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No. 1-01-2854                                                                                                                                         First Division

October 28, 2002

JUSTICE COHEN delivered the opinion of the court:

Plaintiff Plaza Bank filed a complaint pursuant to section 15-1504 of the Illinois MortgageForeclosure Law (Foreclosure Law) (735 ILCS 5/15-1504 (West 1998)) seeking foreclosure on amortgage issued to defendant Frank Kappel, Jr. Following entry of a default judgment offoreclosure, the underlying action was dismissed for want of prosecution. The property was then soldat a public auction to David Azran. The dismissal was subsequently vacated pursuant to section2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2000)) and Azran was permittedto intervene as a party to the foreclosure action. Despite Azran's motion to set aside the sale, the trialcourt then confirmed the sale of the property to Azran pursuant to section 15-1508(b) of theForeclosure Law (735 ILCS 5/15-1508(b) (West 1998)). Azran appeals from the order confirmingthe sale. Azran argues that the sale is "invalid" because the underlying case was dismissed for wantof prosecution at the time of the sale. For the following reasons, we affirm.

BACKGROUND

On September 17, 1999, plaintiff filed a complaint against Kappel, unknown owners, andnonrecord claimants, alleging that Kappel had defaulted on a mortgage of property located at 6266W. North Avenue in Chicago, Illinois (the property). When no defendant had answered thecomplaint by April 26, 2000, plaintiff moved for entry of a default judgment against defendants. Thetrial court granted plaintiff's motion on May 3, 2000, entering a judgment of foreclosure which, interalia, directed that the premises be sold to the highest bidder at a public auction by "any judicialselling officer approved by" the trial court. The trial court in its written order expressly retainedjurisdiction over the subject matter and parties for purposes of enforcing the judgment of foreclosureand further found "no just reason to delay in the enforcement of or appeal from this final judgmentorder." In a separate order entered the same day, the trial court appointed Intercounty Judicial SalesCorporation (Intercounty) as selling officer.

On March 15, 2001, at its annual calendar call⁽¹⁾ the trial court dismissed the underlyingforeclosure action for want of prosecution because no order had been entered in the case in thepreceding six months. Plaintiff, unaware of the dismissal, filed a "Motion to Approve Report of Saleand Distribution and for Order of Possession" on April 12, 2001, requesting confirmation of the sale. The attached "Report of Sale and Distribution" indicates that the property was sold to Azran on April3, 2001, as the highest bidder at a public auction conducted by Intercounty. On May 7, 2001,plaintiff moved to vacate the dismissal for want of prosecution pursuant to section 2-1401 of theCode of Civil Procedure (735 ILCS 5/2-1401 (West 2000)). Plaintiff alleged that it had not receivednotice either that the case had been placed on the court's annual calendar call or of the dismissal forwant of prosecution until counsel appeared before the trial court on May 7, 2001, to presentplaintiff's motion for confirmation of the sale and was informed of the dismissal by the trial court. On May 14, 2001, the trial court granted plaintiff's motion to vacate the dismissal pursuant to section2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2000)). That same day Azranwas granted leave to intervene and filed a motion to set aside the sale.

On June 28, 2001, the trial court held a hearing to consider: (1) plaintiff's motion to confirmthe sale; and (2) Azran's motion to set aside that sale. At the hearing, counsel for Azran representedthat the purchase of the property had been made by Azran's "right-hand lady" while Azran wastraveling abroad and that Azran decided upon his return that "he didn't like the deal." Azran'scounsel argued that, because the sale couldn't be confirmed until the dismissal for want ofprosecution was vacated and the underlying case reinstated, the sale itself was void. Plaintiff'scounsel argued that the sale was validly conducted pursuant to the May 3, 2001, judgment offoreclosure. Plaintiff's counsel further argued that the Foreclosure Law required the trial court toconfirm the sale because Azran failed to establish any of the statutory grounds upon whichconfirmation may be denied.

The trial court ruled in favor of plaintiff and confirmed the sale. Azran appeals.

ANALYSIS

The sole issue presented on appeal is whether a judicial sale conducted pursuant to ajudgment of foreclosure is properly confirmed by the trial court where the underlying foreclosureaction was dismissed for want of prosecution prior to the sale but reinstated prior to confirmationof the sale. This issue is one of first impression.

The Foreclosure Law provides the exclusive procedure for foreclosure of mortgages inIllinois. 735 ILCS 5/15-1106(a)(1) (West 2000). A judicial foreclosure is initiated by the filing ofa complaint, with due notice, against the mortgagor. 735 ILCS 5/15-1501(a), 15-1504 (West 2000). Any unknown owners or other persons having a possessory interest in the mortgaged real estate mayalso be made parties to the action. 735 ILCS 5/15-1501(b)(1), (c) (West 2000). Upon adequateproof of the matters alleged in the complaint, the trial court shall enter a judgment of foreclosure. 735 ILCS 5/15-1506(a), (c) (West 2000). Such judgment may include specific instructionsregarding a judicial sale of the subject real estate. 735 ILCS 5/15-1506(f) (West 2000).

Upon entry of the judgment of foreclosure, the rights of parties to the foreclosure and ofnonrecord claimants with notice of the foreclosure "shall be solely as provided for in the judgmentof foreclosure and in [the Foreclosure Law]." 735 ILCS 5/15-1506(i)(2) (West 2000). However,"[t]he authority of the [trial] court continues during the entire pendency of the foreclosure and untildisposition of all matters arising out of the foreclosure." 735 ILCS 5/15-1103 (West 2000). Following entry of the judgment of foreclosure, the subject real estate must be sold at a judicial salein accordance with section 15-1507 of the Foreclosure Law on such terms and conditions asspecified in the judgment of foreclosure. 735 ILCS 5/15-1507 (West 2000). Such sale must thenbe confirmed by the trial court pursuant to section 15--1508(b) of the Foreclosure Law. 735 ILCS5/15-1508(b) (West 2000).

Azran does not challenge the validity of the judgment of foreclosure⁽²⁾

nor does he contendthat the judicial sale in any way failed to comply with the requirements of either the judgment offoreclosure or section 15-1507 of the Foreclosure Law. Azran's sole argument on appeal is that thejudicial sale was invalid because, at the time of the sale, entry of the order dismissing the cause forwant of prosecution had deprived the trial court of jurisdiction to confirm the sale as required bysection 15--1508(b) of the Foreclosure Law. 735 ILCS 5/15-1508(b) (West 2000). CitingGovernale v. Northwest Community Hospital, 147 Ill. App. 3d 590 (1986), in support, Azran arguesthat "once a case is dismissed, the [trial] court is without power to make another order." Azranargues that "[i]f the [trial] court is without power to make another order, than [sic] it cannot confirmthe sale and the sale is invalid, if held, as in this instance, at a time when the case has beendismissed."

In Governale, the trial court granted the defendants' motion for new trial after a jury hadreturned a verdict in favor of the plaintiff. Governale, 147 Ill. App. 3d at 591. The plaintiff thenunsuccessfully petitioned this court pursuant to Supreme Court Rule 306(a) (87 Ill. 2d R. 306(a)) forleave to appeal. Governale, 147 Ill. App. 3d at 591-92. After denial of plaintiff's petition for leaveto appeal, the case was placed on the trial call and, on March 3, 1982, the trial court entered an orderdirecting the clerk of the circuit court to renumber the case with a current yearly number. Governale,147 Ill. App. 3d at 592. The following day, the trial court dismissed the case for want ofprosecution. Governale, 147 Ill. App. 3d at 592. On March 8, 1982, an unsigned document(characterized by the parties as an order) was entered assigning the case a new 1982 case number. Governale, 147 Ill. App. 3d at 592. By agreement of the parties, the 1982 case was then dismissedfor want of prosecution on September 2, 1982. Governale, 147 Ill. App. 3d at 596. When plaintiffrefiled the 1983 case on July 11, 1983, defendants successfully moved to dismiss the case, arguingthat the case was not timely refiled within one year of the March 4, 1982, dismissal. Governale, 147 Ill. App. 3d at 592; see 735 ILCS 5/13-217 (West 2000) (permitting the refiling within one year ofcases dismissed for want of prosecution).

On appeal, this court noted that "[i]t is axiomatic that when a case is dismissed, 'the partiesare out of court and any further proceedings are unauthorized until the judgment of dismissal isvacated and the cause reinstated.' [Citations.]" Governale, 147 Ill. App. 3d at 596. This court furthernoted that "an exception to the general rule arises where the parties actively participate in furtherproceedings or where the party in whose favor dismissal was entered otherwise conducts himself ina manner inconsistent with the order of dismissal." Governale, 147 Ill. App. 3d at 596. This courtfound that the parties' active participation in further proceedings after the March 8, 1983,dismissal-specifically, for having agreed to permit the September 2, 1983, dismissal with theexpectation that suit would be refiled within one year-nullified the order of dismissal and revestedthe trial court with jurisdiction. Governale, 147 Ill. App. 3d at 596.

Azran's reliance on Governale is misplaced. The public auction at which Azran was thehighest bidder was not a "further proceeding[]" within the meaning of Governale. Governaleaddressed the authority of the trial court to conduct further proceedings following entry of an orderof dismissal. Governale, 147 Ill. App. 3d at 596. The public auction in the instant case wasconducted not by the trial court but rather by Intercounty pursuant to the final judgment offoreclosure and the trial court's May 3, 2001, order appointing Intercounty as selling officer. Because the public auction was not conducted by the trial court, it was not an unauthorized "furtherproceeding[]" within the meaning of Governale.

Additionally, Azran urges this court to find the sale of the property "invalid" because the trialcourt was without jurisdiction to confirm the sale at the time the public auction was held. There isno dispute that under Governale the trial court was without authority to conduct "furtherproceedings" to confirm the sale "until the judgment of dismissal [was] vacated and the causereinstated." Governale, 147 Ill. App. 3d at 596. The trial court in the instant case, however, vacatedthe dismissal and reinstated the cause prior to conducting the June 28, 2001, hearing to consider: (1)plaintiff's motion seeking confirmation; and (2) Azran's motion to set aside the sale. Furtherproceedings conducted by the trial court following reinstatement of the case do not violate the rulein Governale. Governale, 147 Ill. App. 3d at 596.

It is well-settled in Illinois that a judicial foreclosure sale is not complete until it has beenapproved by the trial court. Commercial Credit Loans, Inc. v. Espinoza, 293 Ill. App. 3d 923, 927(1997). "The high bid received at a judicial sale is merely an irrevocable offer to purchase theproperty, and acceptance of the offer takes place when the trial court confirms the sale." Espinoza,293 Ill. App. 3d at 927. Azran's bid at the public auction was merely an irrevocable offer topurchase the property. That offer was not accepted until the sale was confirmed pursuant to section15--1508(b) of the Foreclosure Law. 735 ILCS 5/15-1508(b) (West 2000). Azran has notchallenged the trial court's order vacating the dismissal for want of prosecution, nor does he disputethe trial court's authority following reinstatement to consider both his own and plaintiff's motion. Governale does not support defendant's argument that the sale of the property was "invalid" becausethe trial court was without authority to confirm the sale at the time of Azran's bid.

To determine whether the trial court properly confirmed the sale under the circumstancespresented in this case, we turn to section 15--1508(b) of the Foreclosure Law. Section 15--1508(b)provides, in relevant part:

"Upon motion and notice in accordance with court rulesapplicable to motions generally, which motion shall not be made priorto sale, the court shall conduct a hearing to confirm the sale. Unlessthe court finds that (i) a notice required in accordance with subsection(c) of Section 15-1507 was not given, (ii) the terms of sale wereunconscionable, (iii) the sale was conducted fraudulently or (iv) thatjustice was otherwise not done, the court shall then enter an orderconfirming the sale." (Emphasis added.) 735 ILCS 5/15-1508(b)(West 2000).

Section 15--1508(d) further provides that, absent a failure to provide required notice, "no[foreclosure] sale *** shall be held invalid or be set aside because of any defect in *** theproceedings of the officer conducting the sale, except upon good cause shown pursuant to [section15--1508(b)]." 735 ILCS 5/15-1508(d) (West 2000).

The plain language of section 15--1508(b) requires the trial court to confirm a foreclosuresale unless the trial court finds following a hearing that: (1) notice was not properly given; (2) theterms of the sale were unconscionable; (3) the sale was conducted fraudulently; or (4) justice wasnot done. 735 ILCS 5/15-1508(b) (West 2000). Azran did not argue or present evidence that anyof these four grounds existed to justify setting aside the sale. Accordingly, the trial court wasrequired to confirm the sale. 735 ILCS 5/15-1508(b) (West 2000); 735 ILCS 5/15-1105(b) (West2000) (the "word 'shall' *** means mandatory and not permissive").

CONCLUSION

For the foregoing reasons, the judgment of the circuit court confirming the sale of theproperty in this case is affirmed.

Affirmed.

McNULTY and COUSINS, JJ., concur.

1. See Yugoslav-American Cultural Center, Inc. v. Parkway Bank & Trust Co., 327 Ill. App.3d 143, 148 (2001) (explaining that the calendar call is an "annual event held for purposes ofdismissing old, inactive cases").

2. The May 3, 2000, judgment-while not disposing of all matters arising out of theforeclosure-was rendered final and appealable by the trial court's inclusion of language indicatingthat there was "no just reason to delay in the enforcement of or appeal from this final judgmentorder." See 155 Ill. 2d R. 304(a); Jo Jan Corp. v. Brent, 182 Ill. App. 3d 70, 73 (1989) (judgmentof foreclosure which includes Supreme Court Rule 304(a) finding is final and appealable). Nopostjudgment motion was filed and the judgment of foreclosure was not appealed. The trial courtlost jurisdiction to modify or vacate the final judgment of foreclosure 30 days after entry of thatjudgment. Beck v. Stepp, 144 Ill. 2d 232, 238 (1991). As a result, the final judgment of foreclosurewas unaffected by the March 15, 2001, dismissal for want of prosecution. See Allstate InsuranceCo. v. Anderson, 329 Ill. App. 3d 93, 95-96 (2002).