Bayview Loan Servicing v. 2010 Real Estate Foreclosure (IL)

Summary: Intervenor failed to carry its burden of proving sufficient grounds that “justice was not done” pursuant to section 15-1508(b) of the Foreclosure Law when seeking to vacate the confirmation of a judicial sale of a foreclosed property.


Go to full opinion.


Bayview Loan Servicing, LLC v. 2010 Real Estate Foreclosure, LLC, 2013 IL App (1st) 120711.


Facts: On July 23, 2009, Plaintiff, Bayview Loan Servicing, LLC, servicer for CitiMortgage, Inc., brought a mortgage foreclosure action against Defendants Mark Laskowski, The Bank of Commerce, Pacific Realty Group, and other unknown and nonrecord parties (see full opinion for complete list of parties). Defendants were not parties to the appeal. On May 13, 2010, the circuit court entered a judgment of foreclosure, judicial sale of the subject property, and summary judgment against Laskowski and other defendants. After the sale of the property, Intervenor, 2010 Real Estate Foreclosure, LLC, sought to vacate the confirmation of the sale pursuant to both section 2-1301(e) of the Illinois Code of Civil Procedure and section 15-1508(b) of the Illinois Mortgage Foreclosure law. In its motion, intervenor argued that it was the successful bidder at another foreclosure sale conducted by the second mortgagee on the property and that it had a motion pending to determine whether the sale of the second mortgage would be vacated due to bankruptcy issues. Intervenor argued that the circuit court should not confirm the sale as intervenor would be severely prejudiced and would potentially moot its pending motion. On May 17, 2010, the circuit court allowed the intervenor to intervene and stayed the sale. On September 26, 2011, the circuit court entered an order confirming the judicial sale of the property.

On October 25, 2011, intervenor filed a motion to vacate confirmation of the foreclosure sale claiming that justice would not otherwise be done, that Bayview filed a defective lis pendens, and that a fraudulent release of a mortgage occurred. Intervenor contended that had it known of the first mortgage, it would not have bid at the foreclosure sale brought by the second mortgagee. Intervenor further argued that the foreclosure action was void because Bayview was not licensed as a collection agency as required by the Illinois Collection Agency Act. In contrast, Bayview asserted intervenor did not act diligently in its lis pendens research because intervenor relied solely on the Cook County recorder of deeds website and did not actually open the lis pendens document. Further, Bayview argued that it was exempt from the Collection Act because it is a fiduciary of a financing and lending institution.

Ultimately, the circuit court denied intervenor’s motion to vacate the confirmation of the sale.


Holding: Affirmed. On appeal, the court, relying on a previous decision, concluded that intervenor may not seek relief under section 2-1301(e) of the Illinois Code of Civil Procedure because the sole relief available to a party seeking to vacate a confirmation of a foreclosure sale is under section 15-1508(b) of the Illinois Mortgage Foreclosure law. As such, the court only addressed intervenor’s arguments concerning section 15-1508(b) of the Mortgage Foreclosure law. Intervenor alleged that justice was not done under the statute because of a defective lis pendens and because Bayview failed to register as a collection agency as required by Illinois law. The court held that intervenor was not entitled to relief under section 15-1508(b) because intervenor failed to establish that “justice was otherwise not done” as required by the statute. The court first noted that circuit courts are given broad discretion in confirming or rejecting judicial sales. The court then affirmed general law that absent abuse of discretion, it will not disturb the circuit court’s decision.

The court focused primarily on two of intervenor’s arguments: whether Bayview failed to obtain a license under the Collection Act and whether Bayview filed a defective lis pendens. The court reiterated that “an interested party seeking to oppose a judicial foreclosure sale bears the burden of proving that sufficient grounds exist to disapprove of a judicial sale.” The court held that intervenor failed to meet its burden that Bayview really is a collection agency as it presented no evidence that Bayview was subject to the Collection Act. Therefore, there was no abuse of discretion by the circuit court. Regarding the lis pendens, the court held that Bayview properly complied with all aspects of section 15-1503 of the Foreclosure Law; thus it was not defective. The court concluded that that it will not “vacate the confirmation of a judicial sale at the insistence of an interested party whose complained-of error was the result of its own negligence” and affirmed the circuit court’s ruling.


Opinion Year: 
By: ATG Underwriting Department | Posted on: Mon, 05/19/2014 - 10:55am