Wells Fargo Bank, N.A. v. McCluskey

This case presents question as to whether trial court properly denied defendant-property owner’s second 2-1301(e) motion to vacate prior foreclosure default judgment under circumstances where defendant had withdrawn original 2-1301(e) motion seeking stay of Sheriff’s sale in exchange for 75-day delay of said sale in order to seek modification of defendant’s mortgage with plaintiff. Appellate Court, in reversing trial court, found that trial court was not barred from considering defendant’s second section 2-1301(e) motion (that challenged affidavit filed in support of plaintiff’s foreclosure petition on grounds that affiant had not attached note or mortgage to said affidavit and had no personal knowledge about facts of case) where prior stipulation to withdraw original section 1301(e) motion made no reference to defendant’s foregoing of any right to file second section 2-1301(e) motion.