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FOURTH DIVISION
FILED: November 16, 2000

In this mortgage foreclosure action, defendant, AmerUs Bank,n/k/a Commercial Federal Bank (Commercial), appeals from ordersof the circuit court which denied Commercial's motion to strikeportions of the affidavit of the third-party purchaser-appellee,Dorota Wasik, and which confirmed the sale of the residence ofdefendants Min Suek Lee and Cindy Lee to Wasik. We affirm.

On April 24, 1998, plaintiff World Savings and Loan Association filed in the trial court a complaint seeking toforeclose on a mortgage which the Lees executed in the principalamount of $182,500. The complaint named the Lees and a secondarymortgagee, AmerUs Bank, Commercial's predecessor in interest, asdefendants. The complaint alleged that the Lees defaulted ontheir mortgage installment payments and that an outstandingprincipal balance of $161,865.59 remained. The complaint furtheridentified Commercial as a secondary mortgagee in a mortgagesecuring notes for $74,300 and $60,000. Commercial submittedproof that, on these notes, unpaid principal balances of$69,520.88, and $56,030.95, respectively, remained due from theLees.

On September 30, 1998, finding that the Lees had beenproperly served by publication, the trial court entered ajudgment of foreclosure by default in the amount of $182,893.95. The judgment provided in pertinent part:

"[I]f the premises shall not be redeemed accordingto and within the time provided by law, *** then thereal estate hereinabove described *** [shall] be soldat public vendue to the highest bidder by the Sheriff
of the County wherein the property in question is located.

*** That said Sheriff upon making such sale, shall ***report the same to the Court for its approval andconfirmation, and he shall likewise report thedistribution of the proceeds of sale and his acts anddoings in connection therewith; that he may acceptplaintiff's receipt for its distributive share of theproceeds of sale in lieu of cash; that, in lieu of cashhe may accept the receipt of any party to thisproceeding found herein to have a lien on the propertyin question for said party's distributive share of theproceeds of sale for those amounts over and above theamounts due to Plaintiff ***."

The published notice of sale provided that the "[s]ale shallbe under the following terms: Cash." The sale took place onMarch 9, 1999, at 12 p.m. According to the sheriff's report ofsale, dated March 10, 1999, Wasik was the high bidder with a bidof $191,918.90. The report further states that the sheriffreceived payment from Wasik in the amount of the bid.

On April 6, 1999, plaintiff moved for an order confirmingthe sale to Wasik. Commercial opposed the confirmation of thesale on the grounds that the sale price was inadequate and thatthe sheriff failed to follow the terms of sale as provided in thejudgment of foreclosure and the published notice of sale. Commercial submitted with its response to plaintiff's motion anappraisal dated April 13, 1999, which valued the subject propertyat $260,000. The appraisal report states that no inspection wasmade of the interior of the Lees' home.

Commercial also submitted the affidavits of Thomas Brennan,Erick J. Bohlman, and Crystal Zeigler. In his affidavit, Brennanstated that he is an employee of Commercial and that, on March 8,1999, he wire transferred $26,970 to Superior Bank for depositinto the account of the law firm representing Commercial at theforeclosure sale.

In his affidavit, Bohlman stated that he was the attorneyrepresenting Commercial at the foreclosure sale. While attendingthe sale, he learned that the funds which were the subject of thewire transfer had not yet been deposited into his firm's account. He obtained plaintiff's permission to bid without cash on handprovided that he obtained the cash before 5 p.m that day. At thesale, Bohlman submitted a bid on behalf of Commercial whichturned out to be the highest bid. After the bidding, Bohlmanadvised the deputy sheriff conducting the sale that he did nothave cash on hand and of his agreement with plaintiff. Thedeputy sheriff decided that this was unacceptable and held thesale over.

In her affidavit, Zeigler stated that she was an employee ofSuperior Bank and that the bank received the wire transfer fromCommercial at 4:50 p.m. on March 8, 1999. The bank inadvertentlydelayed crediting the law firm's account until March 10, 1999.

Commercial also moved to strike portions of an affidavit inwhich Wasik described how she changed her position in reliance onher status as the high bidder at the sale. In the affidavit,Wasik stated that, in reliance on her successful bid, shecontracted to sell her home on April 3, 1999, in anticipation ofmaking the subject property her home. On April 6, 1999, sheagreed to change the closing date for the sale of her home fromJune 4, 1999, to May 21, 1999.

At the April 22, 1999, hearing on the motions, plaintiff,Commercial, and Wasik stipulated that, after the deputy sheriffrejected the sale to Commercial, a second round of bidding tookplace. Wasik was the high bidder the second time. Immediatelyafter the sale, Wasik put down a 10% deposit and paid the balanceof the sale price the following day. The parties also stipulatedthat three other foreclosure sale notices appearing in the samepublication as the notice in this matter stated the terms of saleas 10% cash down. There was an additional stipulation to admitphotographs which tended to show the poor condition of theinterior of the premises.

Also at the hearing, the deputy sheriff who presided overthe sale testified that the formal policy of the sheriff'sdepartment is that a party purchasing property at a foreclosuresale must put down 10% of the sale price in the form of cash or acertified cashier's check at the time of the sale and must paythe balance within 24 hours. He further testified that, beforeevery sale, he announces this policy to those present to bid onthe property and that he made such an announcement beforecommencing the bidding on March 9, 1999.

The trial court denied Commercial's motion to strike thedisputed portions of Wasik's affidavit because it believed thatthe facts asserted therein were relevant in addressing theequitable considerations arising as a result of the sale. Inissuing its ruling regarding the confirmation of the sale, thetrial court stated:

"Number 1, I would find that notice has beengiven. There has been nothing proven with regard tothe sale being fraudulent of anything. No one hasreally alleged that.

I don't think that it is unconscionable ***.

*** Commercial is not a stranger to the world ofmortgages. And I think that counsel for the plaintiffis correct that this is the procedure and it has beenused. It has been the custom, as I understand it, formany, many years. And I think that Commercial knew itthen.

The person came in and bid on it. Nothing tellsme that she is not a bona fide purchaser, that therewas anything fraudulently done or anything else to thateffect.

***

I think that in the balancing of the equities, thepurchaser did sell her other house. She put herself ina great deal of peril ***.

Conversely, *** I don't see the damage toCommercial. I think that Commercial knows how tocollect their money and I think they probably will."

Accordingly, the trial court entered an order whichconfirmed the sale and distribution of proceeds and awardedpossession of the subject property to Wasik. In its writtenorder, the trial court further found that "said Sheriff hasproceeded in due form of law, and in accordance with the terms ofthe Judgment previously entered herein *** and that, the Sale wasconducted pursuant to the Notice of Sale which was in proper formand published pursuant to the requirements of applicable law." This timely appeal followed.

On appeal, Commercial argues that the trial court abused itsdiscretion in confirming the sale. In connection with thisgeneral argument, Commercial also contends that the trial courtcommitted reversible error by admitting and considering evidencethat Wasik sold her home in reliance on her status as thesuccessful bidder at the sale. Finally, Commercial argues thatthe actions of the deputy sheriff who conducted the sale and thesubsequent action of the trial court in confirming the sale hadthe effect of depriving Commercial of its interest in the subjectproperty without due process of law.

Section 15-1508 of the Illinois Mortgage Foreclosure Law(Mortgage Foreclosure Law) governs the confirmation of aforeclosure sale and provides in relevant part:

"(b) Hearing. Upon motion and notice in accordancewith court rules applicable to motions generally, whichmotion shall not be made prior to sale, the court shallconduct a hearing to confirm the sale. Unless thecourt finds that (i) a notice required in accordancewith subsection (c) of Section 15-1507 was not given,(ii) the terms of sale were unconscionable, (iii) thesale was conducted fraudulently or (iv) that justicewas otherwise not done, the court shall then enter anorder confirming the sale ***.

(c) Failure to Give Notice. If any sale is heldwithout compliance with subsection (c) of Section 15-1507 of this Article, any party entitled to the noticeprovided for in paragraph (3) of that subsection (c)who was not so notified may, by motion supported byaffidavit made prior to confirmation of such sale, askthe court which entered the judgment to set aside thesale, provided that such party shall guarantee orsecure by bond a bid equal to the successful bid at theprior sale. ***

(d) Validity of Sale. Except as provided insubsection (c) of Section 15-1508, no sale under thisArticle shall be held invalid or be set aside becauseof any defect in the notice thereof or in thepublication of the same, or in the proceedings of theofficer conducting the sale, except upon good causeshown in a hearing pursuant to subsection (b) ofSection 15-1508. ***" 735 ILCS 5/15-1508 (West 1998).

A court is justified in disapproving a judicially mandatedforeclosure sale if unfairness is shown which is prejudicial toan interested party. Commercial Credit Loans, Inc. v. Espinoza,293 Ill. App. 3d 923, 927 (1997) (Espinoza). Trial courts havebroad discretion in approving or disapproving sales made at theirdirection. Fleet Mortgage Corp. v. Deale, 287 Ill. App. 3d 385,388 (1997).

Commercial's first contention on appeal is that the trialcourt should not have confirmed the sale because the sale did notconform to the terms set forth in the judgment of foreclosure andthe published notice of sale. According to Commercial, byallowing Wasik to pay 10% of the sale price at the time of thesale and the balance within 24 hours, the deputy sheriff violatedthe judgment of foreclosure, which Commercial contends providedonly for a strictly cash sale, with a limited exception forlienholders.

Section 15-1507(b) of the Mortgage Foreclosure Law directsthat "the real estate shall be sold at a sale *** on such termsand conditions as shall be specified by the court in the judgmentof foreclosure." 735 ILCS 5/15-1507(b) (West 1998). Where anorder of the court directs the manner of the sale of real estate,the officer making the sale derives his authority to do so fromthe order of the court alone. Moore v. Sievers, 336 Ill. 316,322 (1929). It is his duty to conform to the court order, and,unless he follows the directions of the order or decree, his actswill be set aside. Barnes v. Swedish American National Bank, 371Ill. 20, 28 (1939); Ehrgott v. Seaborn, 363 Ill. 292, 296 (1936).

The judgment of foreclosure provides that, if the Leesfailed to redeem the subject property within the prescribed timelimits, then the property would "be sold at public vendue to thehighest bidder." The judgment further provides in essence thatthe sheriff may accept from any party with a lien on the propertytheir receipt for their "distributive share of the proceeds ofsale in lieu of cash."

A review of the entire judgment of foreclosure reveals thatthere is no specific requirement of a cash sale. At best, thelanguage just quoted suggests that the judgment contemplated acash sale. Neither the judgment nor the published notice of salecontains a specific requirement that the successful bidder musttender the full sale price in cash on the day of the sale.

Ehrgott provides a useful example of the type of deviationfrom the court order which would provide cause for setting asidea judicial sale. There, the successful bidder appealed from anorder setting aside the sale to him. The terms of sale requireda cash payment of either the entire sale price or one-third ofthe sale price on the day of the sale, with the remaining balanceplus 6% interest due one year after sale, as the purchaser mayelect. The successful bidder tendered less than one-third of hisbid on the day of the sale. The reviewing court held that,because the officer conducting the sale had no authority toaccept less than one-third of the sale price, the trial courtacted within its discretion in setting aside the sale. Ehrgott,363 Ill. at 296.

The court in Ehrgott cited Compton v. McCaffree, 220 Ill.137 (1906). The Compton court held that, where the terms of salerequired that the entire sale price be paid in cash on the day ofthe sale, the purchaser's failure to tender the cash paymentuntil two days after the sale, when combined with otherirregularities, was a substantial departure from the terms ofsale which would warrant the trial court's disapproval. Compton,220 Ill. at 140-41.

In both Ehrgott and Compton, there were clear departuresfrom sale terms which specifically required the purchasers totender a certain amount of cash on the day of the sale. Theforeclosure judgment in this matter contains no such requirement. Thus, the trial court reasonably could have concluded that, byaccepting 10% of the sale price from Wasik at the time of thesale and the remaining balance within 24 hours, the sheriff didnot violate any of the terms of the judgment of foreclosure. Indeciding this issue, the trial court was interpreting its ownorder and was therefore in a better position to determine whetherthe deputy sheriff complied with its terms.

Also, the trial court reasonably could have concluded thatthe deputy sheriff correctly held over the sale upon learningthat Commercial did not have cash on hand at the time of thesale. As we have noted, the judgment of foreclosure could beinterpreted as contemplating a cash sale of some sort. AlthoughCommercial represented that it would have cash available by 5p.m. that day, the record does not reveal that there were anyassurances that this would be the case. In fact, the recordreveals that the cash in question did not become available untilthe following day.

Moreover, by arranging for a wire transfer of only $26,970,Commercial clearly did not make preparations to pay the fullamount of its bid on the day of the sale, as it contends was therequirement. The trial court reasonably could have concluded,therefore, that the deputy sheriff's actions in ultimatelyaccepting the bid of Wasik, who had cash on hand, over the bid ofCommercial, which had no cash on hand, did not result in unfairprejudice to Commercial.

Commercial contends that the better procedure to avoidunfairness under the circumstances would have been for the deputysheriff to adjourn the sale and seek guidance from the trialcourt regarding the propriety of accepting only a 10% cashpayment. The problem with this contention is that the deputysheriff's actions did not constitute a departure from the termsof the judgment of foreclosure or the notice of sale. To give aparty in Commercial's position the ability to delay a sale anytime the order does not directly address an issue which arises atthe sale could have serious implications for the orderlyadministration of judicial sales.

Admittedly, the judgment of foreclosure here is not a modelof clarity. Had the judgment contained more specific terms ofsale like the orders in Ehrgott and Compton, this dispute couldhave been avoided. In any event, the circumstances surroundingthis sale did not give rise to irregularities which would haverequired the trial court to set it aside.

Commercial makes additional assertions regarding the trialcourt's finding that none of the factors set forth in section 15-1508(b) of the Mortgage Foreclosure Law were present here. Inconnection with the notice factor in section 15-1508(b)(i), itcontends that, if the sheriff's alleged unilateral change in theterms of the sale is allowed, then the notice of sale wouldthereby be rendered defective, as the notice did not provide forterms of 10% down at the time of the sale with the remainingbalance to be paid within 24 hours.

Section 15-1507(c)(1)(G) of the Mortgage Foreclosure Lawrequires that the notice of sale contain, among other things, theterms of the sale. 735 ILCS 5/15-1507(c)(1)(G) (West 1998). That subsection also provides, however, that an "immaterial errorin the information shall not invalidate the legal effect of thenotice." 735 ILCS 5/15-1507(c)(1) (West 1998). Also, pursuantto section 15-1508(d), Commercial cannot establish that the salewas invalid merely by asserting that the notice did not containthe specific terms of sale. Instead, it must show "good cause"for setting aside the sale. Cragin Federal Bank For Savings v.American National Bank & Trust Co., 262 Ill. App. 3d 115, 120(1994). Because the deputy sheriff in essence conducted a cashsale, the trial court reasonably could have concluded that theterms of sale as stated in the notice contained no materialerrors sufficient to invalidate its legal effect.

Commercial claims that the failure of the notice of sale tomention the specific terms was material. According toCommercial, potential bidders, some of whom may have been willingto bid more than the ultimate sale price, may have interpretedthe terms of sale as requiring a full cash payment at the time ofthe sale and, unable to meet such a requirement, were discouragedfrom attending.

The burden of having the full purchase price on hand for thesale is not materially greater than the burden of having to paythe full purchase price within 24 hours of the sale. Thus, thetrial court reasonably could have concluded that the possibilitythat the claimed deficiency in the notice would materially affectthe outcome of the sale or the rights of an interested party wasremote and speculative and that this did not constitute "goodcause" for setting aside the sale.

In connection with its claim that the terms of the sale wereunconscionable under section 15-1508(b)(ii), Commercial arguesthat, because of the inadequate sale price and otherirregularities surrounding the sale, the trial court abused itsdiscretion in confirming the sale. The purchase price of aproperty at a foreclosure sale is one of the "terms of sale" asthat phrase is used in the statute. Berkeley Properties, Inc. v.Balcor Pension Investors II, 227 Ill. App. 3d 992, 999 (1992). Commercial acknowledges that, in the absence of mistake, fraud orviolation of duty by the officer conducting the sale, mereinadequacy of price is not a sufficient reason to disturb ajudicial sale. Resolution Trust Corp. v. Holtzman, 248 Ill. App.3d 105, 114 (1993). This rule is premised on the policy whichprovides stability and permanency to judicial sales and on thewell-established acknowledgment that property does not bring itsfull value at forced sales and that the price depends on manycircumstances for which the debtor must expect to suffer a loss. First Bank & Trust Co. v. King, 311 Ill. App. 3d 1053, 1059(2000); Resolution Trust Corp., 248 Ill. App. 3d at 114.

Here, the trial court reasonably could have concluded theactual value of the subject property was not as high as reflectedin the appraisal. The appraiser made no inspection of theinterior of the premises, and the report therefore did notaccount for the poor condition of the interior as reflected inthe photographs which Wasik submitted at the confirmationhearing. There is no requirement that foreclosed property besold for its appraised value, which may or may not reflect theprice that could be obtained upon sale of the property. IlliniFederal Savings & Loan Ass'n v. Doering, 162 Ill. App. 3d 768,773 (1987).

Moreover, when compared to the $260,000 appraised value, thesale price of $191,918.90 was not "'so grossly inadequate that itshocks the conscience of a court of equity.'" Resolution TrustCorp., 248 Ill. App. 3d at 113, quoting Levy v. Broadway-CarmenBuilding Corp., 366 Ill. 279, 288 (1937). For example, inEspinoza, the court affirmed the trial court's refusal to confirmthe sale where the mortgagee's successful bid was only one-sixthof the appraised value of the property and there was evidencethat the mortgagee treated the mortgagor unfairly when sheattempted to pay the amount required to claim her property. Espinoza, 293 Ill. App. 3d at 927-28. No such alarming disparityin price exists here.

Even if the sale price could be considered inadequate, itdoes not appear that the trial court abused its discretion inconcluding that no other irregularities were present which wouldjustify setting aside the sale. As we stated earlier, the mannerin which the deputy sheriff conducted the sale did not prejudiceCommercial.

Commercial makes additional assertions in connection withits general claim that "(iii) the sale was conducted fraudulentlyor (iv) that justice was otherwise not done." 735 ILCS 5/15-1508(b)(iii), (b)(iv) (West 1998). It argues that the trialcourt committed reversible error by admitting and consideringevidence that Wasik sold her home in reliance on her status asthe successful bidder at the sale.

Commercial correctly notes that a judicial foreclosure saleis not complete until the trial court confirms it. BCGS, L.L.C.v. Jaster, 299 Ill. App. 3d 208, 212 (1998). The highest bid ata judicial sale is merely an irrevocable offer to purchase theproperty, and acceptance of the offer takes place when the courtconfirms the sale. Citicorp Savings v. First Chicago Trust Co.,269 Ill. App. 3d 293, 300 (1995). Until the court confirms thesheriff's proceedings, there is not a true sale in the legalsense. Citicorp Savings, 269 Ill. App. 3d at 300.

According to Commercial, under these principles, the sale toWasik was not complete and was contingent upon the trial court'sconfirmation. Thus, any preconfirmation action Wasik may havetaken in reliance upon her successful bid was not reasonable.

We agree that Wasik should not be able to strengthen herposition relative to other interested parties through herunilateral actions before confirmation. Because the deputysheriff rejected the sale to Commercial and initiated a secondround of bidding, Wasik should have known that a challenge to thesale was likely. Accordingly, we believe that the trial court'sconsideration of the disputed evidence regarding the sale ofWasik's residence was improper.

The trial court's consideration of this evidence does notwarrant a reversal here, however. It does not appear that thetrial court considered the information in Wasik's affidavit asconclusively establishing her right to have the sale confirmed. It was merely one factor which the trial court considered when itbalanced the equitable considerations arising in this matter.

It is proper for a trial court to balance the hardship thatwould result to a third-party bidder if the sale is not confirmedagainst the hardship which would result to other interestedparties if the sale to the third-party bidder is confirmed. Fleet Mortgage Corp., 287 Ill. App. 3d at 390. Here, the trialcourt could consider that Wasik intended to make the subjectproperty her residence, the hardship that would result to her ifthe sale were not confirmed, and the fact that none of theclaimed irregularities in the administration of the sale wereattributable to her.

The trial court considered the potential hardship toCommercial if the sale were confirmed but found that any suchhardship was mitigated because Commercial could attempt torecover the debt from the Lees through other means. Thehardships which Commercial and the Lees allegedly have sufferedare a natural result of any sale to a third-party bidder. Thecause of these claimed hardships was an inadvertent delay in theposting of a deposit and not any improper conduct in connectionwith the sale. Thus, the trial court properly concluded that thesale to Wasik did not result in any injustice to Commercial orother interested parties.

Finally, we address Commercial's due process claim. According to Commercial, by following its own customaryprocedure, the sheriff unilaterally changed the terms of sale asstated in the judgment of foreclosure and the published noticewithout providing the interested parties notice or an opportunityto be heard.

Procedural due process rules serve to protect persons fromthe mistaken or unjustified deprivation of life, liberty, orproperty. East St. Louis Federation of Teachers, Local 1220 v.East St. Louis School District No. 189 Financial Oversight Panel,178 Ill. 2d 399, 415 (1997). The fundamental requirements of dueprocess are notice and an opportunity to be heard at a meaningfultime and in a meaningful manner. Quantum Pipeline Co. v.Illinois Commerce Comm'n, 304 Ill. App. 3d 310, 320 (1999). Thenotice must be reasonably calculated to apprise interestedparties of the contemplated action and to afford them anopportunity to present their objections. Stratton v. WenonaCommunity Unit District No. 1, 133 Ill. 2d 413, 432 (1990).

There is no dispute that Commercial possessed a recognizableproperty interest in the subject real estate. If, as Commercialclaims, both the judgment of foreclosure and the published noticeof sale required a full cash payment at the time of the sale,then Commercial received adequate notice of what it needed to doto protect its interest in the property. As we noted earlier,Commercial did not even make arrangements to satisfy thispurported requirement because it arranged to have only $26,970available on the day of the sale. If anything, the deputysheriff's alleged change in the terms of sale relaxed therequirements and thus benefitted Commercial. For this reason,Commercial is not a position to complain that proceduralunfairness resulted when the deputy sheriff rejected its bid forfailure to have cash on hand and accepted Wasik's bid after a 10%cash down payment.

Neither the actions of the deputy sheriff nor those of thetrial court deprived Commercial of a reasonable opportunity to beheard. Commercial had an opportunity to present its arguments atthe confirmation hearing, before the final adjudication of itsrights in the property. As Commercial recognizes, until thetrial court confirms it, the sale is not final. Therefore, thisis not a situation where the actions of the sheriff's departmenthad the effect of unilaterally depriving Commercial of itsproperty rights without notice or an opportunity to be heard.

For these reasons, we find that the trial court did notabuse its discretion or violate Commercial's due process rightswhen it confirmed the sale to Wasik. Accordingly, the judgmentof the circuit court is affirmed.

Affirmed.

HARTMAN, P.J., and SOUTH, J., concur.