Opinion
5-22-0489
07-07-2023
FCB BANKS, f/k/a First County Bank, Plaintiff-Appellee, v. DANIEL WEAVER, Defendant-Appellant.
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of St. Clair County. No. 20-CH-294 Honorable Thomas B. Cannady, Judge, presiding.
PRESIDING JUSTICE BOIE delivered the judgment of the court. Justices Welch and Moore concurred in the judgment.
ORDER
BOIE PRESIDING JUSTICE.
¶ 1 Held: The trial court did not abuse its discretion in denying the defendant's request for a continuance on the grounds that he had a medical appointment scheduled for the day of trial where the defendant did not set the motion for a hearing, failed to provide any supporting documentation, and did not allege that he was unable to schedule the appointment for a different day. The remainder of the defendant's arguments are forfeited where he has not supported his claims with argument or citations to applicable legal authority.
¶ 2 The defendant, Daniel Weaver, appeals the trial court's judgment in this foreclosure action. At issue is the foreclosure and sale of two commercial properties in Belleville secured under a single mortgage. Weaver has a longstanding relationship with the plaintiff, FCB Banks, f/k/a First County Bank (FCB), which includes loans on other properties and at least one vehicle. In this appeal, he argues that the trial court abused its discretion in denying his request for a continuance. He also makes numerous allegations of wrongdoing on the part of FCB. Some of these allegations are related to the properties at issue in this appeal, while others are related to other properties and the vehicle loan. Weaver contends that the actions of FCB and the moratoriums on evictions in place during the COVID-19 pandemic deprived him of the ability to pay the loan at issue. He further asserts that the properties involved in this action were sold for far less than their fair market value at the foreclosure sale. Although he does not offer any specific arguments regarding the propriety of the court's decisions to enter an order of foreclosure and to confirm the subsequent foreclosure sale, he seems to implicitly argue that FCB was not entitled to a judgment of foreclosure or an order confirming the sale because of its alleged wrongdoing, the COVID-19 restrictions, and the allegedly below-market sale price of the properties. We affirm the trial court's rulings.
¶ 3 I. BACKGROUND
¶ 4 On October 20, 2020, FCB filed a three-count complaint at issue in this appeal. In count I, FCB sought a foreclosure judgment against Weaver and Susan K. Horst. At issue was a 2014 mortgage on a property located at 3 Judith Drive in Belleville. The complaint alleged that Horst was in possession of the property and was its record owner, but that Weaver was the mortgagor and was therefore responsible for any deficiency. Counts II and III of the complaint sought relief only against Weaver. In count II, FCB requested a foreclosure judgment involving a 2010 mortgage on two Belleville properties-5 A&B Lakewood Drive and 543-545 North 74th Street. Count III involved promissory notes signed by Weaver. Count I was dismissed with prejudice prior to trial at the request of FCB because the mortgage at issue was paid in full in January 2021. Count III was voluntarily dismissed without prejudice on the day of the trial. Thus, only count II is at issue in this appeal.
¶ 5 At a June 2021 status hearing, the case was set for trial on September 23, pursuant to the parties' agreement. We note that, although the record contains a partial transcript of that status hearing, the court and parties discussed the trial setting off the record. Both parties have alleged in later pleadings and on appeal that (1) during this discussion, Weaver informed the court that he might need to seek a continuance due to upcoming medical procedures, and (2) the court told him to file any motions requesting a continuance at least several weeks before trial.
¶ 6 On August 27, 2021, Weaver filed the first of three pro se motions to continue the trial. In it, he alleged that he suffered from arthritis and spinal stenosis, which would require surgery. He further alleged that he had a nerve conduction study scheduled for September 13 and an appointment with a neurosurgeon scheduled for September 23, the day of the trial. He alleged that he would schedule the necessary back surgery "for October or early November 2021," and that he had foot surgery scheduled late in November 2021. Weaver requested a continuance of 90 days, asserting that the delay was necessary due to a "medical condition that will require extensive treatment for a period of at least 90 days" after the September 23 trial setting. Although Weaver alleged that the September 23 appointment had been scheduled the day before he filed his motion, he did not allege that he attempted to schedule the appointment for a different day or that it was impossible for him to do so. He did not attach any affidavits and he did not notice the motion for a hearing.
¶ 7 Weaver filed two more motions to continue the trial on September 14 and September 20, 2021. In each motion, he alleged that he had previously filed a motion to continue and that the court had not ruled on his motion. Weaver alleged that he would be treated for severe back pain, which would involve "several applications" and would require him to remain motionless and unable to drive "for several days." In the September 14 motion, he did not specify when any of the needed treatment was to take place, but he did allege in the September 20 motion that he would receive treatment on September 23, the day of the trial. Weaver did not support either motion with affidavits or other documentary evidence, and he did not notice either motion for a hearing.
¶ 8 On September 20, 2021, FCB filed an objection to Weaver's request for a continuance, which addressed the motion filed by Weaver on September 14. We note that FCB attorney Kevin Stine later told the court he did not receive a copy of the motion Weaver filed in August 2021. In its objection, FCB acknowledged that Weaver brought to the court's attention the possibility that he might request a continuance due to medical treatment he was to receive. FCB noted that the court directed Weaver to make any such requests at least several weeks before trial. It alleged that its attorney did not receive the motion until September 20. It argued that Weaver's request should be denied because (1) the motion was not supported by an affidavit from his physician or other documentary evidence and (2) any delay would be "unnecessary and unfair" to FCB.
¶ 9 The matter came for trial on September 23, 2021, as scheduled. Weaver was not present. At the outset, the court addressed Weaver's outstanding motions and FCB's objection. Asked the basis for FCB's objection, attorney Stine first informed the court that he never received the first motion filed by Weaver and that he could not address its contents. Stine argued that in the two motions he did receive, Weaver "just state[d] that he plan[ned] to have some procedures" without pointing to a specific scheduling conflict.
¶ 10 In ruling from the bench, the trial judge first noted that Weaver did not set any of his motions for a hearing. He stated that he was familiar with Weaver from other proceedings and explained that Weaver knew enough about court procedures to know that he was required to set his motions for a hearing. The judge stated, "I am not going to continue the case based on a possible medical appointment that he could have unilaterally scheduled."
¶ 11 The court then allowed FCB to present its evidence. It presented documentary evidence as well as the testimony of FCB collection litigation specialist Barbara Ashford. That evidence showed that the parties originally entered into a mortgage agreement in September 2010. The original agreement called for Weaver to repay the loan of $142,604 in monthly installments with an interest rate of 5.75% and a maturity date of September 6, 2015. The parties subsequently executed three modifications to the mortgage which lowered the interest rate to 5% and extended the maturity date, first to August 6, 2017, then to May 6, 2022. The mortgage also required Weaver to pay the property taxes on the two properties and to maintain an insurance policy naming FCB as an "additional loss payee."
¶ 12 FCB presented evidence that Weaver failed to pay the 2019 and 2020 taxes on both properties. It also presented evidence that Weaver failed to maintain insurance on the properties, naming FCB as an additional loss payee. In addition, FCB presented evidence that Weaver had not made the required payments after February 20, 2020. Finally, FCB entered into evidence a waiver of the right of redemption executed by the parties and recorded in October 2019. Although Weaver asserts that he was "strong-armed" into signing this waiver, we note that the document states that his waiver was in consideration for FCB's entering into an agreement to forbear.
¶ 13 The court entered a judgment of foreclosure on count II of the complaint. As noted previously, the court also entered an order dismissing count III of the complaint without prejudice at the request of FCB.
¶ 14 On September 27, 2021, Weaver filed a motion to vacate the judgment of foreclosure. In it, he alleged that the court was aware of his medical issues and argued that he complied with the court's instruction to file a motion for a continuance several weeks before the trial date.
¶ 15 On October 4, Weaver filed a "motion to supply additional evidence to vacate judgment." He repeated the allegations of his initial motion to vacate judgment. He further alleged that COVID restrictions and a fire in another building he owned interfered with his ability to make his required payments, and that FCB sent the title of a vehicle he owned out of state. Attached to the motion were medical records showing that he had appointments related to his back surgery on September 13 and 23, 2021. An "after visit summary" dated September 15, 2021, indicated that Weaver's back surgery was scheduled for January 14, 2022.
¶ 16 On October 14, 2021, Weaver filed a second motion to vacate the judgment. In it, he asserted that by naming Susan Horst as a defendant, FCB slandered her, violated her civil rights, and ruined her credit rating.
¶ 17 On October 15, 2021, while his three motions were still pending, Weaver filed a notice of appeal. This court dismissed the appeal for lack of jurisdiction because there was no final and appealable order. We explained that in a foreclosure case, the order confirming the sale is the final and appealable order, not the judgment of foreclosure. See EMC Mortgage Corp. v. Kemp, 2012 IL 113419, ¶ 11.
¶ 18 On March 14, 2022, shortly after the appellate mandate was issued, the trial court held a hearing on the three motions filed by Weaver in September and October of 2021. The court denied all three motions on March 17, 2022.
¶ 19 On March 30, FCB filed a notice of sale and proof of sending the notice of sale. The foreclosure sale was set for May 13, 2022.
¶ 20 On April 14, 2022, Weaver filed a "Motion to Reconsider and Amend." He alleged that Susan Horst paid off the loan on 3 Judith Drive on January 7, 2021, and that she had no interest in the other properties involved in this litigation. He asserted that naming her as a defendant was therefore malicious, and he alleged that she suffered "undue stress" and experienced "a decline in a perfect credit rating" as a result. He further argued that the court's decision to deny his motions for a continuance demonstrated "extreme bias and discrimination" against Horst and bias against Weaver. As relief, he requested that the court remove Horst's name from any remaining actions and "have FCB Banks print a retraction" and inform all credit bureaus of its mistake.
¶ 21 The court held a hearing on the motion on April 28, 2022. In an order entered that day, the court ordered that Susan Horst's name be removed from the case caption, noting that count I of the complaint had been dismissed with prejudice. The court stated that Weaver withdrew his other pending motions.
¶ 22 The foreclosure sale took place on May 13, 2022. That day, FCB filed a motion for an order confirming the sale, an eviction order, and a deficiency judgment. FCB also requested an order approving the report of sale, which it likewise filed that day.
¶ 23 A hearing on FCB's motion was set for May 24, 2022. That morning, Weaver filed a motion to deny confirmation of sale. He alleged that FCB committed fraud by sending the title of a vehicle to Kansas, thus costing Weaver over $60,000. He further alleged that FCB "absconded with" insurance proceeds of over $155,000 related to a fire in a rental building Weaver owned. He asserted that this cost him over $393,000. Weaver alleged that FCB "perpetrated fraud on a property of 3 Judith Drive" by failing to provide notice to Weaver and Horst of the date on which the mortgage would be due in full. He alleged that this increased the cost of paying off the mortgage on that property by approximately $2100. Weaver also alleged that the moratorium on evictions during the COVID pandemic cost him over $61,000. Finally, he alleged that he could have presented the court with evidence to support these allegations had the court granted his requests to continue the trial due to his serious health issues.
¶ 24 Attached to the motion were copies of a loan payoff statement showing that the mortgage for 3 Judith Drive was paid in full in January 2021, the certificate of title to a 2013 Toyota Avalon, and a December 2014 letter to Weaver from the county treasurer of Jefferson County, Kansas. The letter informed Weaver that the current owners of the 2013 Toyota Avalon were Weaver and Tammy Roberts. It explained that under Kansas law, a request to remove his name from the title required the lienholder's consent to a transfer of ownership. The letter further explained that because the lienholder, FCB, would not consent, the title could not be transferred to Roberts's name alone and ownership remained in both her name and Weaver's. The county treasurer suggested that if the vehicle was in Weaver's possession, he should consider seeing if he could register the vehicle in his county. Also attached to Weaver's motion were copies of documents from small claims cases in which Weaver obtained and attempted to collect a judgment against Roberts.
¶ 25 At the beginning of the May 24, 2022, hearing in this case, Weaver called his motion to the attention of the court. He noted that he did not file it earlier because he did not receive a copy of FCB's motion until the previous day. At Weaver's request, FCB attorney Kevin Stine gave the trial judge his copy of the motion to read.
¶ 26 Weaver first argued that FCB "perpetrated fraud by sending a title to Kansas of a vehicle owned [by Weaver] and had a mechanic's lien in excess of $60,000 with interest, thereby costing the defendant, Dan Weaver, said amount." The court asked Weaver what this allegation had to do with the case before it. Weaver replied, "I would never have been in this financial position had FCB had left my vehicle that I owned in the state of Illinois."
¶ 27 Moving onto his second argument, Weaver stated, "I just want to protest the sale because I believe it's fraudulent, deficient." He explained that the properties had been appraised in 2004, at which time their value was "in excess of $140,000," but they were sold in 2022 for only $61,000.
¶ 28 The court asked Weaver to explain the relevance of his allegations concerning 3 Judith Drive. In response, Weaver stated that FCB's failure to provide notice concerning the full payoff due date cost him and Horst "$2,000 extra." He argued that it was relevant because this was representative of "the egregious actions of FCB Banks throughout the entirety of these foreclosures and even prior to that."
¶ 29 FCB attorney Stine argued that a foreclosure sale must be confirmed unless proper notice was not provided or the sale itself was fraudulent. See 735 ILCS 5/15-1508(b) (West 2020) (providing that the court "shall *** enter an order confirming the sale" unless it finds that (1) proper notice was not provided, (2) the terms of the sale were unconscionable, (3) the sale itself was conducted in a fraudulent manner, or (4) "justice was otherwise not done"). He further argued that Weaver had not demonstrated-or even alleged-either of these. In addressing Weaver's allegations concerning the value of the properties, Stine argued that a below-market selling price does not provide grounds for the court to refuse to confirm the sale. See Illini Federal Savings &Loan Ass'n v. Doering, 162 Ill.App.3d 768, 771 (1987). He also stated at an earlier hearing, Weaver had opined that the properties were worth only $25,000 to $30,000 in their present condition, in part because of a bad roof.
¶ 30 The trial judge explained to Weaver that the arguments he was presenting were not relevant. He then stated, "That should have been objected to at the time of the previously entered orders." In response, Weaver noted that part of his argument was that he could have presented evidence about these issues had the court granted his request for a continuance.
¶ 31 The court asked if Weaver had any additional arguments. Weaver repeated his allegations concerning the title to a vehicle that FCB "sent" to Kansas, FCB's receipt of insurance proceeds after a fire damaged a rental building Weaver owned, and the impact of these actions and the COVID-related eviction moratorium on his finances.
¶ 32 Before ruling from the bench, the judge noted that he had heard these same arguments three times. He then stated that the allegations in Weaver's motion were not "proper grounds for [the] court to deny entry of an order approving the report of sale and distribution." That same day, the court entered an order approving the report of sale and confirming the sale, an eviction order, and a personal deficiency judgment against Weaver in the amount of $61,755.
¶ 33 On June 14, 2022, Weaver filed a pleading he labeled as a petition for relief from judgment. We note that a petition for relief from judgment pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2020)) must be filed more than 30 days after the judgment at issue. However, the trial court appears to have treated the pleading as a motion to reconsider. In the pleading, Weaver essentially repeated the allegations of his May 24 motion to deny confirmation of sale. On June 17, 2022, he filed a motion to vacate the judgment. He repeated many of the allegations in his earlier motions. In addition, he alleged that the deficiency judgment was calculated using the wrong interest rate and that the amount included various unexplained charges.
¶ 34 On July 25, 2022, the court held a hearing on the motions. Weaver reiterated the arguments he made at the May 24 hearing. He also asserted that if he had time to repair one of the buildings he owned, he could sell it and use the proceeds to pay the mortgage in full. When asked the relevance of his assertions, Weaver repeated his argument that if not for the actions of FCB and the moratorium on evictions, he would not be in the difficult financial position he was in. The court informed Weaver that both of his motions were denied, and entered a written order to that effect the same day. Weaver subsequently filed a timely notice of appeal.
¶ 35 II. ANALYSIS
¶ 36 Weaver argues that the court erred in denying his request for continuance, and he appears to argue that FCB was not entitled to judgment for a host of reasons, most related to its conduct in unrelated matters. We reject these contentions.
¶ 37 Weaver's pro se brief begins with a list of 12 issues. Only one item on the list addresses a ruling by the court. Specifically, the list includes the "[f]ailure of Judge to not [sic] allow a continuance for medical procedures." Three of the issues on the list allege that the moratorium on evictions and "the decimating features of COVID" resulted in a loss of income which, in turn, "caused part of Weaver's foreclosure." One issue is FCB's alleged failure to follow an unspecified resolution of the Illinois Department of Financial and Professional Regulation (IDFPR) by not allowing Weaver to sell one of the properties to avoid foreclosure. The remaining issues simply list Weaver's grievances against FCB we have already discussed.
¶ 38 The list of issues is followed by a statement of facts. We note that the statement of facts does not include citations to the record, as required by Rule 341(h)(6). See Ill. S.Ct. R. 341(h)(6) (eff. Oct. 1, 2020). However, FCB has not asked us to strike any portions of Weaver's brief.
¶ 39 Among other things, Weaver alleges that (1) FCB sent the title of a vehicle he co-owned to Kansas, leading to a loss of over $60,000; (2) Weaver signed a contract FCB presented to him in October 2019 "under extreme duress" even though the contract was "so ridiculous that Weaver did not think he could afford the contract as written," presumably referring to the waiver of redemption rights he signed in exchange for a forbearance agreement; (3) he was "blindsided" when FCB "went after the insurance" proceeds related to a fire in a nine-unit apartment building he owned; (4) the executive order halting evictions during the COVID pandemic caused "more loss"; (5) FCB proceeded with a foreclosure on 3 Judith Drive even though the monthly payments were being made; and (6) the properties at issue were sold for one-third of their fair market value.
¶ 40 With respect to his claim that FCB violated rules of the IDFPR, Weaver alleges that the IDFPR provided guidance to financial institutions to protect consumers during the COVID pandemic, including "encouraging all banks and credit unions" to offer payment accommodations to borrowers and to waive certain fees, such as late fees. He alleges that FCB did not follow these guidelines in its dealings with him. He further alleges that FCB violated IDFPR rules by not allowing him to sell one or both of the properties at issue; however, he does not identify any particular regulation FCB violated.
¶ 41 Finally, Weaver addresses the court's ruling on his request for a continuance. He alleges that on August 25, 2021, his doctor scheduled a September 23, 2021, appointment for him for a medical procedure related to the severe back pain he suffered. He further alleges that he filed the first of three motions requesting a continuance on August 27, 2021. Weaver asserts that because the court did not rule until the trial date, he was denied the opportunity to reschedule the appointment, which he could have done had he known in advance that the court would deny his request. He alleges that the court was made aware of his upcoming medical treatment and that the court "assured" him that a motion for a continuance would be granted if filed early enough. Weaver argues that seeking medical treatment for severe pain is important enough to take precedence over a court date.
¶ 42 Aside from a statute cited in support of his argument that he owned the vehicle involved in the transfer of title dispute, Weaver does not cite any statutes, caselaw, or regulations to support his apparent claim that FCB was not entitled to judgment because its conduct and the COVID restrictions caused Weaver to lose money, nor does he set forth the reasons for his position. In addition, as noted earlier, Weaver does not even explicitly argue that the court made any mistakes other than the decision to deny his request for a continuance. As such, we find that the only issue before us is Weaver's contention that the court erred in denying that request; he has forfeited his remaining claims by failing to provide us with arguments to support them. See Ill. S.Ct. R. 341(h)(7) (eff. Oct. 1, 2020) (requiring appellants' briefs to contain argument, including the reasons for their contentions and citations to appropriate legal authority, and providing that any points that are not argued in an appellant's opening brief are forfeited); Graham v. Lakeview Pantry, 2019 IL App (1st) 182003, ¶ 26 (explaining that the appellate court "is not a repository for an appellant to foist the burden of argument and research" and that an appellant who fails to develop an argument or support it with appropriate authority thus forfeits review of that argument).
¶ 43 We will now turn our attention to Weaver's argument that the trial court erred by denying his motions for a continuance. Litigants do not have an absolute right to a continuance. Rather, the decision to grant or deny a request for a continuance is a matter within the trial court's discretion. In re Marriage of Ward, 282 Ill.App.3d 423, 430 (1996). A party requesting a continuance for medical reasons must support his request with competent medical evidence concerning the nature of his medical problems and the reasons he cannot attend the trial as scheduled. Id. at 431. Where, as here, a party requests a continuance after the case has reached the trial stage, he "must provide the court with especially grave reasons" due to the potential for inconvenience. Id. at 430-31.
¶ 44 One consideration relevant to the court's decision is whether the party requests "a definite and reasonable time for the continuance." See id. at 431 (citing Bethany Reformed Church of Lynwoodv. Hager, 68 Ill.App.3d 509, 511 (1979)). However, the most decisive factor is whether the party has exercised due diligence in attempting to bring the case to trial as scheduled. Id.; Jack v. Pugeda, 184 Ill.App.3d 66, 77 (1989). We will not reverse the trial court's decision absent a manifest abuse of discretion. Parker v. Newman, 10 Ill.App.3d 1019, 1021 (1973).
¶ 45 Here, Weaver correctly points out that he requested a continuance four weeks before trial, as the court had instructed him to do, and he argues that the need to receive treatment for severe back pain was important enough to justify a continuance. However, Weaver never requested a hearing on his motions, and he did not provide the court with the evidence necessary to determine whether a continuance was warranted. See Jack, 184 Ill.App.3d at 68 (explaining that the affidavit requirement of Rule 231 is intended to require a party seeking a continuance "to furnish the trial judge with adequate information upon which to make a reasonable decision"). Although Weaver alleged that he had an appointment with a neurosurgeon on the date of the trial, he did not provide any documentary evidence of that until after the trial. Moreover, he did not allege that it was impossible for him to schedule the appointment for another date that would not unreasonably delay his treatment. Indeed, he argues in his brief on appeal that he would have been able to reschedule the appointment had the court ruled earlier on his motions. Absent evidence to show that he could not have obtained treatment on another date without unreasonable delay, we do not believe Weaver satisfied his obligation of demonstrating due diligence in bringing the matter to trial. See Ward, 282 Ill.App.3d at 431; Jack, 184 Ill.App.3d at 77.
We note that the specific affidavit requirements of Rule 231 are applicable to continuances requested due to a party's inability to obtain necessary evidence in time for trial. See Ill. S.Ct. R. 231(a) (eff. Jan. 1, 1970). Nevertheless, it is the burden of any party requesting a continuance to provide the court with the information necessary to make a reasonable ruling. As mentioned earlier, a party alleging he cannot attend trial due to medical issues must provide qualified medical testimony in support of that allegation. Ward, 282 Ill.App.3d at 431.
¶ 46 It is also worth noting that Weaver requested a delay of at least 90 days. In support of this request, he made vague allegations about requiring "several applications" of his treatment and the need to remain immobile and not drive "for several days." He provided no medical documentation in support of these claims, and he did not explain why these allegations prevented him from participating in the trial for a full 90 days. Thus, the court had no basis to find the requested delay reasonable under the circumstances. For these reasons, and because Weaver failed to request a hearing on his motion for a continuance, we find that the trial court did not abuse its discretion in denying his request.
¶ 47 III. CONCLUSION
¶ 48 For the foregoing reasons, we affirm the judgment of the trial court.
¶ 49 Affirmed.