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Friday, January 13, 2023

City's Foreclosure Action Stands Where Petition for Relief Filed too Late

In Rockford v. Gilles, an Illinois Appellate Court dismissed a lawsuit filed by a property owner that challenged a City’s foreclosure of the owner’s property finding that he did not file his petition to vacate that foreclosure judgment within the required two year period.

Over the course of 13 years, the City recorded 20 special assessment liens against two vacant lots owned by Gilles, totaling $11,465. The City then brought an action to foreclose on the property for failure to pay the liens. The City made three failed attempts to serve Gilles personally and the trial court granted the City’s motion to serve notice by publication. After Gilles failed to appear after notice was published, the trial court entered an order of default against Gilles, including a judgment of foreclosure and a sale of the property.

More than two years later, Gilles filed a petition with the court for relief from the foreclosure and sale of property. State statute provides a process for filing a petition to vacate a final order or judgment but the petition must be filed within two years of the judgment being entered. Gilles argued that he should be allowed additional time because he never received actual notice of the foreclosure proceeding (he had moved to Colorado). Gilles also argued that due to the extraordinary circumstances of his case (the pandemic, his wife’s ailing health), the court should provide him with relief even though the two year period for vacating the judgment had passed. The trial court ruled in his favor and vacated the prior orders, finding that his lack of diligence in defending the underlying lawsuit was the result of excusable mistake and not negligence since he did not know his property was in foreclosure. The City appealed.

The Appellate Court overruled the trial court’s decision, finding that relief from the two year filing period is appropriate only if the “defendant has actively misled the plaintiff or if the plaintiff has been prevented from asserting his or her rights in some extraordinary way, or if the plaintiff has mistakenly asserted his or her rights in the wrong forum.” The Appellate Court did not find those circumstances to exist in this case, and reversed the trial court’s ruling in favor of the property owner.

Post Authored by Katie Nagy & Julie Tappendorf, Ancel Glink


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