e’s section 2-1401 petition and we, thus, conclude that the trial court revie wed and considere d the content of the

e-ma il and aff

idavit and place d appropriate weigh t o n those documents. Moreove r, Citi Mortg ag e fails to prese nt case law supporting its position that Building Corporation had an affirmative leg al dut y to disclose t o it and the trial court i t s future plans conce rning the
proper ty

. ¶ 26 C i tiMortga g e relies on Departme nt of Conservation v. Cipriani
, 202 I ll. App. 3d 9 8 6 (1990), to support its claim that err ors in proper ty valuation cre ate a meritorious defe nse, but its relianc e is misplaced. In Cipriani
, this court held that the trial court err ed in denying the petitio n er ’s section 2-1401 petition beca use newly discovere d evidenc e resulting from a subsequent letter of map revisions (L OMR) reve aled t h at t h e petitioner’s proper ty was previously devalue d when it was erro neously included in a flood plain based on a flood insurance study completed by the United States Soil Conservation Service

. Id. at 991. This
court reasone d that the t rial court undoubtedly would have give n the prior flood insurance study g rea

t we i gh t s i nce the study was conducte d by a fede ral ag ency

. Id. at 992. The subsequent L OMR, however , indicated that the prior flood insurance study was wr ong

. Id.
at 991. Thus, the Cipriani court conclude d that the subsequent L OMR was newly discovere d evidenc e. The fac ts in Cipriani are clea r that neither the parties nor the trial court knew when the j udg ment was entered that the prior L OMR was inaccu ra t e, an d all parties relied upon that repor

t. In contra st, Citi Mortg ag e in the case sub judice contend s t h at Building Corporation knew, when the order confirming the sale was entered, that the cooper ative building would be conver ted into condominiums. Thus, C i t i M o rt g ag e cannot asser t that neither party knew of the info rm at i o n t hat it claims was newly discovere d. Also, Citi Mortg ag e does not prese nt evidenc e that i t an d t h e t rial court relied upon a thi rd-pa rty prepa red document t h at was subsequently discovere d to be err oneous. For these rea sons, Cipriani is disti nguishable. ¶ 27 Moreove r, Citi Mortg ag e fails to persua de this court that its meritorious defe nse or cla im based on newly discovere d evidenc e is of the nature that customarily war rants relief pursuant to section 2-1401. For ex ample, in Blutcher v. E HS Trinit y Hospital , 321 I ll. App. 3d 131, 140 (2001), this c ourt held that a meritorious defe nse exis ted wher e the plaintiff’s attorney settled a case, but it was subsequently lear ned that he did not have t he plainti ff’ s authority

-8-or consent to settle. Also, in Sunderland v. Por t es , 324 I ll. App. 3d 105, 111 (2001), this

court held that minors satisfied the require ments of a section 2-1401 petition by prese nting

new fac ts establishing that the trial court knew during the underly ing proce eding that the minors’ attorney s withdrew, but the trial court did not know that the minors’ pare nts would

never obtain new counsel and do nothing to protec t the minors’ interest. Howeve r, in Physicians Insurance Exc hange v. Jennings
, 316 I ll. App. 3d 443, 458 (2000), the petitioner
soug ht to vacat e a j u d gm en t claiming that it dismiss ed its appea l on the belief that its opponent’s motion for costs rende red the appea l premature. The Jennings court held that the petitioner’s misunderstanding of its opponent’s motion was a proce dural mistake of law, which did not provide a sufficie nt ground to vac at e a judgme nt, and that its opponent’s attorney had no oblig ation to inform it that the appea l was not premature, but timely

. Id. ¶ 28 Her e, Citi Mortg ag e claims that beca use it did not know of the coop er ati ve building’ s future plans for conver sion, the judgme nt of fore closure should be vacated since its acquir ed interest is now rende red worthless unless it i n cu rs additional costs to purcha se the condominium. Citi Mortg ag e also claims that Building Corporation knew abou t t he

conver sion plans, but did not reve al those plans to it or the trial court so that proper decisions could be made prior to the sale. Citi Mortg ag e’s alleg ations all have the common element that it potentially would not have made the decision to continue with t h e foreclosure and sale
p ro ce ed i n g s had it known about the amount of assessments in arr ear s and the conver sion. Citi Mortg ag e, howeve r, does not establish that the trial court would not have enter ed the judgme nt or order confirming the sale had it known about that same i n fo rm at ion. Also, Citi Mortg ag e does not c ontend that B uilding Corporation preve nted it from independe ntly discovering the information reg arding the amount of assessments past-due and the future

conver sion plans. Fur

thermore
, we note that Citi Mortg ag e did not file a response to Building Corporation’s mot ion to vacate t he judgment of forec losure whe rein it asser ted i ts priority

over Citi Mortg ag e. In the instant case , the trial court did not abuse its discretion in denying Citi Mortg ag e’s section 2-1401 petition beca use Citi Mortg ag e failed to prese nt a meritorious defe nse or claim by a preponde ranc e of the evidenc e. Moreove r, beca use Ci t i Mortg ag e

ex ecuted the rec og nition agree ment, and Building Corporation raised priority as an aff irmative defe nse in its answe r and filed its motion to vacate the judgme nt asser ting priority befor e the trial court entered its order confirming the sale, the trial court did not abuse its discret i o n i n ref

using to invoke its equitable jurisdiction to vacate the judgme nt of fore closure e ntere d in Cit iMortga g e’s f avor. ¶ 29 Citi Mortg ag e next contends that the trial court’s September 2, 2010 order amendingthe judgme nt of fore closure contra dicts with the trial court’s August 10, 2010 order confirming the s ale, which was not vaca ted or amende d. The orde r conf irming the sale stated that “all claims of parties to the f

orec losure ar e her eby

terminated a

nd barr ed pursuant to 735 I L CS 5 /1 5

- 1 5 0 9 ( c ) including all Co-op assessments, charg es and fee s. Plaintiff shall be res p o n s ib le for future amounts only afte r issuance of the afor esaid documents.” Although Citi Mortg ag e is corre ct that the order confirming the sale wa s not ex pressly amende d, the trial cour

t did, subsequent t o en t ering that order
, amend the judgme nt of foreclosure
, which amended the priority amongthe par

ties and, thus, direc tly

impacted the order c onfirmingthe sale. A lso, in the September 2, 2010 order wher ein the trial court amende d the judgme nt of fore closure,

-9-it struck Building Corporation’s motion to disapprove the repor t of sale. When the trial court subsequently amende d the judgme nt of fore closure, it eff ectively amende d t h e order confirming the sale beca

use the amende d judgmen t o f fo rec losure now rende red Building Corporation’s interest superior to Citi Mortg ag e’s interest. No confusion is cre ated betwee n the two conflicting order s as all parties know a nd understand that the subsequent amende d judgme nt o f fore closure is the controlling document. Citi Mortg ag e further contends that Building Corporation did not amend and asser t its right of priority until af ter the trial court enter ed its order confirming t h e s al e on August 10, 2010. Although it is true that the trial
court did not rule upon Building Corporation’s motion to vacate or amend the judgme nt of fore closure until afte r it enter ed its order confirming the sale, contra ry to Cit i M o rt gage ’s claim, Building Corporation did file its motion to vacate asser ting its priority rights two day s before the trial court enter ed its order confirming the sale on August 12, 2010. Acc ording ly
, the trial court’s amende d judgme nt of fore closure is not rende red invalid beca use it conflicts with the previously

enter ed orde r conf

irming the sale. ¶ 30 Finally
, Citi Mortg ag e cla ims that Building Corpor ation failed to provide it with notice of the conver sion a s set forth in the bylaws since it owne d 66 share s in the corpor ation and that this failure of notice constitutes a chang e in circ umstances war ranting the granting of its section 2-1401 petition. Citi Mortg ag e contends that the failure to provide the require d notice is tantamount to fra

ud beca use it was denied information nece ssary to deter mine whether it should procee d with the fore closure a ction. ¶ 31 Although Building Corporation issued a cer tificate repr esenting owner ship of 66 share s of capital stock to Citi Mortg ag e befor e entry of the judgme nt of fore closure and order of sale,

we note that this is the reque st for relief set forth in Citi Mortg ag e’s complaint. Citi Mortg ag e claims that Building Corporation prem at u re ly issued to it the 66 share s in the cooper ative building on November 10, 2009, and beca use Building Corporation did so, it was entitled to notice of the conver sion and meeting s in acc ordanc e with the bylaws. As previously stated, both the e-ma il from Cummi ng s stating that Citi Mortg ag e rec eived notice of the conver sion plan and Citi Mortg ag e’s counsel’s aff idavit aver

ring that he and Citi Mortg ag e had no notice of the conver sion proce ss wer e prese nted to the trial court for its consideration. We note that the rec ord is devoid of evidenc e indicating that Citi Mortg ag e exercised due diligenc e befor e participating in the fore closure sale and seeking an order confirming the sale by reque sting information conce rning the curr ent amount of assessments in arr ear s and inquiring about any future plans involving the proper ty

. The rec ord is also devoid of evidenc e demonstrating that Building Corporation purposely conce aled and withheld info rm at i on that Citi Mortg ag e reque sted, which would have been tantamount t o fr au d

. Acc ording ly
, no chang e in circ umstances occur

red that war

rants the granting of Citi Mortg ag e’s section 2-1401 petition.

¶ 32 CONCLUSI ON ¶ 33 For the rea sons stated, we aff irm the trial court’s denial of Citi Mortg ag e’s section 2-1401 petition.

¶ 34 Affir

med.

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