2015 IL App (1st) 142925 

FIRST DIVISION

June 1, 2015 

No. 1-14-2925 

WELLS FARGO BANK, N.A.,

Plaintiff-Appellee,

v. 

BERNADETTE DILLARD SIMPSON,

Defendant-Appellant 

(Unknown Heirs and Legatees of Paula Dillard, Deceased; 

Unknown Owners and Nonrecord Claimants; Gerald Nordgren

as Personal Representative for Paula Dillard, Deceased,

Defendants). 

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Appeal from the Circuit 

Court of Cook County. 

 

No. 11 CH 36741 

Honorable 

Alfred M. Swanson, Jr., 

Judge Presiding. 

 PRESIDING JUSTICE DELORT delivered the judgment of the court, with opinion. 

 Justices Connors and Harris concurred in the judgment and opinion. 

OPINION

¶ 1 This case presents two questions regarding property law. The first issue involves the 

rights of heirs of deceased mortgagors under consumer-oriented mortgage foreclosure loss 

mitigation programs under our supreme court’s ruling in ABN AMRO Mortgage Group, Inc. v. 

McGahan, 237 Ill. 2d 526 (2010), a case which precipitated the adoption of Illinois Supreme 

Court Rule 113 (Ill. S. Ct. R. 113 (eff. May 1, 2013)). The second is a quirky deed recording 

issue which has vexed title examiners, real estate lawyers, and courts since time immemorial. It 

involves the lien priority of a mortgagee when its mortgagor executes successive deeds to 

different grantees, but then records them out of chronological order. 
No. 1-14-2925 

2 

¶ 2 Paula Dillard purchased a home located in Buffalo Grove, Illinois in 1991. She died in 

2008. In 2011, her mortgage lender filed this foreclosure lawsuit because the loan was 

delinquent. The lawsuit was eventually amended to name Dillard’s granddaughter, Bernadette 

Dillard Simpson, as a defendant. Simpson claimed that ownership of the home had passed to her 

on Dillard’s death. Simpson filed an answer to the amended complaint, but she failed to respond 

to the lender’s summary judgment motion and lost the case. She tried to undo the resulting 

foreclosure by filing several motions to vacate and challenging the sale of the property at the 

judicial sale. We agree with the circuit court that she has provided an insufficient basis to vacate 

the foreclosure or invalidate the sale, and therefore affirm.

¶ 3 BACKGROUND

¶ 4 In the 17 years between 1991 and her death in 2008, Dillard executed no less than 10 

successive mortgages with various lenders.

1

 The chain of title reveals that each mortgage, 

except the last one involved in this case, was released at or about the time the next was executed, 

indicating that the 10 mortgages represented a continuous series of refinancings. In 2003, a few 

months after executing the seventh mortgage in her individual capacity, she deeded the property 

into a trust wherein she was named as the trustee, apparently as part of an estate plan. 

¶ 5 Although this case involves the foreclosure of Dillard’s tenth mortgage, her actions 

around the time she signed the eighth mortgage in 2004 frame the issues before us. Simpson 

argues that an out-of-order recording happened through no fault of her own, but rather by a 

sluggish lender or title company. The record, however, does not reveal whether Dillard 

 

1

 We take most of the facts from the record of the proceedings below, but take some 

from the on-line records of the Cook County recorder of deeds, of which we can take judicial 

notice. JP Morgan Chase Bank, N.A. v. Bank of America, N.A., 2014 IL App (1st) 140428, ¶ 44 

n.5. 
No. 1-14-2925 

3 

personally undertook these actions, or whether they were done by someone else on her behalf or 

at her direction. For simplicity of expression only, we attribute them all to her. We also follow 

the presumption that Dillard (personally or as trustee) executed and delivered the deeds to the 

respective grantees on the dates shown on the face of the deeds. Calligan v. Calligan, 259 Ill. 

52, 59 (1913) (in the absence of proof to the contrary, the presumption is that a deed was 

executed and delivered on the day it is dated); Berigan v. Berrigan, 413 Ill. 204, 214 (1952) 

(applying Calligan).

¶ 6 The relevant actions are as follows:

Date Action

July 22, 2004 Dillard, as trustee, executes a deed from the trust to herself 

personally, but does not record it immediately (first deed).

August 5, 2004 

Dillard, in her personal capacity, executes a quit claim deed 

back to the trust, but does not record it immediately (second 

deed).

August 12, 2004 Dillard records the second deed.

August 24, 2004 

Despite the fact she had already signed the second deed 

transferring the property back into the trust on August 5 and 

recorded it on August 12, Dillard now records the first deed. 

The recording number is 0423705368. 

August 24, 2004 

Dillard records the eighth mortgage on the property with 

MERS2 as mortgagee. The mortgage receives recording 

number 0423705369, indicating that it was recorded just after 

the first deed as part of the closing of the eighth mortgage. 

This mortgage was released on May 24, 2006. 

April 26, 2006 Dillard signs a ninth mortgage in her personal capacity. This 

mortgage was released on July 30, 2007. 

 

2

 “MERS” stands for Mortgage Electronic Registration System.
No. 1-14-2925 

4 

July 24, 2007 

Dillard signs a tenth mortgage with Wachovia Mortgage 

Company in her personal capacity. That is the mortgage at 

issue in this case. On November 18, 2009, Wachovia assigned 

the mortgage to plaintiff Wells Fargo Bank, N.A. (Wells 

Fargo).

¶ 7 It appears that the lender for the eighth mortgage required Dillard to temporarily deed the 

property out of the trust to ensure that title was vested in Dillard personally when she signed that 

mortgage. The problem before us was created when the second deed, back to her trust, was 

recorded out of chronological order. While the first deed “sat in a drawer,” it was supplanted by 

the second deed, which was recorded first. Accordingly, when Dillard signed the eighth 

mortgage in her personal capacity, she had already deeded the property back to her trust and that 

deed had been recorded. Common loan closing procedures contain safeguards to ensure this is 

not supposed to happen. Presumably, when Dillard signed the eighth mortgage in her personal 

capacity, she simultaneously executed a standard affidavit of title incorrectly (or falsely) 

certifying she was unaware of any unrecorded deeds. See generally Joseph R. Fortunato, Jr., 

Representing the Seller, in Residential Real Estate § 2.33 (Ill. Inst. for Cont. Legal Educ. 2011). 

Apparently due to the closeness in time between August 12 and August 24, and in reliance on the 

affidavit of title, the loan for the eighth mortgage closed without Wells Fargo or the title insurer 

noticing that Dillard had already deeded the property back to the trust. The recorded chain of 

title showed Dillard, not the trust, as the last grantee. That remains the status quo even today. 

Accordingly, Dillard proceeded to sign and obtain a ninth and tenth mortgage in her personal 

capacity notwithstanding the fact that the last executed deed granted the property to her trust. 

¶ 8 When Wells Fargo sued to foreclose the tenth mortgage in 2011, it did not know that 

Dillard was deceased. After it learned of her demise, it determined that there was no probate 
No. 1-14-2925 

5 

estate opened for her – despite the fact that she had died three years earlier. Accordingly, it 

moved to amend the complaint to name defendant Gerald Nordgren as a special representative in 

her stead. See 735 ILCS 5/13-209 (West 2010). On January 31, 2012, the court granted that 

motion and specifically substituted Nordgren, in his representative capacity, as a defendant in 

place of Simpson. Nordgren conducted an investigation which confirmed that there was no 

probate estate opened for Dillard. He also discovered a published obituary which stated that 

Dillard was survived by unnamed “children, grandchildren, and great-grandchildren.” Nordgren 

located only two possible heirs whom he could identify by name: Alan Dillard, a son, and 

Simpson, whom he discovered was living at her dead grandmother’s property, and whom 

Nordgren’s associate actually interviewed. Based on his investigation and the fact that no one 

had stepped forward to defend the foreclosure case, Nordgren recommended the case proceed as 

a default. Wells Fargo then filed a second amended complaint on July 3, 2012 which added 

Simpson as a defendant. See 735 ILCS 5/15-1501(b) (West 2012) (providing that a resident or 

tenant is a permissible party to a foreclosure case). The record does not reveal why Alan Dillard 

was not also named as a defendant in the second amended complaint. 

¶ 9 Simpson filed a pro se appearance and an answer, in which she admitted most of the 

allegations of the second amended complaint but claimed lack of knowledge regarding the 

allegation that the mortgage was in default. The answer contained no affirmative defenses 

whatsoever. Particularly absent from her answer, which she never tried to amend even after later 

being represented by counsel, was any defense relating to the out-of-order deed and the void lien 

issue which forms the basis for her present appeal. (We recognize that an amended answer 

might have been untimely since she had already lost the case on the merits, but including a 

proposed amended answer with a properly pled affirmative defense would have added support to 
No. 1-14-2925 

6 

her motion to vacate and persuaded the court that the motion was not simply a delay tactic.) She 

also filed an application to sue as a poor person, stating she had been unemployed since 2008, 

which the court granted. 

¶ 10 On February 22, 2013, while this case was pending below, our supreme court 

promulgated Rule 114 (Ill. S. Ct. R. 114 (eff. May 1, 2013)). This rule requires that motions for 

judgment in a foreclosure case include a loss mitigation affidavit attesting to the efforts expended 

to comply with any specifically required loss mitigation programs. On March 21, 2013, before 

the rule’s May 1 effective date, Wells Fargo filed a motion for summary judgment which did not 

include a Rule 114 affidavit. The circuit court set the motion for hearing on May 21, 2013. In 

the meantime, on April 8, 2013, the supreme court rules committee amended the committee 

comments to Rule 114 to specifically clarify that the affidavit was required for a foreclosure 

motion in any pending case regardless of whether the case was commenced was pending on May 

1, 2013. Ill. S. Ct. R. 114, Committee Comments (adopted Apr. 8, 2013). Because this 

clarifying amendment also became effective on May 1, 2013, some foreclosure motions filed but 

not yet presented for hearing were no longer viable and had to be amended to comply with the 

new affidavit requirement. On May 21, the court entered a written order noting that Wells Fargo 

withdrew its motion without prejudice because it did not contain a Rule 114 affidavit. Simpson 

was present at the May 21 hearing. 

¶ 11 Apparently because either the circuit court or Wells Fargo later realized that such an 

affidavit was meaningless in a case involving a deceased mortgagor, Wells Fargo refiled the 

motion without a Rule 114 affidavit on May 31, 2013, and noticed it for hearing on July 30, 

2013. Simpson claims that the motion was heard ex parte, but the certified proof of service in 

the record demonstrates that Wells Fargo’s counsel sent timely notice of the motion to Simpson 
No. 1-14-2925 

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after it reset the motion for hearing. See Cook Co. Cir. Ct. R. 2.1(c)(i) (Aug. 21, 2000) 

(requiring five business days’ notice for motions sent by mail). Therefore, it was not heard ex 

parte. See Black’s Law Dictionary 657 (9th ed. 2009) (an ex parte hearing is held “without 

notice to” the opposing party.) Simpson did not appear at the summary judgment hearing, and 

she has provided no explanation why she did not. 

¶ 12 On July 30, 2013, the circuit court granted summary judgment to Wells Fargo and 

entered an order of foreclosure and sale. The order included language indicating that it was final 

and appealable under Supreme Court Rule 304(a). Ill. S. Ct. R. 304(a) (eff. Feb. 26, 2010). 

Dillard harangues Wells Fargo’s law firm for including this language and complains doing so 

was improper, but that is not so. Rule 304(a) allows a court the discretion to make an order 

appealable which does not terminate the case but which nonetheless is a final judgment as to one 

of the claims in the case. The rule states, in part “an appeal may be taken from a final judgment 

as to one or more but fewer than all of the parties or claims only if the trial court has made an 

express written finding that there is no just reason for delaying either enforcement or appeal or 

both.” Id. While a foreclosure order does not entirely terminate a case because the court must 

still sell the property and confirm the sale, it is final as to the foreclosure claims for relief within 

the meaning of Rule 304(a) in that it terminates (or “forecloses”) the defendant’s basic 

ownership interest in the property. Accordingly, an order of foreclosure and sale can be subject 

to an interlocutory appeal if the court order includes Rule 304(a) language. In re Marriage of 

Verdung, 126 Ill. 2d 542, 555 (1989); North Community Bank v. 17011 South Park Ave., LLC, 

2015 IL App (1st) 133672, ¶¶ 7, 11, 29 (noting that “[i]ncluding interlocutory appeal language in 

foreclosure orders is relatively uncommon, but nonetheless allowable”).
No. 1-14-2925 

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¶ 13 Shortly after the circuit court granted summary judgment in favor of Wells Fargo, 

Simpson, through a newly retained attorney, filed the first of three motions to vacate the 

summary judgment and the corresponding order of foreclosure and sale. In her first motion, filed 

August 29, 2013, Simpson alleged, among other things, that: (1) she was the executor of 

Dillard’s estate and that fact had been a matter of “public record” for several years; (2) she paid 

on the mortgage for some time after Dillard’s death and had tried to refinance her grandmother’s 

loan; (3) she lived at the property; and (4) she was frustrated at Wells Fargo’s refusal to “put the 

deed” to the property into her own name. She requested that the court not only vacate the 

foreclosure order, but also order Wells Fargo to comply with various loss mitigation programs 

applicable to mortgagors. Despite the fact she had no pending counterclaim requesting such 

relief, she also demanded that the court declare her to be the owner of the property. Again, we 

note that she was named as a defendant only in her personal capacity because she was an 

occupant and potential heir; she never intervened into the case in the capacity as a trustee or 

executor. The court denied her first motion to vacate on September 9, 2013. 

¶ 14 On October 11, 2013, Simpson filed a second motion to vacate, raising similar arguments 

as in her first motion. The motion was labeled as a motion to reconsider the denial of the first 

motion to vacate.3

 Simpson’s second motion added a new argument – that the mortgage was 

void because the mortgagor, Dillard, had no ownership interest in the property when she signed 

 

3

 It was procedurally improper for Dillard to file more than one motion to vacate or 

reconsider the foreclosure order, because the July 30, 2013 order contained Rule 304(a) language 

making it final and appealable. See Ill. S. Ct. R. 274 (eff. Oct. 14, 2005); Sears v. Sears, 85 Ill. 

2d 253, 258-59 (1981) (a second post-judgment motion is not authorized by statute or supreme 

court rule and must be denied). However, to provide a complete review of all the issues 

presented, and because the court later vacated the Rule 304(a) language from the foreclosure 

order, we will excuse this potential forfeiture issue and review the second motion to vacate on 

the merits. See infra ¶ 16. 
No. 1-14-2925 

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the mortgage – only her trust did. Accordingly, Simpson argued, Wells Fargo had no valid lien 

on the property. 

¶ 15 The circuit court stayed the sale during the briefing of the second motion to vacate. On 

November 22, 2013, after briefing, the court denied the second motion to vacate and dissolved 

the stay of the sale. However, on January 28, 2014, Simpson filed a third motion to vacate, 

raising similar issues as she did in her earlier two motions. Simpson’s first, second, and third 

motions to vacate included no copy of Dillard’s will, Dillard’s trust, an affidavit of heirship, or 

any other documents demonstrating that Simpson had acquired title to the property, other than 

her own conclusory affidavit to that effect. Wells Fargo noted this glaring omission in response 

to the motions, but Simpson never cured the problem by presenting that documentation. 

Accordingly, the appellate record now before us is bereft of any of these critically important 

documents. Simpson also filed a motion to compel discovery of materials related to her 

unsuccessful loan modification efforts, a motion which was doubly problematic because: (1) she 

had no right to modify her late grandmother’s loan; and (2) discovery relating to anything other 

than the conduct of the sale was irrelevant because she had already lost the case. See Parkway 

Bank & Trust Co. v. Korzen, 2013 IL App (1st) 130380, ¶ 60 (affirming denial of belated 

discovery request because “when the foreclosure has been entered, the defendant has lost the 

case for all intents and purposes”). On February 4, 2014, the court denied the third motion to 

vacate and the motion to compel discovery.

¶ 16 The property did not sell for enough to pay the outstanding balance on the mortgage, 

resulting in a deficiency. See 735 ILCS 5/15-1508(e) (West 2012). Wells Fargo moved for 

confirmation of the sale. Simpson opposed this motion, essentially repeating, for a fourth time, 

the same bases she used to attack the foreclosure order three times earlier. The circuit court 
No. 1-14-2925 

10 

again rejected Simpson’s defenses. It issued a written opinion on September 22, 2014, finding 

that the last recorded deed in the chain of title at the time Dillard signed the mortgage granted the 

property to Dillard personally, and that therefore the mortgage was a valid lien against the real 

estate. 

¶ 17 In the same opinion, the circuit court, acting sua sponte, vacated the language in the 

original foreclosure order making it final and appealable under Rule 304(a). The court stated 

that language was included “inadvertently” and that it “determined” that it had been “erroneously 

included.” As we explained in North Community Bank, 2015 IL App (1st) 133672, ¶¶ 11, 29, 

including Rule 304(a) language in foreclosure orders is generally disfavored, because courts 

recognize that many foreclosure defendants do not truly appreciate the importance of judicial 

proceedings and do not appear to defend themselves until late in the process. However, because 

a case with a deceased mortgagor does not implicate that policy concern, lenders will often 

include the language in foreclosure orders involving deceased mortgagors. The original 

foreclosure order had been entered on July 30, 2013, so it became final when no appeal was filed 

by August 29, 2013, 30 days later. See Ill. S. Ct. R. 303(a)(1) (eff. May 30, 2008). Accordingly, 

Wells Fargo should have been able to justifiably rely on the fact that the order could never be 

appealed. Doubtless, the trial court judge vacated the Rule 304(a) language not only because it 

had been “inadvertently” included in the original order, but also to ensure Simpson could create a 

full record and avoid jurisdictional problems on appeal. Nonetheless, retroactively changing the 

rules of the game in this manner to Wells Fargo’s detriment raises a legitimate jurisdictional 

question. However, because: (1) the situation is so unusual; (2) the court specifically found the 

Rule 304(a) language was “inadvertently” included; (3) Wells Fargo revested the court with 

jurisdiction by continuing to litigate on the merits while failing to object on this basis (see People 
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v. Kaeding, 98 Ill. 2d 237, 241 (1983)); and (4) the ultimate result would be the same under 

either approach, we will review the appeal of the motions to vacate on the merits. 

¶ 18 The order confirming the sale terminated the case on September 22, 2014, and this appeal 

followed. 

¶ 19 ANALYSIS

¶ 20 On appeal, Simpson contends that the trial court erred by: (1) refusing to vacate the 

judgment of foreclosure and sale on the basis that the lender’s failure to issue a Rule 114 

affidavit was fatal to its ability to foreclose; (2) refusing to vacate the judgment of foreclosure 

and sale on the basis of the allegedly ineffective lien; and (3) confirming the sale 

notwithstanding the ineffective lien and the lack of a Rule 114 affidavit. 

¶ 21 Our consideration begins with a review of the law applicable to foreclosure cases 

involving a deceased mortgagor. Our supreme court recently recognized that the Illinois 

Mortgage Foreclosure Law (735 ILCS 5/15-1501 et seq. (West 2012)) “fails to address what 

procedure a mortgagee must follow or who must be named, if anyone, in lieu of the mortgagor, 

when the mortgagor is deceased.” McGahan, 237 Ill. 2d at 532. The court further stated that 

because the Mortgage Foreclosure Law is silent as to the requirements to follow where the 

mortgagor is deceased, “we would normally look to the general rules of civil procedure to 

ascertain what would be required.” Id. Under those rules, a lawsuit filed against a deceased 

person is a nullity and does not confer jurisdiction on the court. Id. at 529. The McGahan court 

explained that mortgage foreclosure cases are quasi in rem proceedings and thus cannot proceed 

without someone named as a defendant who represents the deceased mortgagor. Where a court 

has duly appointed an executor or administrator of the decedent’s estate, that person is named in 

substitution for the deceased. However, when there is no executor or administrator, to avoid the 
No. 1-14-2925 

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nullity rule “and confer jurisdiction on the circuit court, a [foreclosure] plaintiff may proceed 

under section 13-209 of the Code of Civil Procedure and substitute the deceased party’s personal 

representative.” Id. 

¶ 22 A few years after it issued McGahan, our supreme court promulgated Rule 113, 

recognizing that after McGahan, the legislature had not amended any statutes to facilitate or 

regulate the naming of special representatives for deceased mortgagors. Ill. S. Ct. R. 113(i) (eff.

May 1, 2013). The rule provides in part: 

“In all mortgage foreclosure cases where the mortgagor or 

mortgagors is or are deceased, and no estate has been opened for 

the deceased mortgagor(s), the court shall, on motion of a party, 

appoint a special representative to stand in the place of the 

deceased mortgagor(s) who shall act in a manner similar to that 

provided by section 13-209 of the Illinois Code of Civil Procedure 

(735 ILCS 5/13-209).” 

The court below complied with Rule 113(i) and sections 2-1008(b)(2) and 13-209 of the Code of 

Civil Procedure (735 ILCS 5/2-1008(b)(2), 13-209 (West 2012)) by appointing Gerald Nordgren 

as special representative. 

¶ 23 Appointment of the special representative was necessary because Simpson is not, as she 

repeatedly has claimed, the executor of Dillard’s estate. Under paragraph 3(L) of the second 

amended complaint, Simpson was not named as a defendant in any representative capacity, but 

rather only because she was “believed to be an heir of Paula Dillard, deceased, and may have 

some interest in the subject real estate [which is] subordinate and inferior to the interest of the 

Plaintiff herein.” 
No. 1-14-2925 

13 

¶ 24 Simpson’s affidavit in support of her motion to vacate asserted that Dillard executed a 

will naming Simpson as executor, that the will was duly filed with the clerk of the circuit court 

of Cook County, and that she is the executor of Dillard’s estate. She claims that because the will 

was a “public record,” Wells Fargo had constructive knowledge of her status as executor. 

However, merely filing a will neither creates a decedent’s estate nor makes someone an executor. 

An executor is named only after an estate case is opened, the court admits the will to probate by 

order, and then enters a second order declaring someone to be the executor. 755 ILCS 5/6-4, 6-8 

(West 2012). Nothing in the record shows that anyone ever opened a probate estate for Dillard, 

and the on-line docket of the clerk of the circuit court of Cook County shows that no estate was 

ever opened for her.

4

 In fact, the Probate Act of 1975 (755 ILCS 5/1-1 et seq. (West 2012))

specifically provides that Simpson may now be disqualified from ever serving as executor 

because she failed to request the will be admitted to probate within 30 days of filing it with the 

court. The applicable statute reads: 

“Within 30 days after a person acquires knowledge that he is 

named as executor of the will of a deceased person, he shall either 

institute a proceeding to have the will admitted to probate in the 

court of the proper county or declare his refusal to act as executor. 

If he fails to do so, except for good cause shown, the court on its 

motion or on the petition of any interested person may deny him 

 

4

 We may take judicial notice of the on-line docket report of probate division filings 

issued by the clerk of the circuit court of Cook County. See, e.g., All Purpose Nursing Service v. 

Human Rights Comm’n, 205 Ill. App. 3d 816, 823 (1990) (citing People v. Davis, 65 Ill. 2d 157 

(1976)); Boston v. Rockford Memorial Hospital, 140 Ill. App. 3d 969, 972 (1986). The docket 

report is a matter of record which this court may take judicial notice, and its contents are not 

difficult to ascertain.
No. 1-14-2925 

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the right to act as executor and letters of office may be issued by 

the court as if the person so named were disqualified to act as 

executor.” 755 ILCS 5/6-3(a) (West 2012). 

¶ 25 Simpson could have supplanted Nordgren’s involvement by opening an estate for her 

grandmother, but she did not do so. Accordingly, only Nordgren, not Simpson, was a proper 

representative for Dillard in this foreclosure case. See Ill. S. Ct. R. 113(i) (eff. May 1, 2013). 

¶ 26 That brings us to the issue of Simpson’s standing to challenge anything regarding the 

foreclosure of Dillard’s mortgage in light of Nordgren’s appointment as special representative. 

As noted above, we have no copy of the will or trust to discern what, if any, powers either 

document bestowed upon Simpson. Additionally, this matter is clearly one that should have 

been pled as an affirmative defense, and her answer contains no such defense.

¶ 27 For the sake of discussion, we will assume Dillard’s will contained a standard pour-over 

trust provision. Persons often place their property into a revocable inter vivos trust to facilitate 

transfer on death and avoid probate. “An inter vivos trust is defined as a transfer of property 

during the lifetime of the settlor and to become effective in his lifetime as contrasted with a 

testamentary trust which takes effect at the death of the settlor.” Kahn v. First National Bank of 

Chicago, 216 Ill. App. 3d 272, 278 n.1 (1991). The companion provision, a pour-over trust, is “a 

provision in a will in which the testator leaves the residue of his estate to a trustee of [an inter 

vivos] trust for purpose of that pour-over trust.” Kahn, 216 Ill. App. 3d at 278 n.2. Under 

Illinois law, real estate devised under a will passes directly to the devisee on the death of the 

testator. Trustees of Schools v. Clippinger, 404 Ill. 202, 204 (1949). “ ‘[T]itle to real property 

passes to, and vests in, the devisees immediately on the testator’s death and not at the probate of 

the will,’ ” unless the will postpones the vesting of title. In re Estate of Hall, 127 Ill. App. 3d 
No. 1-14-2925 

15 

1031, 1034 (1984) (quoting 96 C.J.S. Wills § 1099, at 821 (1957)); see also Ill. Rev. Stat. 1981, 

ch. 30, ¶ 505(a) (now 760 ILCS 15/5(a) (West 2012)) (providing that an asset becoming subject 

to the trust by reason of a will becomes subject to the trust as of the date of the death of the 

testator even though there is an intervening period of administration). 

¶ 28 Under this authority, if we were to take Simpson’s conclusory assertions at face value, 

she came into title upon Dillard’s death, subject, of course, to any valid liens. However, mere 

ownership is not enough, because Simpson did not carry out the steps necessary to perfect that 

ownership in any public records. We acknowledge that special representative Nordgren never 

“owned” the property. However, his presence gave the court subject matter jurisdiction. 

McGahan, 237 Ill. 2d at 537-38. As we have no copy of the will or trust, the record before us 

only supports Nordgren’s ability to stand in place of Simpson in this foreclosure litigation. 

Simpson criticizes Wells Fargo for insisting that she should have produced a copy of the will in 

the court below, and derides Wells Fargo’s argument about the missing will as a mere “gripe.” 

She reasons that because the will was a “public record,” there was no need for her to produce it. 

Far from being a “gripe,” it is the proverbial elephant in the courtroom. We are perplexed why 

Simpson relies so strongly on the will but has never produced it. It is certainly true that a court 

can take judicial notice that a will has been filed with the probate court. In re Estate of Gebis, 

186 Ill. 2d 188, 196 (1999) (citing In re W.S., 81 Ill. 2d 252, 256-57 (1980)). It is equally true 

that a court can take notice that no estate has been opened to admit the will to probate. Id. 

However, taking such notice of a document simply means that there is no need to submit formal 

proofs regarding its authenticity. It does not mean that a court can take a party’s word for what 

the document contains without a copy of the document actually being produced. 
No. 1-14-2925 

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¶ 29 Without seeing the actual will and trust, we cannot determine whether Simpson in fact 

inherited the property or whether, for instance: (1) the property was ever placed in the trust; and

(2) the trust reserved to Dillard the power while she was alive to mortgage the property in her 

own name notwithstanding the disposition of the property into the trust. Accordingly, we must 

presume the trial court acted correctly with respect to issues related to the content of the will and 

trust. Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92 (1984) (appellant has the burden to present 

sufficiently complete record of the trial court proceedings to support claim of error; without such 

record, this court will presume trial court acted correctly).

¶ 30 That analysis resolves much of the underlying basis for Simpson’s contentions in support 

of reversal. Nonetheless, she was named as a defendant in her capacity as a resident and 

potential heir, and we will examine her contentions of error in that light. 

¶ 31 Standard of Review 

¶ 32 All of Simpson’s contentions, except the one challenging confirmation of the sale, relate 

to the circuit court’s refusal to vacate prior orders under section 2-1301 of the Code of Civil 

Procedure (735 ILCS 5/2-1301 (West 2012)). When reviewing such orders,“[t]raditional 

considerations of due diligence and whether there is a meritorious defense will remain relevant in 

the court’s consideration of whether substantial justice has been done between the parties and 

whether it is reasonable to vacate the default.” Wells Fargo Bank, N.A. v. McCluskey, 2013 IL 

115469, ¶ 27. We review a circuit court’s denial of a section 2-1301 motion to vacate for an 

abuse of discretion. Aurora Loan Services, LLC v. Kmiecik, 2013 IL App (1st) 121700, ¶ 26. A 

circuit court abuses its discretion “when it acts arbitrarily without the employment of 

conscientious judgment or if its decision exceeds the bounds of reason and ignores principles of 
No. 1-14-2925 

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law such that substantial prejudice has resulted.” Marren Builders, Inc. v. Lampert, 307 Ill. App. 

3d 937, 941 (1999). 

¶ 33 Rule 114 Affidavit Requirement 

¶ 34 The first alleged error requires us to construe Rule 114. Because Rule 114 is so new, 

Illinois courts have had little opportunity to interpret it. The central theme around which 

Simpson frames her Rule 114 arguments is that she stands in the place of her grandmother and 

succeeds to all the rights her grandmother would have had as a borrower under various proconsumer loan modification programs. Simpson claims she is a “mortgagor” under section 15-

1209 of the Mortgage Foreclosure Law (735 ILCS 5/15-1209 (West 2012)) because she is a 

“person claiming through a mortgagor as successor.” As such, she contends that Wells Fargo 

was forbidden from obtaining a foreclosure order until it had submitted a loss mitigation affidavit 

as required by Rule 114. Ill. S. Ct. R. 114 (eff. May 1, 2013) (requiring the plaintiff to file an 

affidavit prior to or at the time of moving for a judgment of foreclosure). 

¶ 35 We construe supreme court rules in the same manner as we construe statutes. Robidoux 

v. Oliphant, 201 Ill. 2d 324, 332 (2002). Accordingly, when interpreting a supreme court rule, 

we must ascertain and give effect to the intent of the supreme court for promulgating the rule. 

Id. The most reliable indicator of the court’s intent is the rule’s actual language, which should be 

given its plain and ordinary meaning. Id. Committee comments to supreme court rules are not 

binding but they may be used to determine the application of a rule. Wright v. Desate, Inc., 292 

Ill. App. 3d 952, 954 (1997). Our review of the construction of a court rule is de novo. In re 

Estate of Rennick, 181 Ill. 2d 395, 401 (1998). 

¶ 36 Rule 114 requires foreclosing lenders to file an affidavit specifying: “(1) Any type of 

loss mitigation which applies to the subject mortgage; (2) What steps were taken to offer said 
No. 1-14-2925 

18 

type of loss mitigation to the mortgagor(s); and (3) The status of any such loss mitigation 

efforts.” Ill. S. Ct. R. 114(b) (eff. May 1, 2013). Subsection (d) of the rule states: “The court 

may, either sua sponte or upon motion of a mortgagor, stay the proceedings or deny entry of a 

foreclosure judgment if Plaintiff fails to comply with the requirements of this rule.” Ill. S. Ct. R. 

114(d) (eff. May 1, 2013). The committee comments to the rule explain that our supreme court 

adopted it in response to a “huge increase” in foreclosure cases and that it is in the best interests 

of the public to work out possible mortgage refinancings rather than foreclose. Ill. S. Ct. R. 114, 

Committee Comments (adopted Apr. 8, 2013). The comments further state:

“Toward this end, Rule 114 requires the plaintiff to file an affidavit to document 

compliance with any loss mitigation program applicable to the mortgage loan at 

issue. The affidavit must be filled out and filed prior to or at the time of moving 

for a judgment of foreclosure. As such, the intended purpose of the rule is to 

prevent the entry of a judgment of foreclosure where the plaintiff has theretofore 

failed to comply with applicable loss mitigation requirements, be they local, state, 

or federal. The filing of the affidavit allows the court to review the plaintiff’s 

level of compliance with applicable loss mitigation requirements, and, if 

necessary, to deny a motion for judgment of foreclosure if said compliance is 

lacking.” Id. 

¶ 37 This rule is not written in mandatory terms. The “enforcement” section specifically notes 

that the court “may,” rather than “shall” deny entry of a foreclosure judgment if the rule is not 

satisfied. Ill. S. Ct. R. 114(d) (eff. May 1, 2013). Although the rule serves the important purpose 

of helping living mortgagors in the difficult current financial environment, we find that the rule’s 

use of the word “may” demonstrates that it is directory rather than mandatory such that it allows 
No. 1-14-2925 

19 

some room for judicial discretion regarding its enforcement. This is particularly so in the facts 

before us, where the mortgagor intended to benefit therefrom is deceased and can no longer 

borrow money or participate in a loan modification program. See In re M.I., 2013 IL 113776, ¶ 

17 (holding that a statute may be construed as mandatory if “there is negative language 

prohibiting further action in the case of noncompliance” or if “the right the provision is designed 

to protect would generally be injured under a directory reading”). 

¶ 38 Simpson strongly complains regarding her frustration with dealing with Wells Fargo 

regarding a refinancing and suggests that providing a Rule 114 affidavit would demonstrate that 

Wells Fargo treated her unfairly. We have no reason to doubt the sincerity of that quite 

justifiable frustration. We offer just one example of corporate overdependence on automated 

customer communication systems from the record below. Long after Wells Fargo knew its 

customer was deceased, rather than simply tell Simpson that she was not the bank’s customer 

and was not a good candidate for refinancing because she apparently did not own the property, it 

bizarrely sent her standard loan modification letters that would be generated for a living 

customer nonsensically addressed to “Dear Paula Dillard Deceased.” 

¶ 39 That observation aside, there are several basic flaws with Simpson’s reliance on Rule 

114. First, she is not the mortgagor; her grandmother was. It defies logic to conclude that an 

individual granddaughter of a deceased mortgagor (who left surviving children and other 

grandchildren), but who is not the executor of the grandmother’s estate, should somehow be able 

to refinance the grandmother’s mortgage, even if the granddaughter individually inherited the 

house. For this same reason, we need not resolve the issue of whether Simpson was eligible for a 

loan modification such as the federal Home Affordable Modification Program (HAMP), as she 
No. 1-14-2925 

20 

asserts.5 It is axiomatic that lenders do not lend money on residential real estate except if the 

owner, as identified by a title commitment, signs the corresponding mortgage. Neither a loan 

modification program nor an initial lender would have given Simpson a new loan on the property 

unless she became the record owner and could demonstrate clear title in her own name. She did 

not do so at the relevant time, and in fact, has never done so. 

¶ 40 Additionally, we note that living mortgagors whose credit records are damaged by having 

a delinquent mortgage do not have much ability to refinance on their own. Their sole recourse is

often to the current lender, and hence to any loss mitigation programs in which that lender 

participates. That is one of the policy considerations underlying Rule 114. In contrast, if 

Simpson had sufficient income and credit, and was able to clear title in her own name, she could 

have simply obtained a new mortgage in the open market. 

¶ 41 The loss mitigation affidavit rule was never intended to assist persons like Simpson. 

Despite the fact that she voluntarily made payments on someone else’s mortgage and the lender 

(not surprisingly) accepted those payments, Simpson never borrowed money from the lender and 

she was not the lender’s customer. A Rule 114 affidavit gives courts sufficient information to 

resolve foreclosure defendants’ requests that it delay or continue a case because the lender is 

reviewing a loan modification application or has disobeyed requirements of an applicable loss 

mitigation program. We are aware of no legally mandated loss mitigation program intended for 

heirs, legatees, or trust beneficiaries such as Simpson who had no involvement with the original 

transaction between the lender and the mortgagor, nor do Simpson’s briefs identify any. 

Accordingly, the lack of a Rule 114 loss mitigation affidavit did not prevent the court from 

 

5

 This court has held that to demonstrate that a mortgage was foreclosed in violation of 

HAMP, a borrower has the burden to demonstrate that she complied with all of the applicable 

requirements of that program. CitiMortgage, Inc. v. Bermudez, 2014 IL App (1st) 122824, ¶ 69. 
No. 1-14-2925 

21 

entering the foreclosure judgment. The circuit court did not abuse its discretion by denying the 

portions of the motions to vacate based on Rule 114. 

¶ 42 The Effect of an Out-of-Order Deed on the Property 

¶ 43 Simpson’s second contention of error involves the chronological execution and recording 

of the deeds. See supra ¶ 7. She argues that Dillard’s trust, not Dillard, owned the property 

when Dillard executed the tenth mortgage, so Dillard’s signature on the mortgage did not create 

any lien against the property. 

¶ 44 In analyzing this issue, we first note that Simpson admitted a number of facts which 

negate these defenses in her answer. The admissions all stem from her failure to deny the 

presumed “allegations” contained in every standard mortgage foreclosure complaint. 735 ILCS 

5/15-1504(c) (West 2012). That section of the Mortgage Foreclosure Law sets forth a number of 

standard, usually noncontroversial facts, common to all mortgage foreclosure scenarios. A 

foreclosure defendant who does not specifically deny them has admitted them even though they 

are not specifically set forth in the complaint. Korzen, 2013 IL App (1st) 130380, ¶ 43. These 

admitted allegations in play here include:

 1. “[O]n the date indicated, the obligor of the indebtedness 

or other obligations secured by the mortgage was justly indebted in 

the amount of the indicated original indebtedness to the original 

mortgagee or payee of the mortgage note[.]” 735 ILCS 5/15-

1504(c)(1) (West 2012); 

2. “[T]hat the mortgagor was at the date indicated an 

owner of the interest in the real estate described in the complaint 

and that as of that date made, executed and delivered the mortgage 
No. 1-14-2925 

22 

as security for the note or other obligations[.]” 735 ILCS 5/15-

1504(c)(3) (West 2012); and

3. “[T]hat the mortgage constitutes a valid, prior and 

paramount lien upon the indicated interest in the mortgaged real 

estate, which lien is prior and superior to the right, title, interest, 

claim or lien of all parties and nonrecord claimants whose interests 

in the mortgaged real estate are sought to be terminated[.]” 735 

ILCS 5/15-1504(c)(7) (West 2012). 

¶ 45 Read as a whole, the Mortgage Foreclosure Law establishes a careful balance between a 

lender’s interest that a foreclosure case not be bogged down by formalistic proofs over 

noncontroversial matters, and a mortgagor’s interest in preserving her property. Lenders benefit 

from the law’s establishment of a form complaint which is fairly immune from attack through 

pleading motions, and from the streamlined procedure a lender may use to prove up its case. 

Borrowers benefit from the many windows of opportunity the law provides them to rescue their 

properties out of the foreclosure process and the extraordinary length of time it takes to litigate 

even an uncontested case.

¶ 46 The “deemed allegations” form an important part of that balance because they take a 

number of normally innocuous and uncontested issues out of play. Simpson presents two 

arguments why our analysis should not take her admissions of these three key facts into account. 

First, she complains that her answer was hastily prepared on a fill-in-the-blank form by pro bono

attorneys working for various homeowner assistance programs at the courthouse. That may be 

true, but one using such services might not justifiably expect that they would be familiar with a 

defense as unusual and complex as hers. We cannot establish, as she suggests, a rule that we 
No. 1-14-2925 

23 

should ignore omissions in pleadings filed by persons using pro bono services. Additionally, 

when she was later represented by counsel, she did not attempt to amend the answer. 

¶ 47 Secondly, she relies on a recent case in which another division of this court found that 

enforcement of a deemed allegation was “unjust” and “inconvenient.” Bank of America, N.A. v. 

Adeyiga, 2014 IL App (1st) 131252, ¶ 104. In that case, the court held that a foreclosure 

defendant who belatedly contended he did not receive the grace period prelawsuit notice required 

by the Mortgage Foreclosure Law would not be held to have admitted the deemed allegation that 

“any and all notices of default or election to declare the indebtedness due and payable or other 

notices required to be given have been duly and properly given.” 735 ILCS 5/15-1504(c)(9) 

(West 2012). 

¶ 48 We do not find Adeyiga to be dispositive. The fundamental rule of statutory construction 

is to ascertain and give effect to the legislature’s intent. People ex rel. Birkett v. City of Chicago, 

202 Ill. 2d 36, 45 (2002). The best indication of legislative intent is the plain and ordinary 

meaning of the statutory language. Id. Where the language is clear and unambiguous, we must 

apply the statute without resort to other aids of statutory construction. Id. at 45-46. Our supreme 

court has spoken clearly on this doctrine, stating: 

“To this we can only respond that the policy arguments they 

advance are properly addressed to the legislature rather than this 

court. ‘ “[W]e do not sit as a superlegislature to weigh the wisdom 

of legislation nor to decide whether the policy which it expresses 

offends the public welfare.” ’ [Citation.] We must interpret and 

apply statutes in the manner in which they are written and cannot 

rewrite them to make them consistent with the court’s idea of 
No. 1-14-2925 

24 

orderliness and public policy.” Roselle Police Pension Board v. 

Village of Roselle, 232 Ill. 2d 546, 557-58 (2009). 

¶ 49 While we recognize Simpson’s concerns, we decline to follow the portion of Adeyiga

which held that the failure to deny a deemed allegation in a foreclosure complaint can be 

overlooked (Adeyiga, 2014 IL App (1st) 131252, ¶¶ 99-112). Such a holding is inconsistent with 

our supreme court’s interpretation of our and the legislature’s proper roles, as expressed so 

frequently in cases such as Roselle Police Pension Board. We instead hold that the failure to 

deny a deemed allegation in an answer to a mortgage foreclosure complaint must be given its 

normal and usual significance, resulting in the allegation being admitted. 

¶ 50 Although Simpson admitted certain allegations regarding the validity of the mortgage 

lien, to provide a complete record, we will specifically address the issue on the merits. Even if, 

however, we were to take the admitted deemed allegations out of our analysis, the result would 

be the same.

¶ 51 In resolving the lien claim, we must determine whether Wells Fargo had notice, 

constructive or actual, of Dillard’s trust’s interest when it issued the tenth mortgage. See US 

Bank National Ass’n v. Villasenor, 2012 IL App (1st) 120061, ¶ 58 (holding that a bank “must 

establish that it acquired an ‘interest in [the] property for valuable consideration without actual or 

constructive notice of another’s adverse interest in the property’ ” (quoting In re Ehrlich, 59 B.R. 

646, 650 (Bankr. N.D. Ill. 1986))). Actual notice is that knowledge the mortgagee had at the 

time of the conveyance. Id. ¶ 59. There is no dispute that Wells Fargo did not have actual notice. 

Thus, we must examine whether it had constructive notice. 

¶ 52 “Constructive notice is knowledge that the law imputes to a purchaser, whether or not he 

had actual knowledge at the time of the conveyance.” Id. The “law does not concern itself with 
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25 

whether an inquiry is actually carried out; rather, ‘notice is imputed to the subsequent purchaser, 

on account of his negligence in not prosecuting his inquiries in the direction indicated.’ ” Id. 

(quoting Anthony v. Wheeler, 130 Ill. 128, 135 (1889)). 

¶ 53 The general rule in Illinois is that a deed takes effect upon execution. Berrigan, 413 Ill. 

at 216-17. However, Wells Fargo relies on a statutory exception to that rule. It contends that the 

Illinois Conveyances Act (765 ILCS 5/0.01 et seq. (West 2012)) addresses this specific problem 

and requires a contrary result. The court below agreed. Section 30 of the Conveyances Act, a 

provision enshrined in Illinois property statutes with language unchanged since at least 1871, 

reads: 

“All deeds, mortgages and other instruments of writing which are 

authorized to be recorded, shall take effect and be in force from 

and after the time of filing the same for record, and not before, as 

to all creditors and subsequent purchasers, without notice; and all 

such deeds and title papers shall be adjudged void as to all such 

creditors and subsequent purchasers, without notice, until the same 

shall be filed for record.” (Emphases added.) 765 ILCS 5/30 

(West 2012). 

¶ 54 Wells Fargo relies on this statute and claims that it had no constructive notice because 

the out-of-order deeds did not appear as such in the chain of title. The “chain of title” is a 

register of “successive conveyances commencing with the patent from the government [down to] 

and including the conveyance to the one claiming title.” Capper v. Poulsen, 321 Ill. 480, 482

(1926). 
No. 1-14-2925 

26 

¶ 55 The Illinois Counties Code requires that the county recorder of deeds maintain an index 

showing the name of the grantor and grantee in every recorded document, and the page of the 

record books in which the corresponding instrument is recorded. 55 ILCS 5/3-5025(4) (West 

2012). That index does not necessarily include the date of execution or delivery of deed in the 

chain. Id. As such, the fact that a deed was recorded out-of-order will not be highlighted in the 

chain. 

¶ 56 A purchaser (a term which includes mortgagees such as Wachovia) is charged with 

constructive notice of what appears in the chain of title. St. John v. Conger, 40 Ill. 535, 536

(1866). In particular, the prospective purchaser of an interest in real estate is chargeable with 

knowledge of what appears in the grantor-grantee index, the legal record required to be 

maintained by the recorder of deeds. It is not chargeable with notice of that which appears in 

other records which may be kept as a convenience, such as a tract index. Landis v. Miles Homes 

Inc. of Illinois, 1 Ill. App. 3d 331, 334-35 (1971) (interpreting Ill. Rev. Stat. 1969, ch. 30, ¶ 29 

(now 765 ILCS 5/30 (West 2012))). However, “[r]ecords need not be searched for deeds, 

mortgages or other conveyances made by a vendor before he became vested in title and his 

vendee is not chargeable with constructive notice of matters shown by records not in the chain of 

title.” Glen Ellyn Savings & Loan Ass’n v. State Bank of Geneva, 65 Ill. App. 3d 916, 923 

(1978). 

¶ 57 When Dillard signed the tenth mortgage, the chronological misordering of the deeds was 

not shown by the chain of title, because one checking title records would normally check the 

grantor-grantee index to determine the parties involved in the most recent deed, and not review 

the actual deeds. In particular, one would not go back through the chain to review documents 
No. 1-14-2925 

27 

recorded around the time of the third prior mortgage. The parties do not contest that the chain of 

title still shows that Dillard, not her trust, owns the property. 

¶ 58 Our supreme court explained certain principles applicable to these facts in Reed v. Eastin, 

379 Ill. 586, 592 (1942). The Reed court stated that it “has long been recognized, however, that 

the statute gives a priority to the deed first recorded only where the grantee of the recorded deed 

has acted fairly and in good faith.” It also noted that “one having notice of facts which would 

put a prudent man on inquiry is chargeable with knowledge of other facts which he might have 

discovered by diligent inquiry. Whatever is notice enough to excite attention and put the party 

on his guard is notice of everything to which such inquiry might have led and every unusual 

circumstance is a ground of suspicion and demands investigation.” Id. Under the facts before 

us, we do not believe that the law required Wachovia to delve back to view the actual date 

written on a prior deed to verify that it paralleled the corresponding but long-released mortgage. 

This result is particularly compelled by the fact that there is a clear privity of interest between 

Dillard and her alleged self-declared trust. 

¶ 59 Dillard suggests that we should decline to follow case law such as Glen Ellyn Savings & 

Loan Ass’n because recorded documents in a chain of title can now be easily examined with just 

“one more click of the mouse.” She contends that the grantor-grantee index should no longer be 

the last resort for a constructive notice analysis because anyone (for a price) can now easily 

retrieve copies of an entire scanned deed from the recorder’s web site. However, the actual 

deeds were available for review on microfilm even before present technology made them readily 

available from a desktop computer. The line of cases on which we rely are grounded in longestablished equitable principles – principles which the invention of the Internet has neither 

undermined nor weakened. 
No. 1-14-2925 

28 

¶ 60 We find Dillard’s reliance on BankChampaign, NA v. Wells Fargo Bank, NA, 2012 IL 

App (4th) 110588-U, to be particularly inapposite. In that case, a divided court found that a 

mortgage executed by mortgagors personally did not create a valid lien because the mortgagors 

only held title as beneficiaries of a land trust. In so holding, the court was apparently aided by 

having a complete record including the trust documents at issue, a benefit we do not have here. 

Additionally, it appears that the trust in that case owned the property at all pertinent times and 

there were no “secret deeds” confusing the chain of title. More importantly, though, the order is 

nonprecedential and unpublished under Supreme Court Rule 23 and cannot be cited as authority. 

Ill. Sup. Ct. R. 23(e) (eff. July 1, 2011). We remind counsel that citing unpublished Rule 23 

orders violates court rules. 

¶ 61 Principles of equity also direct that Wells Fargo prevail on this issue. Were Dillard still 

alive and disclaiming her mortgage on the basis that her signature was a nullity because of her 

secret unrecorded deed to the trust, even though she received a substantial amount of money 

from the lender’s reliance on the chain of title and Dillard’s affidavit of title, the resulting 

inequity would justify our classifying her position as specious. While we cannot ascribe such an

intent to Simpson, the equitable principles underlying Illinois law regarding priority of liens 

applies equally to her. If she were to prevail, she would receive a windfall by acquiring the 

subject property free of the lien imposed to fund its purchase, and the lender would be faced with 

trying to collect on its decollateralized note from an apparently nonexistent estate. Therefore, 

what she requests would also create an inequitable result. Under her theory, property owners 

could secretly execute deeds and squirrel them away, then mortgage their property and sign a 

false affidavit of title, and later record the secret deed, leaving the lender in the lurch because it 
No. 1-14-2925 

29 

did not examine every document in the chain to find information hidden away in a deed far back 

in the chain of title. 

¶ 62 While not directly applicable to these particular facts, we are guided also by wellestablished Illinois law regarding equitable subrogation in the context of priority of liens. Our 

supreme court has described equitable subrogation as a “creature of chancery” utilized “to 

prevent injustice and unjust enrichment.” Dix Mutual Insurance Co. v. LaFramboise, 149 Ill. 2d 

314, 319 (1992). The Dix court further explained: 

“The right of subrogation is an equitable right and remedy which 

rests on the principle that substantial justice should be attained by 

placing ultimate responsibility for the loss upon the one against 

whom in good conscience it ought to fall. [Citation.] Subrogation 

is allowed to prevent injustice and unjust enrichment but will not 

be allowed where it would be inequitable to do so. [Citation.] 

There is no general rule which can be laid down to determine 

whether a right of subrogation exists since this right depends upon 

the equities of each particular case.” Id. 

¶ 63 The mortgage at issue here is the tenth in a series of refinancings by the same owner. 

Under standard subrogation principles applicable to refinancing mortgages, the lien of an old 

mortgage continues in effect without interruption and the new mortgage does not become 

subordinate to an intervening lien attaching between the time of the recording of the old 

mortgage and the effective date of the new one. Aames Capital Corp. v. Interstate Bank of Oak 

Forest, 315 Ill. App. 3d 700, 709 (2000). While this case does not present a dispute between two 
No. 1-14-2925 

30 

lenders, but instead between Dillard’s successor and a lender, the situation is essentially parallel. 

Giving Simpson the relief she seeks would give her a windfall and be grossly inequitable. 

¶ 64 Because we resolve the issue of the lien on other grounds, we need not address Wells 

Fargo’s separate contention that, by making payments on the ninth and tenth mortgages during 

her lifetime, Dillard ratified her liability for those mortgages even though title was held by her 

trust. 

¶ 65 In sum, both statutory and equitable principles demonstrate that the trial court did not 

abuse its discretion in refusing to vacate the foreclosure order on the basis of the out-of-order 

deed. 

¶ 66 Confirmation of the Judicial Sale 

¶ 67 After the property was sold to Wells Fargo at the judicial sale, Simpson repeated the 

same arguments against Wells Fargo’s motion to confirm the sale. However, she faced an even 

greater burden to overturn the sale than she did with respect to the foreclosure. Our supreme 

court recently explained the principles applicable to a reviewing court’s analysis when a 

mortgagor challenges a foreclosure by both moving to vacate the sale and challenging 

confirmation of the resulting foreclosure sale: 

“To vacate both the sale and the underlying default 

judgment of foreclosure, the borrower must not only have a 

meritorious defense to the underlying judgment, but must establish 

under section 15-1508(b)(iv) [(735 ILCS 5/15-1508(b)(iv) (West 

2010))] that justice was not otherwise done because either the 

lender, through fraud or misrepresentation, prevented the borrower 

from raising his meritorious defenses to the complaint at an earlier 
No. 1-14-2925 

31 

time in the proceedings, or the borrower has equitable defenses 

that reveal he was otherwise prevented from protecting his 

property interests. After a motion to confirm the sale has been 

filed, it is not sufficient under section 15-1508(b)(iv) to merely 

raise a meritorious defense to the complaint.” McCluskey, 2013 IL 

115469, ¶ 26. 

¶ 68 Simpson’s challenge to the sale was based on the same defenses she made against the 

foreclosure and did not rest on any independent facts regarding the conduct of the sale itself. As 

such, it necessarily fails for the same reasons as set forth in our analysis above regarding the 

motions to vacate. See id. 

¶ 69 CONCLUSION

¶ 70 All this leads inexorably to several conclusions. Simpson failed to show sufficient cause 

to vacate the foreclosure or prevent the sale. The mortgage was a valid lien on Dillard’s and the 

trust’s interest in the property, and whoever took title on Dillard’s death took it subject to the 

mortgage lien. That lien was validly enforced through the foreclosure proceedings. 

¶ 71 Affirmed.