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 2015 IL App (5th) 130470 

 NO. 5-13-0470 

 IN THE 

 APPELLATE COURT OF ILLINOIS 

FIFTH DISTRICT 

________________________________________________________________________ 

CITIMORTGAGE, INC., ) Appeal from the 

 ) Circuit Court of 

 Plaintiff-Appellee, ) St. Clair County. 

 ) 

v. ) No. 11-CH-1035 

 ) 

LEONARD W. ADAMS and KIMBERLY A. ) 

ADAMS, ) Honorable 

 ) Stephen P. McGlynn, 

 Defendants-Appellants. ) Judge, presiding. 

________________________________________________________________________ 

 JUSTICE GOLDENHERSH delivered the judgment of the court, with opinion. 

 Presiding Justice Cates and Justice Chapman concurred in the judgment and 

opinion. 

OPINION 

¶ 1 This is an appeal involving a residential mortgage foreclosure action. Plaintiff, 

CitiMortgage, Inc., alleges defendants, Leonard Adams and Kimberly Adams, failed to 

make monthly installment payments for principal, taxes, and interest pursuant to a 

mortgage. As a result of defendants' alleged failure to make payments, plaintiff filed a 

complaint to foreclose mortgage in the trial court. The trial court confirmed the 

foreclosure sale and later denied defendants' two separate motions to reconsider. 

¶ 2 Defendants now appeal the trial court's order in favor of plaintiff and against 

NOTICE

Decision filed 07/20/15. The 

text of this decision may be 

changed or corrected prior to 

the filing of a Peti ion for 

Rehearing or the disposition of 

the same.
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defendants approving the foreclosure sale, and appeal the trial court's order denying 

defendants' motions to reconsider. Defendants allege the trial court abused its discretion 

when it confirmed the foreclosure sale. 

¶ 3 Prior to the foreclosure sale, defendants assert they applied for assistance under 

the Home Affordable Modification Program (HAMP), a component of the Making Home 

Affordable Program established by the United States Department of the Treasury 

pursuant to the Emergency Economic Stabilization Act of 2008, as amended by the 

American Recovery and Reinvestment Act of 2009, and, therefore, the trial court should 

have set the sale aside. 735 ILCS 5/15-1508(d-5) (West 2012). Defendants also allege 

the subject real estate was sold in material violation of HAMP, and plaintiff should have 

been required to comply with the HAMP requirements. 735 ILCS 5/15-1508(d-5) (West 

2012). 

¶ 4 Plaintiff maintains this appeal is the first time in this case defendants have sought 

relief under section 15-1508(d-5) of the Illinois Mortgage Foreclosure Law (735 ILCS 

5/15-1508(d-5) (West 2012)), and, therefore, they did not properly preserve the issue for 

appeal. Alternatively, plaintiff alleges defendants did not satisfy the requirements of 

section 15-1508(d-5) because they failed to bring a timely motion in the trial court and 

failed to prove the statute's required elements by a preponderance of the evidence. 

Therefore, plaintiff contends, the trial court did not abuse its discretion when it confirmed 

the foreclosure sale, and its decision should be affirmed. 

¶ 5 Plaintiff and defendants disagree about whether defendants applied for assistance 

under HAMP prior to the foreclosure sale. The trial court was not informed that 
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defendants had applied for assistance under HAMP prior to confirmation of the 

foreclosure sale, and should have been made aware of this information before 

determining whether to confirm the foreclosure sale. We reverse and remand for further 

proceedings. 

¶ 6 BACKGROUND 

¶ 7 On October 10, 2011, plaintiff filed a complaint to foreclose mortgage under the 

Illinois Mortgage Foreclosure Law alleging inter alia that defendants failed to pay 

monthly installments for principal, taxes, interest, and insurance pursuant to a mortgage 

dated March 18, 2005, on defendants' single-family residence and the note secured by 

that residence. 735 ILCS 5/15-1101 (West 2012). On March 23, 2012, defendants filed 

their answer to plaintiff's complaint to foreclose mortgage. Plaintiff subsequently filed a 

motion for summary judgment on May 3, 2012. 735 ILCS 5/2-1005 (West 2012). 

¶ 8 On May 24, 2012, the circuit court granted plaintiff's motion for summary 

judgment and entered a judgment of foreclosure and sale. That same date, plaintiff filed 

its motion for order approving report of sale and distribution. On August 13, 2012, 

plaintiff filed a notice indicating a foreclosure sale would take place on August 28, 2012. 

On October 4, 2012, the court entered an order approving report of sale and distribution, 

confirming sale and order of possession. 

¶ 9 On November 2, 2012, defendants filed their first motion to reconsider and for 

other relief asking the court to set aside the foreclosure sale, alleging defendants had 

previously applied for assistance under HAMP and that defendants were waiting for a 

decision to be made regarding their application. Regarding defendants' application for 
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assistance, plaintiff informed defendants on two separate dates, July 7, 2012, and July 9, 

2012, that it would take approximately 30 days for plaintiff to review defendants' 

application that was filed in May 2012. On August 29, 2012, plaintiff informed 

defendants that their May 2012 application could no longer be used because the dates in 

the application were expired, and requested defendants file a new application. This 

August 29, 2012, request concerning defendants' application was delivered by plaintiff in 

response to defendant Leonard Adams' request for an update on the status of defendants' 

application made on August 27, 2012. 

¶ 10 The court took defendants' motion to reconsider under advisement after argument 

on the matter. On November 26, 2012, an order was entered that stated the following: 

"Plaintiff failed to properly and timely respond to Defendants['] request to 

participate in a foreclosure prevention program ***. *** Plaintiff to complete 

review of Defendants['] request to participate in foreclosure prevention program 

and properly notify Defendants of its determination." 

¶ 11 On January 3, 2013, the court entered an order continuing the case for status 

conference on February 7, 2013. On February 7, 2013, the court entered an order stating 

there had been no response to the loan modification and the matter was continued for 

status on May 16, 2013. 

¶ 12 On March 4, 2013, plaintiff filed a copy of a letter of denial with the circuit clerk 

dated February 25, 2013, which informed defendants their application was denied 

because of its "loan on behalf of Fannie Mae whom [sic] has not given us the contractual 

authority to modify your loan under this program." The letter directed defendants to 
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contact "Shelly Craig" if defendants had any questions. Alternatively, the letter directed 

defendants to "contact me at CitiMortgage Inc. Homeownership Support Team." The 

letter also informed defendants they may qualify for other options. 

¶ 13 On May 16, 2013, the circuit court entered an order that reset the matter for 

confirmation of sale. On May 30, 2013, the court entered an order approving report of 

sale and distribution and confirming sale and order of possession. Defendants then filed 

a second motion to reconsider and for other relief on June 27, 2013. Plaintiff filed its 

response to defendants' motion to reconsider and for other relief on July 17, 2013, and the 

court denied defendants' second motion to reconsider and for other relief on August 26, 

2013. Defendants timely appealed. 

¶ 14 ANALYSIS 

¶ 15 On appeal, defendants allege the trial court erred by confirming the foreclosure 

sale despite HAMP violations and misapplied Illinois and federal law in denying their 

motion to reconsider. At issue in this case is defendants' application for assistance under 

HAMP. Plaintiff and defendants disagree about whether defendants applied for 

assistance under HAMP, and dispute whether plaintiff and defendants properly followed 

the guidelines of that program. 

¶ 16 With that said, the trial court was not informed of this disposition of the 

application before confirming the foreclosure sale. The trial court should have been 

informed of the matter concerning defendants' application for assistance under HAMP 

before it confirmed the foreclosure sale. It would then have been appropriate for the trial 

court to determine whether plaintiff satisfied the requirements of HAMP. 735 ILCS 
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5/15-1508(d-5) (West 2012). 

¶ 17 A trial court's order confirming a foreclosure sale is reviewed under the Illinois 

Mortgage Foreclosure Law. 735 ILCS 5/15-1101 (West 2012). The relevant portions of 

the Illinois Mortgage Foreclosure Law provide the following: 

"The court that entered the judgment shall set aside a sale held pursuant to Section 

15-1507, upon motion of the mortgagor at any time prior to the confirmation of 

the sale, if the mortgagor proves by a preponderance of the evidence that (i) the 

mortgagor has applied for assistance under the Making Home Affordable Program 

established by the United States Department of the Treasury pursuant to the 

Emergency Economic Stabilization Act of 2008, as amended by the American 

Recovery and Reinvestment Act of 2009, and (ii) the mortgaged real estate was 

sold in material violation of the program's requirements for proceeding to a 

judicial sale." 735 ILCS 5/15-1508(d-5) (West 2012). 

¶ 18 The provisions of section 15-1508 have been construed as giving circuit courts 

broad discretion in approving or disapproving judicial sales. Citicorp Savings of Illinois 

v. First Chicago Trust Co. of Illinois, 269 Ill. App. 3d 293, 300, 645 N.E.2d 1038, 1045

(1995). A court's decision to confirm or reject a judicial sale under the statute will not be 

disturbed absent an abuse of discretion. Household Bank, FSB v. Lewis, 229 Ill. 2d 173, 

178, 890 N.E.2d 934, 937 (2008). 

¶ 19 The Illinois Mortgage Foreclosure Law specifically provides that a sale shall be 

set aside if a mortgagor can prove he or she applied for assistance under HAMP by a 

preponderance of the evidence. 735 ILCS 5/15-1508(d-5) (West 2012). By the plain 
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language of the Illinois Mortgage Foreclosure Law, the foreclosure sale in this case 

should have been set aside if it could be shown defendants applied for assistance under 

HAMP prior to the foreclosure sale. 

¶ 20 In the record, there is no indication the trial court was aware of defendants' 

application for assistance prior to entering an order for confirmation of sale on October 4, 

2012. As defendants point out concerning the order dated November 26, 2012, the trial 

court acknowledged defendants had applied for assistance under HAMP prior to 

confirmation of the foreclosure sale and plaintiff failed to properly and timely respond to 

defendants' request to participate in a foreclosure prevention program. The trial court 

should have been made aware of this significant information before acting on a decision 

concerning confirmation of the foreclosure sale. Because the trial court was not informed 

of this disposition concerning the foreclosure sale, we reverse and remand this case so 

that the trial court can be presented with all relevant information. 

¶ 21 Plaintiff and defendants also raise several other issues on appeal. We will briefly 

address those issues which should be resolved by the trial court on remand. 

¶ 22 Defendants allege the trial court erred in denying their motions to reconsider and 

for other relief by confirming the foreclosure sale because the subject real estate was sold 

in material violation of HAMP and the trial court misapplied Illinois and federal law. 

Defendants contend the sale should be set aside and plaintiff should be required to 

comply with HAMP's requirements. 

¶ 23 Defendants allege plaintiff violated HAMP's guidelines by failing to show it 

timely responded to defendants' application. As to its order dated November 26, 2012,
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the trial court indicated that defendants applied for assistance under HAMP. That order 

stated the following: 

"The court finds the sale was conducted in a commercially reasonable way. 

However, Plaintiff failed to properly and timely respond to Defendants['] request 

to participate in a foreclosure prevention program as confirmed by Plaintiff's July 

2012 correspondence to Defendants." 

Based upon this determination, defendants allege they should have been timely and 

properly notified of plaintiff's decision regarding their application prior to moving 

forward with confirmation of the foreclosure sale. 

¶ 24 Fannie Mae's guidelines corresponding to the HAMP directives published in the 

Fannie Mae Single Family 2012 Servicing Guide dated March 14, 2012, provide: 

"The servicer must acknowledge to the borrower, either verbally or in 

writing, its receipt of a Borrower Response Package within 3 business days of 

receipt. The acknowledgement must include the following: 

• the servicer's evaluation process and response time frame; 

 • an explanation of the foreclosure process, including that the foreclosure 

process may continue during the evaluation and that foreclosure referral will 

not occur if the servicer is reviewing a complete Borrower Response Package 

or has extended an offer and the borrower's response time for acceptance has 

not expired; 

 • for borrowers who submit a complete Borrower Response Package less 

than 37 days prior to a scheduled foreclosure sale, an explanation of the 
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servicer's plans for evaluating the borrower for a foreclosure prevention 

alternative and suspending the foreclosure sale, if appropriate; and 

 • appropriate disclosures required by applicable federal, state, or local 

law." 

¶ 25 The guidelines also require that the servicer review and evaluate an application 

and then communicate a decision within 5 days after making the decision, but no later 

than 30 days after receipt of the application. During the evaluation process, the servicer 

is required to work with the borrower to bring the mortgage loan current, to develop a 

workout plan, or to create another foreclosure prevention alternative after a mortgage 

loan is referred to foreclosure. 

¶ 26 In this case, defendants filed an application for assistance under HAMP in May 

2012. Plaintiff notified defendants pursuant to two letters dated July 7, 2012, and July 9, 

2012, indicating it would take plaintiff approximately 30 days to review their application. 

Plaintiff did not inform defendants until August 29, 2012, that their application could no 

longer be used and requested defendants to file a new application. The trial court should 

consider whether the July 7, 2012, July 9, 2012, and August 29, 2012, letters from 

plaintiff to defendants constitute violations of the HAMP guidelines. 

¶ 27 Also, there is no indication in this record that plaintiff attempted to work with 

defendants to bring the mortgage loan current, develop a workout plan, or create another 

foreclosure prevention alternative despite defendants' attempts to contact plaintiff and 

cure the default in payments under the mortgage. Rather, plaintiff took no action on 

defendants' first application for assistance and required defendants to reapply because 
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their first application allegedly could not be used due to expired dates. After defendants 

applied for assistance a second time, plaintiff denied their application without any 

attempt to cure the default as required by the HAMP guidelines, and were vague with 

regard to whom defendants should contact with questions and what alternative options 

defendants may qualify for. The trial court should consider whether this action and 

inaction on the part of plaintiff constitutes material violations of HAMP. 

¶ 28 We now turn to plaintiff's arguments which the trial court should consider on 

remand. Plaintiff contends the trial court properly confirmed the foreclosure sale in its 

favor under the Illinois Mortgage Foreclosure Law and correctly denied defendants' 

motions for reconsideration. Plaintiff suggests several reasons for why confirmation of 

the foreclosure sale was proper. 

¶ 29 First, plaintiff alleges defendants waived their right to seek relief on appeal 

because they did not raise the issue of whether they were entitled to relief under section 

15-1508(d-5) in the trial court. Parks v. Kownacki, 193 Ill. 2d 164, 180, 737 N.E.2d 287, 

296 (2000). Plaintiff asserts this court should affirm the trial court because defendants 

failed to preserve the issue. 

¶ 30 While plaintiff properly indicates that questions not presented in the trial court 

cannot be argued for the first time on appeal, the record suggests defendants are not 

seeking relief for the first time on appeal. 

¶ 31 Defendants indicate they filed two separate motions to reconsider and for other 

relief on November 2, 2012, and June 27, 2013. Each of defendants' motions to 

reconsider states the following: "That it is the Defendants' position that the Plaintiff's acts 
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and omissions in this instance are contrary to the policy supporting the Making Home 

Affordable Program ***." Each of the motions to reconsider also requested the trial 

court to "[f]ind that the Plaintiff's actions constitute a material violation of the Making 

Home Affordable Program." This language was taken from section 15-1508(d-5), which 

permits the trial court to set aside a foreclosure sale when the subject real estate is sold in 

material violation of HAMP. Accordingly, plaintiff's assertion that defendants did not 

seek relief pursuant to section 15-1508(d-5) before bringing this appeal is without merit. 

¶ 32 Second, plaintiff alleges defendants are precluded from seeking relief under 

section 15-1508(d-5) because they failed to file a motion prior to confirmation of the sale. 

Plaintiff relies on section 15-1508(d-5), which provides: "The court that entered the 

judgment shall set aside a sale held pursuant to Section 15-1507, upon motion of the 

mortgagor at any time prior to the confirmation of the sale ***." 735 ILCS 5/15-1508(d5) (West 2012). Plaintiff alleges defendants' appeal must be dismissed because 

defendants did not file a motion requesting relief under section 15-1508(d-5) as required 

by statute. 

¶ 33 As the record reveals, the trial court confirmed the foreclosure sale on October 4, 

2012. In defendants' first motion to reconsider filed on November 2, 2012, defendants 

indicate they applied for assistance under HAMP prior to confirmation of the sale, 

specifically receiving two letters from plaintiff dated July 7, 2012, and July 9, 2012, 

informing defendants it would take plaintiff approximately 30 days to review their 

application for assistance. Plaintiff's argument that defendants did not seek relief prior to 

confirmation of the foreclosure sale is not consistent with the record. 
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¶ 34 Lastly, plaintiff alleges defendants failed to establish they applied for assistance by 

a preponderance of the evidence as required under section 15-1508(d-5). Whether 

defendants can prove by a preponderance of the evidence that they applied for assistance 

under HAMP is a question for the trial court. 

¶ 35 Section 15-1508(d-5) of the Illinois Mortgage Foreclosure Law provides: "The 

court that entered the judgment shall set aside a sale *** if the mortgagor proves by a 

preponderance of the evidence that (i) the mortgagor has applied for assistance under the 

Making Home Affordable Program ***, and (ii) the mortgaged real estate was sold in 

material violation of the program's requirements for proceeding to a judicial sale." 735 

ILCS 5/15-1508(d-5) (West 2012). A defendant must prove both (1) the application for 

assistance and (2) material violation. 

¶ 36 In the instant case, defendants assert the trial court determined in its November 26, 

2012, order that defendants applied for assistance within the meaning of section 15-

1508(d-5). We agree. The November 26, 2012, order indicates defendants applied for 

assistance under HAMP. 

¶ 37 The trial court's November 26, 2012, order in response to defendants' motion to 

reconsider and for other relief stated: 

"The court finds the sale was conducted in a commercially reasonable way. 

However, Plaintiff failed to properly and timely respond to Defendants['] request 

to participate in a foreclosure prevention program as confirmed by Plaintiff's July 

2012 correspondence to Defendants. Surrender of possession is stayed until 

further order of this court. Plaintiff to complete review of Defendants['] request to 
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participate in foreclosure prevention program and properly notify Defendants of its 

determination." 

¶ 38 The language of this order clearly establishes that the trial court found defendants 

applied for assistance under HAMP. It ordered plaintiff to complete review of 

defendants' application to participate in a foreclosure prevention program and properly 

notify defendants of its determination. Accordingly, whether defendants applied for 

assistance within the meaning of section 15-1508(d-5) has been determined. 

¶ 39 The record here shows defendants did submit the requisite documentation 

necessary to apply for assistance. The trial court, as noted above, made a conclusive 

finding that defendants applied for assistance. It accordingly ordered plaintiff to 

complete review of defendants' request to participate in a foreclosure prevention program 

and notify defendants of its determination. 

¶ 40 CONCLUSION 

¶ 41 Accordingly, we reverse and remand with directions to consider and resolve the 

issues noted above, including but not limited to the disposition of the HAMP application 

and a determination whether plaintiff's action and inaction constituted a material violation 

of HAMP. 

¶ 42 For the reasons stated herein, the judgment of the circuit court of St. Clair County 

is reversed and the matter is remanded with directions. 

¶ 43 Reversed and remanded with directions. 
2015 IL App (5th) 130470 

NO. 5-13-0470 

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

CITIMORTGAGE, INC., ) Appeal from the 

 ) Circuit Court of 

 Plaintiff-Appellee, ) St. Clair County. 

 ) 

v. ) No. 11-CH-1035 

 ) 

LEONARD W. ADAMS and KIMBERLY A. ) 

ADAMS, ) Honorable 

 ) Stephen P. McGlynn, 

 Defendants-Appellants. ) Judge, presiding. 

______________________________________________________________________________ 

Opinion Filed: July 20, 2015

______________________________________________________________________________ 

Justices: Honorable Richard P. Goldenhersh, J.

 Honorable Judy L. Cates, P.J., and 

 Honorable Melissa A. Chapman, J., 

 Concur 

______________________________________________________________________________ 

Attorney Anthony R. Garavalia, Flynn Guymon & Garavalia, 300 West Main 

for Street, Suite 4, Belleville, IL 62220 

Appellants 

______________________________________________________________________________ 

Attorney Adam D. Grant, Dickinson Wright, 500 Woodward Avenue, Suite 4000, 

for Detroit, MI 48226 

Appellee 

______________________________________________________________________________