ILLINOIS OFFICIAL REPORTS

Appellate Court

CitiMortgage, Inc. v. San Juan, 2012 IL App (1st) 110626

Appellate Court

Caption

CITIMORTGAGE, INC., Plaintiff-Appellant, v. VIVIAN SAN JUAN;

FIVE THOUSAND EAST END AVENUE BUILDING

CORPORATION; CAMERON L. BASDEN; CITIBANK, N.A., Under

SecurityAgreement Recorded December 21, 2006 as Document Number

0635555073; NONRECORD CLAIMANTS; AND UNKNOWN

OWNERS, Defendants-Appellees.

 District & No. First District, Fourth Division

Docket No. 1-11-0626

Rule 23 Order filed

Rule 23 Order

withdrawn

Opinion filed

June 28, 2012

July 30, 1012

August 16, 2012

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.)

Plaintiff mortgagee’s petition under section 2-1401 of the Code of Civil

Procedure seeking to vacate a judgment of foreclosure and confirmation

of sale entered in its favor but also subjecting it to liability for past-due

assessments was properly denied where plaintiff failed to present a

meritorious defense or claim.

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 09-CH-30407; the

Hon. Darryl B. Simko, Judge, presiding.

Judgment Affirmed.
Counsel on

Appeal

Law Offices of Ira T. Nevel, LLC, of Chicago (Ira T. Nevel, of counsel),

for appellant.

Levenfeld Pearlstein, LLC, of Chicago (Christopher M. Heintskill and

Paul J. Ochmanek Jr., of counsel), for appellee Five Thousand East End

Avenue Building Corp.

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

Presiding Justice Lavin and Justice Fitzgerald Smith concurred in the

judgment and opinion.

OPINION

¶ 1 CitiMortgage, Inc., commenced foreclosure proceedings on a security interest held in a

unit located in a cooperative building. CitiMortgage purchased that unit at a judgment sale

and the trial court entered an order confirming the sale. CitiMortgage 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 Procedure (735 ILCS 5/2-1401 (West 2010)) when it discovered that it would

be liable for paying past-due assessments and that the cooperative building planned to

convert its apartments into condominiums. CitiMortgage appeals the trial court’s denial of

its section 2-1401 petition claiming that the trial court erred in finding that it failed to raise

a meritorious defense. CitiMortgage claims that because it was seeking to vacate a judgment

entered in its favor, it was not required to present a meritorious defense. In the alternative,

CitiMortgage claims that the newly discovered evidence of past-due assessments amounting

to $50,000 and the cooperative building’s conversion into condominiums raises a meritorious

defense. For the reasons that follow, we affirm.

¶ 2 BACKGROUND

¶ 3 On August 26, 2009, CitiMortgage filed a complaint to foreclose a cooperative security

agreement (Agreement). The Agreement was executed on December 19, 2003, between it

and Vivian San Juan and Cameron L. Basden, who were the shareholders of property located

at 5000 East End, Unit 6D in Hyde Park, Illinois, which was an apartment in a cooperative

building. San Juan and Basden owned 66 shares in the cooperative building. The owner of

the premises was Five Thousand East End BuildingCorporation (Building Corporation), and

San Juan and Basden were shareholders. The total amount of the original indebtedness stated

in the Agreement was $55,600, and the principal balance outstanding was $51,649.25.

¶ 4 On October 21, 2009, BuildingCorporation filed its answer to CitiMortgage’s complaint

to foreclose the Agreement, which asserted priority as an affirmative defense. Building

Corporation claimed that “by virtue of the Proprietary Lease and Recognition Agreement,

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the right, title and interest of the Building Corporation to payment of its assessments and

fees, is prior and superior to the interest of the Plaintiff herein.” Building Corporation

asserted that it must be paid for past-due amounts before CitiMortgage could receive any

distributions resulting from the disposition of the shares. Attached to the answer was the

affidavit of Brooke Finlan, who was BuildingCorporation’s propertymanager, which stated

that Building Corporation was owed $18,934.79 in past-due assessments, charges and fees

as of October 15, 2009.

¶ 5 On November 10, 2009, Building Corporation issued to CitiMortgage a certificate

identifying it as the owner of 66 shares of capital stock of the building, which were the shares

owned by San Juan and Basden.

¶ 6 On December 8, 2009, CitiMortgage filed a motion for default and certificate of service

against San Juan and Basden. On that same day, CitiMortgage also filed a motion for

summary judgment against Building Corporation. On January 21, 2010, the trial court

entered an order of default against San Juan and Basden. Also on that day, the trial court

entered an order grantingCitiMortgage’s motion for summary judgment and simultaneously

entered the judgment of foreclosure and order of sale. The judgment of foreclosure stated that

CitiMortgage’s mortgage was superior to all other defendants’ liens, rights or claims upon

the real estate, and that the total amount due to CitiMortgage was $58,726.40. The judgment

of foreclosure also provided that CitiMortgage shall pay any real estate taxes, assessments

or any other advances during the statutory period of redemption, which expired on April 21,

2010. The foreclosure sale occurred on May 21, 2010, and CitiMortgage was the highest

bidder offering $34,126.

¶ 7 In May 2010, Building Corporation filed a forcible entry and detainer action against

Citibank. This action did not proceed to trial because CitiMortgage’s mortgage was superior

to all other defendants’ liens, rights or claims. BuildingCorporation’s counsel was not aware

of the pending foreclosure action until Citibank’s counsel brought that proceeding to his and

the trial court’s attention.

¶ 8 On August 4, 2010, Building Corporation filed a stipulated motion for substitution of

counsel, motion to vacate the judgment of foreclosure, and to disapprove the report of sale.

Building Corporation asserted that in its answer to the complaint, it stated that the

foreclosure action involved a residential cooperative and that CitiMortgage’s interest was

subject to and subordinate to its interest. Building Corporation claimed that CitiMortgage

misled the court because it failed to inform it about the existence and effect of the

recognition agreement executed between it and CitiMortgage on December 19, 2003, which

provided that BuildingCorporation’s lien was superior to CitiMortgage’s lien. The trial court

entered an order on August 12, 2010 continuing Building Corporation’s motion to vacate to

September 2, 2010.

¶ 9 Also on August 4, 2010, CitiMortgage filed a motion for confirmation of sale, and the

trial court on August 10, 2010, entered an order confirming the sale.

¶ 10 On September 2, 2010, the trial court entered an order granting Building Corporation’s

stipulated motion for substitution of counsel. The trial court also granted in part Building

Corporation’s motion to vacate the judgment of foreclosure, and amended the judgment of

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foreclosure to provide it with a lien, right or claim superior to all other parties, including

CitiMortgage, and CitiMortgage now had a lien, right or interest subordinate to Building

Corporation, but superior to all other defendants. The trial court also ruled that Building

Corporation’s motion to disapprove the report of sale was stricken.

¶ 11 Lee Ann Cummings, president of the board of directors of building corporation, sent

CitiMortgage’s attorney an e-mail on October 29, 2010. The e-mail indicated that she spoke

with CitiMortgage’s attorney on that day and that she had explained the conversion process

to him, which was ongoing for the past two years. Cummings stated in the e-mail that all

documents were sent to CitiMortgage “every single time there [was] information regarding

this conversion.” Cummings also stated that on March 8, 2010, “a vote was taken of the

shareholders and a super-majority voted to move forward with the conversion to a

condominium and dissolve the cooperative.” Cummings estimated that conversion buyouts

would range from $60,000 to $176,000.

¶ 12 On November 5, 2010, CitiMortgage filed a motion to vacate the May 21, 2010 judicial

sale, the August 10, 2010 order confirming the sale, the January 21, 2010 judgment of

foreclosure and for entry of an order voluntarily dismissing the case pursuant to section 2-

1401. In this motion, CitiMortgage asserted that the conversion of the cooperative apartment

into a condominium renders the purchased interest virtually worthless and imposes upon it

excessive liabilities, both of which were previouslyunknown to it. CitiMortgage claimed that

it would cost between $60,000 to $176,000 to purchase the foreclosed upon unit from the

cooperative association, and past-due assessments, attorney fees and costs totaling

approximately$50,000 would be due. CitiMortgage asserted that if BuildingCorporation had

informed it about those charges, it would not have proceeded with the foreclosure action.

¶ 13 On January 25, 2011, the trial court denied CitiMortgage’s section 2-1401 petition

finding that no meritorious defense was stated in the petition. CitiMortgage timely filed this 1

appeal.

¶ 14 ANALYSIS

¶ 15 As an initial matter, BuildingCorporation claims that CitiMortgage waived review of the

assessment and conversion issues on appeal because it failed to object to its motion to vacate

The copy of the order in the record states the following: 1

“This matter coming on Pltf’s 2-1401 motion to vacate judgment, sale + sale

confirmation; the court advised in the premises and argument having been heard

It is hereby ordered:

1) Defendant’s 2-1401 motion is denied as the court finds there is no meritorious

defense stated.” (Emphasis added.)

On appeal, CitiMortgage claims that its section 2-1401 petition was denied, and the trial court’s

January 25, 2011 order is the subject of the issues on appeal. We note that Building Corporation’s

section 2-1401 petition was ruled upon by the trial court on September 2, 2010. Thus, we conclude

that a scrivener’s error caused the word “Defendant’s” instead of the word “Plaintiff’s” to be stated

in the trial court’s January 25, 2011 order. 

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or the trial court’s order amending the judgment of foreclosure. Although it is true that

CitiMortgage did not file those pleadings identified byBuildingCorporation, it seeks review

of its own section 2-1401 petition raising newly discovered evidence that the trial court

denied, and it is not seeking review of the trial court’s rulings relating to any of Building

Corporation’s motions. Thus, CitiMortgage has not waived review of its section 2-1401

petition.

¶ 16 CitiMortgage first claims that it is not required to satisfy section 2-1401’s standard

requirements of presenting a meritorious defense or claim and exercising due diligence

because it seeks to vacate a judgment entered in its favor. CitiMortgage contends that review

of the trial court’s denial of a section 2-1401 petition seeking to vacate a judgment of

foreclosure entered in favor of the moving party is a matter of first impression.

¶ 17 CitiMortgage’s claim that it is not required to satisfythe requirements of a section 2-1401

petition is not persuasive. CitiMortgage relies on Household Bank, FSB v. Lewis, 229 Ill. 2d

173 (2008), to support its position that it may bring a motion to vacate a judgment entered

in its favor, but its reliance is misplaced because Household is distinguishable from the

instant case. In Household, the Illinois Supreme Court held that the trial court did not err in

granting the mortgagee bank’s motion to vacate the judicial sale in a foreclosure proceeding.

Id. at 184. The Household court noted that a judicial sale is not complete until the trial court

enters an order confirming the sale. Id. at 181. The mortgagee bank in Household moved to

withdraw the motion to confirm the judicial sale and to vacate the sale. Id. at 180. Thus, the

mortgagee bank sought to voluntarily dismiss its claim prior to the trial court’s entry of

judgment. See id. In the instant case, however, the trial court already entered judgment in

CitiMortgage’s favor, which it subsequently seeks to vacate pursuant to section 2-1401. For

this reason, Household is distinguishable.

¶ 18 Section 2-1401 provides a party with relief from a final judgment, if the petition seeking

relief is filed 30 days after entry of the original judgment. See 735 ILCS 5/2-1401 (West

2010). We note that section 2-1401’s language does not differentiate between which party

is bringing the petition to vacate, and it provides reliefin every case where available. Section

2-1401 states in pertinent part that “[a]ll relief heretofore obtainable and the grounds for such

relief heretofore available, whether by any of the foregoing remedies or otherwise, shall be

available in every case, by proceedings hereunder, regardless of the nature of the order or

judgment from which relief is sought or of the proceedings in which it was entered.” 735

ILCS 5/2-1401 (West 2010). The seminal case of Smith v. Airoom, Inc., 114 Ill. 2d 209, 220-

21 (1986), provides additional guidance. In Smith, the Illinois Supreme Court set forth the

requirements that must be met to obtain the relief provided for in section 2-1401. Id.

According to Smith, “[t]o be entitled to relief under section 2-1401, the petitioner must

affirmatively set forth specific factual allegations supporting each of the following elements:

(1) the existence of a meritorious defense or claim; (2) due diligence in presenting this

defense or claim to the circuit court in the original action; and (3) due diligence in filing the

section 2-1401 petition for relief.” Id. Smith, too, does not differentiate between the

prevailing or losing party when it set forth the requirements that must be satisfied to prevail

on a section 2-1401 petition. Instead, Smith refers generally to “petitioner.”

¶ 19 Here, CitiMortgage, as the moving party bringing the section 2-1401 petition, is the

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petitioner. Based on the statutory language of section 2-1401 and the principles articulated

in Smith, we find no basis to create an exception to the requirements of section 2-1401 for

a petitioner seeking to vacate a judgment entered in its favor as urged by CitiMortgage.

Accordingly, we reject CitiMortgage’s contention that it is not required to present a

meritorious defense or claim. We note that CitiMortgage in its brief states that a sufficient

reason or explanation should be all that is required at most to vacate a judgment entered in

its favor. We see little distinction between CitiMortgage’s acknowledgement that a sufficient

reason or explanation at minimum should be provided to vacate a judgment and requiring

that the petitioner present a meritorious defense or claim. Under both scenarios, the petitioner

must present a reason or claim why the trial court’s prior judgment should be vacated. We

conclude that by requiring the pleading of a meritorious defense or claim, a uniform standard

exists for the trial court to adopt in decidingwhetherto vacate a previouslyentered judgment.

¶ 20 We next turn to address the merits of the claim that CitiMortgage raises as a basis to

vacate the trial court’s prior judgment. CitiMortgage asserts that newly discovered evidence

reveals that Building Corporation concealed and materially omitted during the prior

proceedings its knowledge regarding assessments in arrears amounting to approximately

$50,000 and the cooperative apartment’s conversation into a condominium, which resulted

in an estimated repurchase price of the unit between $60,000 to $167,000. CitiMortgage

maintains that had it known about the newly discovered evidence, it would not have

proceeded with the foreclosure action. CitiMortgage claims that the newly discovered

evidence establishes a meritorious defense or claim, and the trial court erred in denying its

section 2-1401 petition.

¶ 21 A petitioner establishes a meritorious defense when he “allege[s] facts that would have

prevented entry of the judgment if they had been known by the trial court.” Blutcher v. EHS

Trinity Hospital, 321 Ill. App. 3d 131, 136 (2001). The purpose underlying a section 2-1401

petition is to allow the petitioner to raise in the trial court facts that are absent from the

record, but, if the facts had been known, the trial court would not have entered the judgment

that it did in the underlying proceedings. Id. at 135-36. The petitioner of a section 2-1401

petition must establish by a preponderance of the evidence the existence of a meritorious

defense or claim and due diligence in pursuing the claim or defense. Smith, 114 Ill. 2d at 220-

21. The granting or denial of a section 2-1401 petition rests with the sound discretion of the

trial court, after considering the facts and equities presented. Id. at 221. This court will

reverse the trial court’s ruling on a section 2-1401 petition only where the trial court abused

its discretion. Id. A trial court abuses its discretion where “the trial court’s decision is

arbitrary, fanciful, or unreasonable, such that no reasonable person would take the view

adopted by the trial court.” People v. Ramsey, 239 Ill. 2d 342, 429 (2010).

¶ 22 Here, CitiMortgage has failed to establish a meritorious defense or claim. The defense

or claim that CitiMortgage asserts to support the granting of its section 2-1401 petition,

which is that it was unaware of both the assessments in arrears totaling $50,000 and the

conversion when the judgment of foreclosure and order confirming the sale was entered, is

not persuasive. As Building Corporation maintains on appeal, its answer to the complaint

raises an affirmative defense of priority. In its answer, Building Corporation asserted that

CitiMortgage executed the recognition agreement, which states in relevant part:

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“12. In the event the Corporation or the Bank conducts any sale or makes any other

disposition of the Collateral (collectively, the ‘Sale’) pursuant to a default by the

Borrower, the party conducting the Sale shall first be entitled to receive the reasonable

expenses of the Sale after which the proceeds from the Sale shall be distributed as

follows:

(i) First, to the Corporation to pay sums due under the By-Laws and the Proprietary

Lease (including legal fees and costs)

(ii) Then to the Bank to pay the Indebtedness

(iii) Then to the Corporation or the Borrower as provided in the By-Laws or the

ProprietaryLease provided, that, if the Bank pays the Corporation all amounts due under

the By-Laws and the Lease and continues to pay such amounts as they become due, the

Corporation shall not issue a new Certificate, enter into a new Lease or sell or otherwise

dispose of the Collateral for an amount less than the sum of the amount of the Borrower’s

obligation to the Bank and the amount owed the Corporation under the Lease and the ByLaws, without the Bank’s prior written approval.”

CitiMortgage consented to the recognition agreement when it executed the agreement on

December 19, 2003. Also in its answer, Building Corporation stated that the amount owed

to it as of October 9, 2009, was $18,934.79 in past-due assessments, charges and fees, which

was detailed in an attached affidavit. Because CitiMortgage executed the recognition

agreement and the amount of assessment in arrears as of October 9, 2009, was disclosed in

BuildingCorporation’s answer, we disagree with CitiMortgage’s contention that the amount

of assessments, attorney fees and costs owed as of September 2, 2010, constitutes newly

discovered evidence. CitiMortgage was on notice that a risk existed that it would be subject

to past-due assessments and fees, and that the assessments and fees continued to accrue

during the pendency of the proceedings. Thus, CitiMortgage had the duty to exercise due

diligence to remain abreast of the amount of fees accruing throughout the proceedings and

cannot successfully assert its lack of knowledge regarding the amount of assessments and

fees accrued as a meritorious defense or claim.

¶ 23 Similarly, CitiMortgage fails to raise a meritorious defense or claim regarding the

cooperative building’s conversion into condominiums. The basis of CitiMortgage’s

meritorious defense or claim, here, is that had it known about the conversion process and the

required buy-in amount, it would not have proceeded to the judicial sale, and it would have

vacated the judgment of foreclosure and dismissed the foreclosure action at that time.

CitiMortgage, however, does not establish that the trial court would not have entered the

order confirming the sale had the conversion information been presented to the trial court.

CitiMortgage’s asserted meritorious defense or claim is that it would not have proceeded

with the sale had it known about the conversion and the associated costs.

¶ 24 CitiMortgage also claims that Building Corporation had an affirmative duty to inform it

that plans were in progress to convert the cooperative apartments into condominiums, and

because it failed to provide the relevant information to CitiMortage, the newly discovered

evidence provides it with a meritorious defense or claim. We disagree.

¶ 25 We note that in an e-mail dated October 29, 2010 to CitiMortgage’s attorney, the

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cooperative building’s president, Lee Ann Cummings, stated that the conversion had been

on-going for the last two years, and that the cooperative sent all documents relating to the

conversion to CitiMortgage. The e-mail also stated that on March 8, 2010, “a vote was taken

of the shareholders and a super-majority voted to move forward with the conversion to a

condominium and dissolve the cooperative.” Thus, the record reveals that Building

Corporation claims to have notified CitiMortgage of the impending conversion. This claim,

however, is rebutted by CitiMortgage’s attorney’s affidavit that was attached to

CitiMortgage’s section 2-1401 petition where the attorney stated that his communication

with Cummings on October 29, 2010 was the first time that he or CitiMortgage became

aware of the conversion process and that the assessments in arrears totaled $50,000. Because

a transcript of the hearing on the section 2-1401 petition is not included in the record, we

cannot conclude how in-depth this e-mail and the affidavit were discussed during the

hearing. However, the e-mail and affidavit were attached to CitiMortgage’s section 2-1401

petition and we, thus, conclude that the trial court reviewed and considered the content of the

e-mail and affidavit and placed appropriate weight on those documents. Moreover,

CitiMortgage fails to present case law supporting its position that Building Corporation had

an affirmative legal duty to disclose to it and the trial court its future plans concerning the

property.

¶ 26 CitiMortgage relies on Department of Conservation v. Cipriani, 202 Ill. App. 3d 986

(1990), to support its claim that errors in property valuation create a meritorious defense, but

its reliance is misplaced. In Cipriani, this court held that the trial court erred in denying the

petitioner’s section 2-1401 petition because newly discovered evidence resulting from a

subsequent letter of map revisions (LOMR) revealed that the petitioner’s property was

previously devalued when it was erroneously included in a flood plain based on a flood

insurance study completed by the United States Soil Conservation Service. Id. at 991. This

court reasoned that the trial court undoubtedly would have given the prior flood insurance

study great weight since the study was conducted by a federal agency. Id. at 992. The

subsequent LOMR, however, indicated that the prior flood insurance study was wrong. Id.

at 991. Thus, the Cipriani court concluded that the subsequent LOMR was newly discovered

evidence. The facts in Cipriani are clear that neither the parties nor the trial court knew when

the judgment was entered that the prior LOMR was inaccurate, and all parties relied upon

that report. In contrast, CitiMortgage in the case sub judice contends that Building

Corporation knew, when the order confirming the sale was entered, that the cooperative

building would be converted into condominiums. Thus, CitiMortgage cannot assert that

neither party knew of the information that it claims was newly discovered. Also,

CitiMortgage does not present evidence that it and the trial court relied upon a third-party

prepared document that was subsequently discovered to be erroneous. For these reasons,

Cipriani is distinguishable.

¶ 27 Moreover, CitiMortgage fails to persuade this court that its meritorious defense or claim

based on newly discovered evidence is of the nature that customarilywarrants relief pursuant

to section 2-1401. For example, in Blutcher v. EHS Trinity Hospital, 321 Ill. App. 3d 131,

140 (2001), this court held that a meritorious defense existed where the plaintiff’s attorney

settled a case, but it was subsequently learned that he did not have the plaintiff’s authority

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or consent to settle. Also, in Sunderland v. Portes, 324 Ill. App. 3d 105, 111 (2001), this

court held that minors satisfied the requirements of a section 2-1401 petition by presenting

new facts establishing that the trial court knew during the underlying proceeding that the

minors’ attorneys withdrew, but the trial court did not know that the minors’ parents would

never obtain new counsel and do nothing to protect the minors’ interest. However, in

Physicians Insurance Exchange v. Jennings, 316 Ill. App. 3d 443, 458 (2000), the petitioner

sought to vacate a judgment claiming that it dismissed its appeal on the belief that its

opponent’s motion for costs rendered the appeal premature. The Jennings court held that the

petitioner’s misunderstanding of its opponent’s motion was a procedural mistake of law,

which did not provide a sufficient ground to vacate a judgment, and that its opponent’s

attorney had no obligation to inform it that the appeal was not premature, but timely. Id.

¶ 28 Here, CitiMortgage claims that because it did not know of the cooperative building’s

future plans for conversion, the judgment of foreclosure should be vacated since its acquired

interest is now rendered worthless unless it incurs additional costs to purchase the

condominium. CitiMortgage also claims that Building Corporation knew about the

conversion plans, but did not reveal those plans to it or the trial court so that proper decisions

could be made prior to the sale. CitiMortgage’s allegations all have the common element that

it potentially would not have made the decision to continue with the foreclosure and sale

proceedings had it known about the amount of assessments in arrears and the conversion.

CitiMortgage, however, does not establish that the trial court would not have entered the

judgment or order confirming the sale had it known about that same information. Also,

CitiMortgage does not contend that Building Corporation prevented it from independently

discovering the information regarding the amount of assessments past-due and the future

conversion plans. Furthermore, we note that CitiMortgage did not file a response to Building

Corporation’s motion to vacate the judgment of foreclosure wherein it asserted its priority

over CitiMortgage. In the instant case, the trial court did not abuse its discretion in denying

CitiMortgage’s section 2-1401 petition because CitiMortgage failed to present a meritorious

defense or claim by a preponderance of the evidence. Moreover, because CitiMortgage

executed the recognition agreement, and Building Corporation raised priority as an

affirmative defense in its answer and filed its motion to vacate the judgment asserting priority

before the trial court entered its order confirming the sale, the trial court did not abuse its

discretion in refusing to invoke its equitable jurisdiction to vacate the judgment of

foreclosure entered in CitiMortgage’s favor.

¶ 29 CitiMortgage next contends that the trial court’s September 2, 2010 order amending the

judgment of foreclosure contradicts with the trial court’s August 10, 2010 order confirming

the sale, which was not vacated or amended. The order confirming the sale stated that “all

claims of parties to the foreclosure are hereby terminated and barred pursuant to 735 ILCS

5/15-1509(c) including all Co-op assessments, charges and fees. Plaintiff shall be responsible

for future amounts only after issuance of the aforesaid documents.” Although CitiMortgage

is correct that the order confirming the sale was not expressly amended, the trial court did,

subsequent to entering that order, amend the judgment of foreclosure, which amended the

priority among the parties and, thus, directly impacted the order confirming the sale. Also,

in the September 2, 2010 order wherein the trial court amended the judgment of foreclosure,

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it struck BuildingCorporation’s motion to disapprove the report of sale. When the trial court

subsequently amended the judgment of foreclosure, it effectively amended the order

confirming the sale because the amended judgment of foreclosure now rendered Building

Corporation’s interest superior to CitiMortgage’s interest. No confusion is created between

the two conflicting orders as all parties know and understand that the subsequent amended

judgment of foreclosure is the controlling document. CitiMortgage further contends that

Building Corporation did not amend and assert its right of priority until after the trial court

entered its order confirming the sale 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 judgment of

foreclosure until after it entered its order confirming the sale, contrary to CitiMortgage’s

claim, BuildingCorporation did file its motion to vacate asserting its priority rights two days

before the trial court entered its order confirming the sale on August 12, 2010. Accordingly,

the trial court’s amended judgment of foreclosure is not rendered invalid because it conflicts

with the previously entered order confirming the sale.

¶ 30 Finally, CitiMortgage claims that Building Corporation failed to provide it with notice

of the conversion as set forth in the bylaws since it owned 66 shares in the corporation and

that this failure of notice constitutes a change in circumstances warranting the granting of its

section 2-1401 petition. CitiMortgage contends that the failure to provide the required notice

is tantamount to fraud because it was denied information necessary to determine whether it

should proceed with the foreclosure action.

¶ 31 Although Building Corporation issued a certificate representing ownership of 66 shares

of capital stock to CitiMortgage before entryof the judgment of foreclosure and order of sale,

we note that this is the request for reliefset forth in CitiMortgage’s complaint. CitiMortgage

claims that Building Corporation prematurely issued to it the 66 shares in the cooperative

building on November 10, 2009, and because Building Corporation did so, it was entitled to

notice of the conversion and meetings in accordance with the bylaws. As previously stated,

both the e-mail from Cummings stating that CitiMortgage received notice of the conversion

plan and CitiMortgage’s counsel’s affidavit averring that he and CitiMortgage had no notice

of the conversion process were presented to the trial court for its consideration. We note that

the record is devoid of evidence indicating that CitiMortgage exercised due diligence before

participating in the foreclosure sale and seeking an order confirming the sale by requesting

information concerning the current amount of assessments in arrears and inquiring about any

future plans involving the property. The record is also devoid of evidence demonstrating that

Building Corporation purposely concealed and withheld information that CitiMortgage

requested, which would have been tantamount to fraud. Accordingly, no change in

circumstances occurred that warrants the granting of CitiMortgage’s section 2-1401 petition.

¶ 32 CONCLUSION

¶ 33 Forthe reasons stated, we affirm the trial court’s denial of CitiMortgage’s section 2-1401

petition.

¶ 34 Affirmed.

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