Illinois’ First District recently affirmed a summary judgment of foreclosure in favor of Wilmington Sav. Fund Soc’y, FSB (“Wilmington”) finding there to be no genuine dispute on the issue of standing and no issues with the public sale which the clerk conducted pursuant to the judgment. Wilmington Sav. Fund Soc’y, FSB as Tr. for Pretium Mortg. Acquisition Tr. v. Roney, 2023 IL App (1st) 220695-U. Roney took out a loan in 2005, defaulted in 2010, and OneWest Bank (“OneWest”), the holder of Roney’s note at that time, initiated foreclosure proceedings in 2010.[i] Roney responded to the foreclosure complaint and raised standing as a defense challenging OneWest’s standing at the inception of the case and Wilmington’s standing at the time of judgment.[ii]

Although Roney raised several issues regarding standing, only one merits discussion. Roney claimed that a discrepancy between the date in an interrogatory answer and the date in an assignment of mortgage created a genuine dispute on the issue of standing.[iii] Specifically, in one of Roney’s interrogatories he asked for the date OneWest “became the holder (owner)” of the note.[iv] The plaintiff responded that OneWest became the holder on October 4, 2011 and directed Roney to an assignment of mortgage which it attached as an exhibit to its interrogatory answers. The assignment itself showed that the note was owned by OneWest “prior to November 24, 2010.”

The discrepancy in dates was significant because the filing date of the complaint was December 2010 so OneWest had to demonstrate that it owned or held the note before December 2010.[v] If the court relied exclusively on information in the interrogatory, presumptively, OneWest would have lacked standing at the inception of the case. However, both the trial and appellate court agreed that the assignment of mortgage, “the document itself,” controlled and “clearly established that [the assignment] was a memorialization of the prior transfer, which occurred prior to November 24, 2010.”[vi] The First District elaborated: “The answer to the interrogatory does not change the plain language of the assignment itself….Where an exhibit contradicts the allegations in a pleading, the exhibit controls.” The Court concluded the assignment was sufficient to demonstrate OneWest had standing at the inception of the case.

Roney also challenged the propriety of the foreclosure sale on the grounds that the property sold for “materially less than market value” and because the sale should not have proceeded due to Roney’s pending complaints with the Office of the Comptroller of the Currency (“OCC”) and the Consumer Finance Protection Bureau (“CFPB”)[vii]. The Court concluded Roney’s challenges to the sale price lacked merit.[viii] The Court also rejected Roney’s argument that he was improperly prejudiced by the sale when the OCC and CFPB refused to communicate with him further about his complaints once the sale took place.[ix] Roney argued that under the justice clause, his pending complaints with the government agencies justified denial of Wilmington’s motion to confirm the sale.[x] The “justice clause” is codified at 735 ILCS 5/15-1508(b)(v) of the Illinois Mortgage Foreclosure Law and “provides a narrow window through which courts can undo sales…” Roney, at ¶1, 48.

The First District disagreed with Roney explaining that once the sale took place, section 15-1508(b) limited the court’s ability to undo the sale unless there were “serious defects in the actual sale process”, which there were not.[xi] The Court elaborated that “alleged errors in the process leading up to the underlying judgment” did not “warrant an exception under the justice clause.” The Court also explained that both agency complaints were filed after the sale took place and after Wilmington moved to approve the sale. Therefore, the timing of the agency complaint further supported the lower court’s refusal to indefinitely delay confirmation of the sale.[xii]  The First District affirmed the lower court’s summary judgment of foreclosure and order confirming the sale.[xiii]

[i] Roney, at ¶¶2-7. Future references to this case are to this citation until indicated otherwise.

[ii] Roney, at ¶3.

[iii] Roney, at ¶26.

[iv] Roney, at ¶¶27-28. Future references to this case are to this citation until indicated otherwise.

[v] Roney, at ¶2.

[vi] Roney, at ¶¶29-30. Future references to this case are to this citation until indicated otherwise.

[vii] Roney, at ¶¶13, 16, 42, 47.

[viii] Roney, at ¶¶43-46.

[ix] Roney, at ¶47.

[x] Roney, at ¶¶47, 49.

[xi] Roney, at ¶48. Future references to this case are to this citation until indicated otherwise.

[xii] Roney, at ¶¶48, 51.

[xiii] Roney, at ¶¶1, 53.