2014 IL 116311
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 116311)
BAC HOME LOANS SERVICING, LP, f/k/a COUNTRYWIDE HOME
LOANS SERVICING, LP, Appellee, v. KIM E. MITCHELL, Appellant.
Opinion filed March 20, 2014.
JUSTICE KILBRIDE delivered the judgment of the court, with opinion.
Chief Justice Garman and Justices Freeman, Thomas, Karmeier, Burke, and
Theis concurred in the judgment and opinion.
OPINION
¶1 In this case, we consider whether a party’s waiver of objections to the
circuit court’s personal jurisdiction applies retroactively to validate orders
entered prior to the party’s submission to the court’s jurisdiction. The appellate
court held that the waiver applied both prospectively and retroactively. For the
following reasons, we hold that a party’s waiver of personal jurisdiction is
prospective only and does not serve to validate retroactively orders entered by
the circuit court without personal jurisdiction. Accordingly, we reverse the
appellate court’s judgment and remand to the circuit court for further
proceedings.
¶2 I. BACKGROUND
¶3 Defendant, Kim E. Mitchell, executed a promissory note with Countrywide Home
Loans, Incorporated, in the amount of $75,400. The note was secured by a mortgage on
defendant’s home in Chicago. Approximately four years later, plaintiff BAC Home
Loans Servicing, LP, formerly known as Countrywide Home Loans Servicing, LP,
filed a complaint to foreclose the mortgage.
¶4 The special process server’s affidavit states defendant was served with summons
and complaint by substituted service on November 14, 2009. According to the
affidavit, a copy of the process was left at defendant’s residence with her daughter,
Michelle Foreman, who also lived at the residence.
¶5 Defendant did not answer the complaint. Plaintiff mailed defendant a notice stating
it intended to move for entry of a judgment of foreclosure and sale on June 9, 2010. On
June 3, 2010, plaintiff filed a motion for order of default, a motion for judgment of
foreclosure and sale, and a motion to appoint a selling officer. On June 9, 2010, the
circuit court of Cook County granted plaintiff’s motions, entering an order of default,
an order appointing a selling officer, and a judgment for foreclosure and sale.
¶6 A notice of sale was mailed to defendant’s address and a judicial sale was held on
September 13, 2010. On August 2, 2011, plaintiff filed a motion for an order
confirming the report of sale and distribution and for possession. Notice of the motion
was mailed to defendant. The circuit court entered an order confirming the sale on
September 14, 2011.
¶7 On October 12, 2011, defendant filed an appearance and a motion to vacate the
circuit court’s September 14, 2011, order confirming the report of sale and distribution
and for possession. Defendant asserted “to the best of her knowledge” she was never
served with summons, she did not receive notice of the motion for default judgment,
she was informed by plaintiff that a loan modification had been approved, and she did
not receive notice of the September 14, 2011, order. Defendant asked the court to
vacate the order “in the interest of justice.”
¶8 Defendant later withdrew her motion and filed a motion to quash the September 14,
2011, order or, in the alternative, a petition for relief from judgment under section
2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2010)) and section
15-1508 of the Illinois Mortgage Foreclosure Law (735 ILCS 5/15-1508 (West Supp.
2011)). Defendant essentially repeated the allegations of her previous motion to vacate.
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Defendant added that “justice was not done, and the sale of her home was fraudulent
and a due process violation.” The motion was stricken without prejudice. Defendant
refiled her motion the following day, this time attaching exhibits referenced in the
motion.
¶9 In its response to the motion, plaintiff asserted defendant was served by substituted
service on November 14, 2009. Plaintiff attached a copy of the affidavit of service. The
affidavit stated substituted service was made by:
“leaving a copy of this process at [defendant’s] usual place of abode with:
Michelle Foreman (Relationship) Daughter, a person residing therein who is of
the age of 13 years or upwards and informed that person of the contents thereof
and that further mailed a copy of this process in a sealed envelope with postage
paid addressed to the defendant at his/her usual place of abode on 11-17-09.”
¶ 10 Defendant filed a reply, asserting the substituted service was defective because she
does not have a daughter. Defendant asserted her only child is a son named William
Mitchell and she does not know anyone named Michelle Foreman. Defendant attached
an affidavit stating those facts.
¶ 11 The circuit court denied defendant’s motion to quash the order confirming the sale.
Defendant’s alternative section 2-1401 and 15-1508 petition was also denied because
she failed to provide the court with grounds to vacate the order confirming the sale.
¶ 12 On appeal, defendant contended that the substituted service of process was
defective and the circuit court, therefore, lacked personal jurisdiction to enter the
default judgment, the judgment of foreclosure, the order of sale, and the order of
possession. Plaintiff acknowledged the substituted service was improper because it was
not in compliance with section 2-203 of the Code (735 ILCS 5/2-203 (West 2008)).
Plaintiff argued, however, that defendant waived all objections to the court’s personal
jurisdiction by filing a postjudgment motion to vacate the September 14, 2011, order
confirming the sale.
¶ 13 The appellate court observed that challenges to personal jurisdiction are governed
by section 2-301 of the Code (735 ILCS 5/2-301(a), (a-5) (West 2010)) and section
15-1505.6 of the Illinois Mortgage Foreclosure Law (735 ILCS 5/15-1505.6 (West
Supp. 2011)). Defendant’s initial postjudgment motion filed on October 12, 2011,
failed to comply with the statutory requirements for challenging the circuit court’s
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personal jurisdiction because it was not a motion to dismiss for lack of jurisdiction or a
motion to quash service of process.
¶ 14 The appellate court noted that failure to comply with the statutory requirements for
challenging the court’s personal jurisdiction results in waiver of “all objections to the
court’s jurisdiction over the party’s person.” (Internal quotation marks omitted.) 2013
IL App (1st) 121713-U, ¶ 41. Based on that statutory language, the appellate court held
defendant’s waiver “worked prospectively and retroactively.” 2013 IL App (1st)
121713-U, ¶ 41. Accordingly, defendant waived any jurisdictional challenge to the
circuit court’s orders entered prior to her initial postjudgment motion in this case. The
trial court’s judgment was, therefore, affirmed. 2013 IL App (1st) 121713-U.
¶ 15 We allowed defendant’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Feb. 26,
2010).
¶ 16 II. ANALYSIS
¶ 17 To enter a valid judgment, a court must have both jurisdiction over the subject
matter and jurisdiction over the parties. In re Marriage of Verdung, 126 Ill. 2d 542, 547
(1989). A judgment entered by a court without jurisdiction over the parties is void and
may be challenged at any time, either directly or collaterally. Verdung, 126 Ill. 2d at
547. We review de novo whether the circuit court obtained personal jurisdiction. In re
Detention of Hardin, 238 Ill. 2d 33, 39 (2010).
¶ 18 Personal jurisdiction may be established either by service of process in accordance
with statutory requirements or by a party’s voluntary submission to the court’s
jurisdiction. Verdung, 126 Ill. 2d at 547. As in the appellate court, plaintiff concedes
that the substituted service of process in this case was defective and did not confer
personal jurisdiction.
¶ 19 The appellate court determined, however, that defendant voluntarily submitted to
the circuit court’s jurisdiction by filing her initial postjudgment motion to vacate the
order confirming the sale on October 12, 2011. Defendant did not challenge that
determination in her petition for leave to appeal, her opening brief, or her reply brief.
Rather, defendant’s only argument on appeal to this court has been that by filing her
October 12, 2011, motion, she submitted to the court’s jurisdiction prospectively-only.
Defendant “emphasize[d] the need for this court’s guidance and clarification” on
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whether waiver of objections to personal jurisdiction under section 2-301 is both
prospective and retroactive.
¶ 20 At oral argument, counsel for defendant argued for the first time in this court that
defendant did not submit to the circuit court’s jurisdiction by filing her October 12,
2011, motion. Counsel contended that defendant’s motion was in compliance with
section 2-301(a), requiring a party to file a “motion to dismiss the entire proceeding or
any cause of action involved in the proceeding or *** a motion to quash service of
process” to preserve objections to the court’s personal jurisdiction. 735 ILCS
5/2-301(a) (West 2010). Counsel asserted that defendant’s motion only alleged that
service of process was defective.
¶ 21 Plaintiff’s counsel responded that this issue was not raised in defendant’s petition
for leave to appeal or her briefs on appeal to this court. Plaintiff’s counsel, therefore,
argued that the issue was not properly before this court.
¶ 22 We agree with plaintiff that defendant forfeited this argument by failing to raise it
in her petition for leave to appeal, her opening brief, or her reply brief. Supreme Court
Rule 315(c)(3) states a petition for leave to appeal shall contain “a statement of the
points relied upon in asking the Supreme Court to review the judgment of the Appellate
Court.” Ill. S. Ct. R. 315(c)(3) (eff. Feb. 26, 2010). The rule further requires “a short
argument (including appropriate authorities) stating why review by the Supreme Court
is warranted and why the decision of the Appellate Court should be reversed or
modified.” Ill. S. Ct. R. 315(c)(5) (eff. Feb. 26, 2010). Defendant’s petition for leave to
appeal does not meet those requirements for raising her argument that her initial
postjudgment motion complied with section 2-301(a) of the Code. There is no mention
whatsoever of that issue in defendant’s petition for leave to appeal. Accordingly,
defendant’s argument was not properly preserved for our review. See People v.
Whitfield, 228 Ill. 2d 502, 509 (2007).
¶ 23 We further note that this court has repeatedly held an appellant’s failure to argue a
point in the opening brief results in forfeiture under Supreme Court Rule 341(h)(7). See
Vancura v. Katris, 238 Ill. 2d 352, 369-73 (2010). According to Rule 341(h)(7), points
not argued in the appellant’s brief “are waived and shall not be raised in the reply brief,
in oral argument, or on petition for rehearing.” Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6,
2013). Defendant, therefore, also forfeited her argument that her initial postjudgment
motion complied with section 2-301(a) by failing to argue it in her opening brief and
instead raising it for the first time in oral argument.
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¶ 24 Accordingly, the sole issue properly before this court is whether by filing her initial
postjudgment motion, defendant waived objections to the circuit court’s personal
jurisdiction both prospectively and retroactively. Defendant contends her
postjudgment motion resulted in waiver of objections to the court’s personal
jurisdiction prospectively-only. She maintains that her waiver of objections cannot
serve to validate retroactively previous orders entered by the circuit court without
personal jurisdiction.
¶ 25 Plaintiff responds that under section 2-301 of the Code, defendant waived “all
objections to the court’s jurisdiction over [her] person” by filing the postjudgment
motion to vacate. The statute does not contain any temporal restriction on the waiver.
Plaintiff, therefore, concludes that defendant waived all objections to the circuit court’s
personal jurisdiction, both prospectively and retroactively, by filing her postjudgment
motion to vacate the order confirming the report of sale.
¶ 26 In Verdung, this court considered whether a party’s general appearance in a case
conferred personal jurisdiction on the circuit court retroactively. This court held there
was no doubt that the circuit court had personal jurisdiction over the party as of the date
of her general appearance. This court held, however, that “a party who submits to the
court’s jurisdiction does so only prospectively and the appearance does not
retroactively validate orders entered prior to that date.” Verdung, 126 Ill. 2d at 547.
¶ 27 To support its holding, this court relied upon the appellate court’s decisions in J.C.
Penney Co. v. West, 114 Ill. App. 3d 644 (1983), and Sullivan v. Bach, 100 Ill. App. 3d
1135 (1981). In J.C. Penney, the appellate court held that a defendant’s voluntary
submission to the circuit court’s jurisdiction was prospective-only. By filing a petition
to vacate a default judgment, the defendant did not submit to the circuit court’s
jurisdiction retroactively to validate previous orders entered without personal
jurisdiction. J.C. Penney Co., 114 Ill. App. 3d at 647. Rather, “where a judgment is
void when entered, it remains void” despite subsequent submission by a party to the
circuit court’s jurisdiction. J.C. Penney Co., 114 Ill. App. 3d at 646. The appellate court
reasoned:
“ ‘Where the defendant is found to have voluntarily submitted himself to the
court’s jurisdiction prior to judgment, the court has personal jurisdiction at the
time it enters the judgment order, but the same logic serves only to submit a
defendant to the court’s jurisdiction as of the date he appeared, not retroactively
as of the date of the ex parte judgment, where his appearance comes after
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judgment is entered. [Citation.] A defendant’s attempts to set aside a void
judgment subsequent to the entry of that judgment are not to be considered as
giving the court original jurisdiction to enter the judgment; doing so deprives
the defendant of his day in court. [Citations.]’ ” (Emphasis added.) J.C. Penney
Co., 114 Ill. App. 3d at 647 (quoting Sullivan, 100 Ill. App. 3d at 1142).
¶ 28 The rule on prospective-only personal jurisdiction set forth in Verdung is,
therefore, based on the due process concept of allowing the defendant his day in court
before entering judgment against him. The fundamental requirement of due process is
the opportunity to be heard, and that right “has little reality or worth unless one is
informed that the matter is pending.” Mullane v. Central Hanover Bank & Trust Co.,
339 U.S. 306, 314 (1950); see also In re Dar. C., 2011 IL 111083, ¶ 61. The rule in
Verdung is intended to protect parties’ due process rights by preventing entry of a
judgment without prior notice and an opportunity to be heard.
¶ 29 Plaintiff contends, however, that the rule in Verdung is no longer valid because it
was established prior to the amendment of section 2-301 in 2000. Plaintiff argues that
the amendment to section 2-301 eliminated any temporal restriction on waiver and the
statute now simply provides that filing a responsive pleading or motion results in
waiver of “all objections to the court’s jurisdiction over the party’s person.” Plaintiff
contends that the amended statute contains no language restricting the waiver to any
time in the proceeding.
¶ 30 Before the amendment in 2000, section 2-301 of the Code provided for a distinction
between special and general appearances. The statute stated:
“(a) Prior to filing any other pleading or motion, a special appearance may
be made either in person or by attorney for the purpose of objecting to the
jurisdiction of the court over the person of the defendant. A special appearance
may be made as to an entire proceeding or as to any cause of action involved
therein. Every appearance, prior to judgment, not in compliance with the
foregoing is a general appearance.” 735 ILCS 5/2-301(a) (West 1998).
¶ 31 Following the amendment in 2000, section 2-301 states:
“(a) Prior to the filing of any other pleading or motion other than a motion
for an extension of time to answer or otherwise appear, a party may object to the
court’s jurisdiction over the party’s person, either on the ground that the party is
not amenable to process of a court of this State or on the ground of insufficiency
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of process or insufficiency of service of process, by filing a motion to dismiss
the entire proceeding or any cause of action involved in the proceeding or by
filing a motion to quash service of process. Such a motion may be made singly
or included with others in a combined motion, but the parts of a combined
motion must be identified in the manner described in Section 2-619.1. Unless
the facts that constitute the basis for the objection are apparent from papers
already on file in the case, the motion must be supported by an affidavit setting
forth those facts.
(a-5) If the objecting party files a responsive pleading or a motion (other
than a motion for an extension of time to answer or otherwise appear) prior to
the filing of a motion in compliance with subsection (a), that party waives all
objections to the court’s jurisdiction over the party’s person.” 735 ILCS
5/2-301(a), (a-5) (West 2010).
¶ 32 A conflict has arisen in our appellate court on the impact of the 2000 amendment to
section 2-301. Some appellate panels have continued to follow the reasoning in
Verdung, holding that a party’s voluntary submission to the circuit court’s personal
jurisdiction is prospective-only and does not retroactively validate prior orders entered
without jurisdiction. C.T.A.S.S. & U. Federal Credit Union v. Johnson, 383 Ill. App. 3d
909, 911-12 (2008); Mortgage Electronic Systems v. Gipson, 379 Ill. App. 3d 622,
629-31 (2008). Other decisions have held that a waiver of “all objections to the court’s
jurisdiction over the party’s person” must be construed as comprehensive, applying
both prospectively and retroactively. (Emphasis omitted.) GMB Financial Group, Inc.
v. Marzano, 385 Ill. App. 3d 978, 994 (2008); Eastern Savings Bank, FSB v. Flores,
2012 IL App (1st) 112979, ¶ 16.
¶ 33 When construing a statute, our primary objective is to ascertain and give effect to
the intent of the legislature. People v. Elliott, 2014 IL 115308, ¶ 11. The most reliable
indicator of legislative intent is the statutory language, given its plain and ordinary
meaning. Elliott, 2014 IL 115308, ¶ 11. In determining the statute’s plain meaning, we
consider the subject it addresses and the legislature’s purpose in enacting it. Elliott,
2014 IL 115308, ¶ 11.
¶ 34 Plaintiff emphasizes that under the amended statute, a party “waives all objections
to the court’s jurisdiction over the party’s person” by initially filing a responsive
pleading or motion. 735 ILCS 5/2-301(a-5) (West 2010). The statute plainly provides
that a party waives “all objections” to the court’s personal jurisdiction by filing a
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responsive pleading or motion before challenging the court’s jurisdiction. Under
section 2-301(a), the waiver of objections to personal jurisdiction is comprehensive
when a party submits to the court’s jurisdiction by initially filing a responsive pleading
or motion.
¶ 35 The critical issue here, though, is whether the waiver of all objections applies
retroactively to validate an order or judgment entered without personal jurisdiction.
Personal jurisdiction is established either by effective service of process or by a party’s
voluntary submission to the court’s jurisdiction. Verdung, 126 Ill. 2d at 547. The
amended statute does not specifically state the effect a party’s waiver of objections has
on orders or judgments entered by the court without personal jurisdiction. The statute
does not state that the waiver is intended to validate orders entered prior to service of
process or the party’s voluntary submission to the court’s jurisdiction.
¶ 36 Further, it is not apparent from the statutory language that the legislature intended
to abrogate this court’s established case law providing that “a party who submits to the
court’s jurisdiction does so only prospectively and the appearance does not
retroactively validate orders entered prior to that date.” Verdung, 126 Ill. 2d at 547. The
settled law prior to the amendment to section 2-301 provided that “where a judgment is
void when entered, it remains void,” despite subsequent submission by a party to the
circuit court’s jurisdiction. J.C. Penney Co., 114 Ill. App. 3d at 646.
¶ 37 In one recent case, the appellate court read section 2-301(a-5) as simply “codifying
the long-standing rule that ‘a party may waive a defect in jurisdiction over the person
by proceeding without objection.’ ” Higgins v. Richards, 401 Ill. App. 3d 1120, 1126
(2010) (quoting Mullaney, Wells & Co. v. Savage, 31 Ill. App. 3d 343, 347 (1975),
citing People v. Securities Discount Corp., 361 Ill. 551 (1935)). Under the case law
prior to the 2000 amendment, a general appearance was considered to waive all
objections to the court’s personal jurisdiction and submit the party to the court’s
jurisdiction. KSAC Corp. v. Recycle Free, Inc., 364 Ill. App. 3d 593, 594 (2006); J.C.
Penney Co., 114 Ill. App. 3d at 647. The waiver submitted the party to the court’s
jurisdiction only prospectively, however, and it did not serve to validate retroactively
prior orders entered without personal jurisdiction. Verdung, 126 Ill. 2d at 547; J.C.
Penney Co., 114 Ill. App. 3d at 647. Thus, the 2000 amendment to section 2-301 may
be construed as simply codifying the previously settled law on waiver of objections to
personal jurisdiction and not as changing the established rule that a party’s submission
to the court’s jurisdiction is prospective-only. Verdung, 126 Ill. 2d at 547.
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¶ 38 We conclude that the amended statute is ambiguous as to the effect of a party’s
waiver on prior orders entered without personal jurisdiction. The amended statute does
not indicate a clear intent for a party’s waiver of objections to confer personal
jurisdiction on the court retroactively. When a statute is ambiguous, we look to aids of
statutory construction, including legislative history and established rules of
construction. Poris v. Lake Holiday Property Owners Ass’n, 2013 IL 113907, ¶ 47.
We, therefore, turn to the legislative history to ascertain the legislature’s intent in
amending section 2-301.
¶ 39 In explaining the amendment to section 2-301, Senator Hawkinson stated:
“This bill amends the Code of Civil Procedure dealing with special
appearances. It is not an initiative of the Illinois State Bar Association but it was
suggested by the Bar Association. It’s a cleanup. It is designed to prevent an
unknowing waiver. When you file a motion in court, before you file your
special appearance, it allows you to file your special appearance and other
motions at the same time.” (Emphasis added.) 91st Ill. Gen. Assem., Senate
Proceedings, Mar. 11, 1999, at 42-43 (statements of Senator Hawkinson).
¶ 40 The remarks by Senator Hawkinson support a conclusion that the amendment was
intended to “prevent an unknowing waiver” of a party’s objections to personal
jurisdiction. Prior to the amendment, section 2-301(a) distinguished between general
and special appearances. 735 ILCS 5/2-301(a) (West 1998). The distinction between
those types of appearances created confusion and potential for inadvertent waivers of
objections to the circuit court’s personal jurisdiction. See Marzano, 385 Ill. App. 3d at
993-94. The amendment to section 2-301(a) eliminated the distinction between general
and special appearances. 735 ILCS 5/2-301(a) (West 2010).
¶ 41 Although the legislative history shows the amendment was intended to clarify the
law to prevent inadvertent waivers of objections to the court’s personal jurisdiction, it
is not entirely clear that the amendment accomplished its objective. In this case,
defendant’s initial postjudgment motion to vacate the order confirming the sale was
filed by her attorney and it alleged defective service of process. The appellate court,
nevertheless, held the motion was insufficient to preserve defendant’s objections to the
court’s personal jurisdiction under section 2-301(a). Thus, it appears that counsel
inadvertently waived defendant’s objections to personal jurisdiction. If counsel
inadvertently waived defendant’s objections, it is almost certain that pro se defendants
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will have difficulty in preserving their objections to personal jurisdiction under the
amended section 2-301(a).
¶ 42 In any case, there is no indication from the legislative history that the amendment
was intended to alter the existing law on the effect of waiver of objections to personal
jurisdiction. The amendment to section 2-301 was intended to provide additional
protection of a defendant’s right to assert an objection to the court’s personal
jurisdiction by preventing unknowing waiver. If we were to construe the amended
statute as providing for retroactive waiver validating prior orders entered without
personal jurisdiction, it would result in a harsher rule on waiver and be inconsistent
with the legislature’s objective of providing parties additional protection in this
context.
¶ 43 Based on the statutory language and legislative history, we do not believe the
legislature intended to adopt a rule allowing a defendant’s waiver to validate
retroactively orders entered without personal jurisdiction. Plaintiff’s proposed
construction of the statute is at odds with the fundamental rationale of our rule
providing for prospective-only submission to the court’s jurisdiction, namely, to avoid
“depriv[ing] the defendant of his day in court.” (Internal quotation marks omitted.) J.C.
Penney Co., 114 Ill. App. 3d at 647. In the absence of clear language or legislative
history to the contrary, we conclude section 2-301(a-5), as amended, codified the law
on waiver as it existed before the amendment. We, therefore, reaffirm the longstanding
rule that “a party who submits to the court’s jurisdiction does so only prospectively and
the appearance does not retroactively validate orders entered prior to that date.”
Verdung, 126 Ill. 2d at 547. To the extent that Illinois appellate court decisions,
including Marzano and Flores, hold to the contrary, they are overruled.
¶ 44 Here, defendant voluntarily submitted to the circuit court’s personal jurisdiction by
filing her initial postjudgment motion to vacate the order confirming the sale on
October 12, 2011. By filing her motion, defendant waived objections to the circuit
court’s personal jurisdiction prospectively-only, however. The waiver did not serve to
validate retroactively the void orders entered prior to defendant’s submission to the
court’s jurisdiction.
¶ 45 A judgment entered by a court without personal jurisdiction is void and may be
challenged at any time, either directly or collaterally. Verdung, 126 Ill. 2d at 547. The
orders entered by the circuit court without personal jurisdiction prior to defendant’s
October 12, 2011, postjudgment motion must be vacated. We, therefore, reverse the
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judgments of the appellate and circuit courts, and remand to the circuit court for further
proceedings.
¶ 46 III. CONCLUSION
¶ 47 For the foregoing reasons, the judgments of the circuit court and the appellate court
are reversed. The cause is remanded to the circuit court for further proceedings.
¶ 48 Reversed and remanded.
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BAC Home Loans Servicing, LP v. Mitchell
Combined Opinion