Failure to Show Up in Court Will Not Help You Defend Your Foreclosure Case

Surprise, surprise.  If you don’t show up in court to defend your foreclosure, you can’t claim the judge treated you unfairly later.  A recent appellate case, Deutsche Bank National Trust Co. v. Nichols, 2013 IL App (1st) 120350 (August 30, 3013) Cook Co., 6th Div., serves as a case in point.

In Deutsche Bank, the lender served notice of foreclosure upon the defendant in April 2011.  The defendant never responded, and in July 2011, the court entered the bank’s motion for default judgment.

In mid-November, the defendant asked for leave to file an answer to the original complaint of foreclosure, but the court denied the defendant’s request, since the defendant had been served 7 months ago and judgment of foreclosure had already been entered.  The defendant then filed a petition to substitute judges, and set it for January 26, 2012.  The bank filed a motion requesting the court to approve the sale of the property, and set it for January 25, 2012.

The defendant did not show up in court on either January 25 or 26, to contest the bank’s motion or argue its own motion.  The court entered the order approving the sale, and the defendant appealed, on the grounds that the judge lacked the authority to enter the final judgment since the motion for substitution of judges was still pending.  After a great deal of analysis, the court pointed out that pursuant to existing law, the filing of a motion to substitute judges does not void any final order.  In order to void the final order, the defendant would have to show that the petition to substitute judges was improperly denied. 

In this case, the defendant never showed up to argue its motion for subsitution.  The motion was never ruled on at all. Therefore it certainly wasn’t denied.  Bottom line, the court felt that a motion to substitute judges should not be used to delay a case.

What does this mean for you?  Well, if you’re being foreclosed and you want to contest it, show up in court.  Do something about it now before it’s too late!