Illinois Official Reports
Appellate Court
U.S. Bank Trust, N.A. v. Colston, 2015 IL App (5th) 140100
Appellate Court U.S. BANK TRUST, N.A., as Trustee for LSF8 Master Participation
Caption Trust, by Caliber Home Loans, Inc., Plaintiff-Appellee, v. EBBIE
COLSTON and ROBIN COLSTON, Defendants-Appellants.
District & No. Fifth District
Docket No. 5-14-0100
Rule 23 order filed June 10, 2015
Motion to publish
granted July 24, 2015
Opinion filed July 24, 2015
Decision Under Appeal from the Circuit Court of Clinton County, No. 06-CH-55; the
Review Hon. William J. Becker, Judge, presiding.
Judgment Affirmed.
Counsel on Thomas G. Maag, of Maag Law Firm, LLC, of Wood River, for
Appeal appellants.
Louis J. Manetti, Jr., of Codilis & Associates, P.C., of Burr Ridge, for
appellee.
Panel JUSTICE GOLDENHERSH delivered the judgment of the court, with
opinion.
Justices Stewart and Schwarm concurred in the judgment and opinion.
OPINION
¶1 The instant case involves a default judgment entered in favor of plaintiff, U.S. Bank Trust,
N.A., against defendants, Ebbie Colston and Robin Colston, on plaintiff’s complaint to
foreclose mortgage. The original plaintiff was Household Finance Corporation III, but after
judgment was entered, the subject loan was transferred to U.S. Bank Trust, N.A., as trustee for
LSF8 Master Participation Trust, by Caliber Home Loans, Inc. This court granted a motion to
substitute plaintiff, which was filed contemporaneously with plaintiff’s brief. Defendants
appeal from an order of the circuit court of Clinton County denying their petition to vacate
judgment under section 2-1401 of the Illinois Code of Civil Procedure (Code) (735 ILCS
5/2-1401 (West 2012)). We affirm.
¶2 BACKGROUND
¶3 Defendants obtained a loan from plaintiff on September 28, 2000, which was secured by a
mortgage. The mortgage contained a property description that did not include a house.
However, a September 17, 2000, appraisal of the property that was to be secured by the
mortgage lists the property as a “1½” story house with a “detached” garage that sits on “5
acres.” On January 29, 2006, defendants obtained a separate parcel of property near the
property they mortgaged in 2000. This parcel of land contained a house. On August 26, 2006,
the original plaintiff, Household Finance Corporation III, filed a complaint to foreclose
mortgage. The complaint listed a legal description of the property and a tax parcel number, as
well as a common description of the property, which was “10120 State Rt. 161 Bartelso, IL
62218.” On November 8, 2006, a default judgment was entered against defendants.
¶4 On August 31, 2007, defendants filed a motion to continue sale date in which they alleged
that they and their son and his fiancée lived at the property in question. On September 4, 2007,
defendants filed a suggestion of bankruptcy and argued the automatic stay prevented further
proceedings in the case. Defendants attached their notice of bankruptcy filing, which listed
their address as “10120 State Rt. 161 Bartelso, IL 62218.” On June 30, 2009, defendants filed a
petition to vacate judgment in which they claimed they were never served and lived in Florida
during the time of service. On December 21, 2009, the petition to vacate was granted.
¶5 On August 11, 2010, defendants’ bankruptcy was dismissed. Thereafter, the trial court
granted plaintiff leave to file an amended complaint to add three reformation counts. On
November 16, 2011, plaintiff filed an amended complaint to foreclose mortgage. Count II of
the complaint alleged the note and mortgage executed in September 2000 intended to secure a
single-family residence, not a vacant lot, and sought reformation of the subject mortgage to
include the parcel meant to be encumbered. Count III sought an equitable lien, and count IV
sought foreclosure of the equitable lien.
¶6 On February 2, 2012, the trial court granted plaintiff leave to file a second amended
complaint to foreclose mortgage and to correct the default date and unpaid balance due
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allegations. On February 29, 2012, plaintiff filed an affidavit of service by publication.
Publication service ran from March 7, 2012, to March 21, 2012. On June 12, 2012, plaintiff
filed a motion for service by special order of the court in which plaintiff reported it was unable
to serve defendants at the subject property, so it served defendants by publication. Defense
counsel later provided plaintiff with defendants’ purported home address, 1012 Beech Street,
Highland, Illinois. Plaintiff was also unable to locate defendants at the Highland address.
¶7 On June 12, 2012, plaintiff filed a motion with the trial court, seeking leave to serve
defendants by sending a copy of the complaint and summons via courier to defendants’
attorney’s office. On June 18, 2012, the trial court granted plaintiff leave to serve defendants
through their attorney of record at his office.
¶8 On November 20, 2012, plaintiff filed a motion seeking to reform the mortgage to include
the property acquired by defendants in 2006. On November 26, 2012, a judgment for
foreclosure and sale, default judgment, and an order reforming the subject mortgage were
entered in plaintiff’s favor. The judgment for foreclosure and sale contained the language,
“This is a final and appealable order and there is no just cause for delaying enforcement of this
judgment or appeal therefrom.” Also, on November 26, 2012, plaintiff, through its attorney,
Elaine Adams, filed an unverified affidavit with the trial court stating that defendants had been
served by certified mail on September 7, 2012, and by publication on March 7, 2012.
¶9 On December 21, 2012, defendants filed a motion to vacate in which they claimed they
were not personally served and they did not authorize their attorney to accept service on their
behalf. On January 30, 2013, plaintiff filed a response in which it argued that it utilized two
methods of service: (1) publication, after attempting to serve defendants nine times at the
subject property, and (2) via defendants’ attorney after receiving leave of the court to do so.
Plaintiff also noted it attempted to serve defendants eight times at 1012 Beech Street, the
address provided by defendants’ attorney. On February 25, 2013, defendants’ motion to vacate
was denied.
¶ 10 On April 15, 2013, the trial court continued the matter until July 29, 2013, after defendants
represented they were in an active bankruptcy. On July 29, 2013, the matter was continued
until January 27, 2014. On September 27, 2013, defendants filed the instant petition to vacate
judgment pursuant to section 2-1401 of the Code. In the petition, defendants again asserted
they were never served and also asserted the mortgage should not have been reformed.
¶ 11 On November 8, 2013, plaintiff filed a motion to dismiss defendants’ petition, arguing it
was a subsequent and repetitious postjudgment motion, defendants had, in fact, been served
via two methods, publication and alternative service through their attorney, and the
reformation challenge was without merit because defendants admitted on their bankruptcy
schedules that the subject loan encumbered real property which included a multistory brick
home and garage. On November 25, 2013, defendants filed a reply in which they claimed the
prior petition to vacate was never actually filed, so the September 2013 petition was not a
successive challenge. Defendants also argued plaintiff lacked standing to foreclose. On March
3, 2014, the trial court denied defendants’ petition. Defendants now appeal.
¶ 12 ANALYSIS
¶ 13 The issue on appeal is whether the trial court erred in denying defendants’ section 2-1401
petition to vacate judgment. We review a trial court’s ruling on a section 2-1401 proceeding
de novo. MB Financial Bank, N.A. v. Ted & Paul, LLC, 2013 IL App (1st) 122077, ¶ 12, 990
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N.E.2d 764. Defendants argue the trial court erred in denying their petition to vacate because:
(1) they were not legally served, (2) there was a scrivener’s error in the original mortgage’s
property description, and plaintiff should not be allowed to foreclose on property not listed in
the original mortgage, and (3) plaintiff lacked standing to bring this action. We are
unconvinced by defendants’ arguments.
¶ 14 I. SERVICE
¶ 15 The purpose of service is twofold: (1) it gives notice to those whose rights are about to be
affected by the plaintiff’s action; and (2) it vests jurisdiction in the court over the person whose
rights are to be affected by the litigation. Bell Federal Savings & Loan Ass’n v. Horton, 59 Ill.
App. 3d 923, 926, 376 N.E.2d 1029, 1032 (1978). A defendant is entitled to receive the best
possible notice of the pending litigation, and it is only when personal service fails that
substituted or constructive service is permitted. Horton, 59 Ill. App. 3d at 927, 376 N.E.2d at
1032.
¶ 16 Section 2-206 of the Code governs service by publication and requires a party seeking
service by publication to file an affidavit stating that the person to be served “on due inquiry
cannot be found.” 735 ILCS 5/2-206(a) (West 2010). Publication must then be made in a
newspaper published in the county in which the action is pending. 735 ILCS 5/2-206(a) (West
2010). Within 10 days of the first publication of the notice, the clerk must send a copy of the
publication by mail to each defendant whose place of residence is stated in the affidavit. 735
ILCS 5/2-206(a) (West 2010).
¶ 17 In the instant case, the process server filed an affidavit in which he asserted he used due
diligence, but was unable to personally serve the defendants at 10120 State Route 161 in
Bartelso after nine attempts as follows:
“NON-SERVICE after due search, careful inquiry and diligent attempts at the
address(es) listed above, I have been unable to effect process upon the person/entity
being served because of the following reason(s): Numerous attempts were made at this
address. Notes were left at this residence and were removed, this residence is clearly
occupied. On attempt made on 12/8/11, when I pulled into the drive of the residence the
front door was open and the living room area light was on. As I got out of my vehicle
the front door closed and the lights went off. Knocked on all doors received no answer.
The following vehicles were at the residence. Red BMW [I]llinois registration
K882361. Green [F]ord Explorer [I]llinois registration A239797, Maroon [F]ord F150
[I]llinois registration 1026771, the [F]ord [F]150 was pulling a trailer with a
motorcycle on it with [I]llinois registration AS2531, and a Red [F]ord [M]ustang with
[I]llinois registration L145670. On attempt made on 12/11/11 as I pulled into the
driveway I observed a white male in shorts, no shoes, and a tank top reaching inside the
red BMW. I waved to the white male who waved back then he turned around and
walked inside the residence and shut the door. When I knocked on the door he refused
to answer.”
The affidavit also noted that two of the cars described above were registered to defendant
Ebbie Colston.
¶ 18 Publication ran from March 7, 2012, to March 21, 2012. Defense counsel later provided
plaintiff with defendants’ purported address in Highland, Illinois. Plaintiff unsuccessfully
attempted to serve defendants at the Highland address eight times from March 16, 2012, until
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April 4, 2012, from as early as 11:17 a.m. to as late as 9:01 p.m. We agree with plaintiff that its
subsequent search for defendants at an address provided by defense counsel shows that
defendants could not have been found upon further inquiry and, thus, service by publication
was proper.
¶ 19 Defendants assert, however, that because they were unable to find any evidence in the
record of a certificate indicating that the clerk sent a copy of the publication to defendants,
plaintiff did not strictly comply with section 2-206 of the Code, and the trial court lacked
jurisdiction over defendants. We disagree.
¶ 20 First, we note that defendants failed to raise this argument below. Arguments not raised in
the trial court are generally waived on appeal. Illinois Tool Works, Inc. v. Independent
Machine Corp., 345 Ill. App. 3d 645, 652-53, 802 N.E.2d 1228, 1234 (2003). Second,
defendants waived their personal jurisdictional objections by participating in the case and
failing to file a motion to quash within 60 days.
¶ 21 On August 12, 2011, our General Assembly enacted a new law for objecting to personal
jurisdiction in the context of residential foreclosure proceedings. 735 ILCS 5/15-1505.6 (West
2012). It provides as follows:
“(a) In any residential foreclosure action, the deadline for filing a motion to dismiss
the entire proceeding or to quash service of process that objects to the court’s
jurisdiction over the person, unless extended by the court for good cause shown, is 60
days after the earlier of these events: (i) the date that the moving party filed an
appearance; or (ii) the date that the moving party participated in a hearing without
filing an appearance.
(b) In any residential foreclosure action, 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 5/15-1505.6 (West 2012).
Section 15-1505.6 applies retroactively. GreenPoint Mortgage Funding, Inc. v. Poniewozik,
2014 IL App (1st) 132864, 23 N.E.3d 525. Defendants assert that this section does not apply
and that plaintiff’s contention that it does is “farcical” and “nonsensical.” We disagree.
¶ 22 The record before us is replete with evidence that defendants knew about this case,
participated in it, and made every attempt to dodge service. For example, on August 31, 2007,
defendants filed a motion to continue sale in the first proceeding. They also filed a suggestion
of bankruptcy, asking the proceedings be stayed, and they filed a petition to vacate judgment
on June 30, 2009, which was granted. On April 15, 2013, the case was continued until July 29,
2013, after defendants represented they were again in active bankruptcy. Defendants also
challenged plaintiff’s standing below.
¶ 23 The egregious conduct on the part of defendants shows why section 15-1505.6 of the Code
was enacted. Defendants participated in the case and obtained relief from the circuit court on
December 21, 2009. Defendants were represented by an attorney in the matter and knew a
mortgage foreclosure action was pending against them again. Nevertheless, defendants sought
to challenge personal jurisdiction in their motions filed on December 21, 2012, and the instant
motion filed on September 27, 2013. We agree with plaintiff that challenges to personal
jurisdiction three years after active participation in a case are precisely the type of motion
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practice section 15-1505.6 of the Code was enacted to prevent. Accordingly, we find the trial
court did not err in finding personal jurisdiction.
¶ 24 II. REFORMATION
¶ 25 Defendants’ second argument is that the trial court improperly allowed reformation of the
subject mortgage on the grounds of mutual mistake. Defendants assert the mortgage as issued
in the year 2000 mortgaged property defendants actually owned in the year 2000, and the
property plaintiff seeks to foreclose on was not even acquired by defendants until January
2006. Defendants insist what is before this court is not a mutual mistake or a scrivener’s error,
but a unilateral mistake on plaintiff’s part. We disagree.
¶ 26 A written instrument is presumed to express the parties’ intent and will not be reformed
absent the evidence of mutual mistake or another ground for reformation. Farmer City State
Bank v. Guingrich, 139 Ill. App. 3d 416, 427, 487 N.E.2d 758, 765 (1985). The party seeking
reformation must show the written instruments to be reformed do not reflect the parties’
intended bargain because of the parties’ mutual mistake. Marengo Federal Savings & Loan
Ass’n v. First National Bank of Woodstock, 172 Ill. App. 3d 859, 863, 527 N.E.2d 121, 123
(1988). Reformation will be allowed where evidence is clear and convincing. Marengo, 172
Ill. App. 3d at 863, 527 N.E.2d at 124.
¶ 27 In the instant case, the original lender clearly botched the legal description of the property.
However, an appraisal, dated September 17, 2000, shows the property defendants intended to
purchase included a house with a detached garage on five acres. That it was defendants’ intent
to encumber five acres with a house through its original mortgage in 2000 is further
substantiated by their bankruptcy schedules in which they described the property as a
two-story brick and vinyl home on five acres. Thus, we agree with the trial court that the legal
description contained in the first mortgage was the result of the mutual mistake of the parties
and find no error in the trial court’s November 26, 2012, order reforming the subject mortgage.
¶ 28 III. STANDING
¶ 29 The final argument raised by defendants on appeal is that plaintiff lacked standing to
foreclose on the subject mortgage. We disagree.
¶ 30 Standing is an affirmative defense, and, as such, the burden is on the defendant to prove the
plaintiff does not have standing rather than the plaintiff’s burden to prove it does have
standing. Parkway Bank & Trust Co. v. Korzen, 2013 IL App (1st) 130380, ¶ 24, 2 N.E.3d
1052. A copy of the note attached to the complaint is prima facie evidence that the plaintiff
owns the note. Korzen, 2013 IL App (1st) 130380, ¶ 24, 2 N.E.3d 1052. Additionally, section
2-407 of the Code specifically provides:
“No action shall be dismissed for misjoinder of parties, or dismissed for nonjoinder of
necessary parties without first affording reasonable opportunity to add them as parties.
New parties may be added and parties misjoined may be dropped by order of the court,
at any stage of the cause, before or after judgment, as the ends of justice may require
and on terms which the court may fix.” 735 ILCS 5/2-407 (West 2012).
In the instant case, the note attached to the second amended complaint is prima facie evidence
of standing, and the record shows the proper party was later substituted.
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¶ 31 The note attached to both the first and second amended complaints contains an
endorsement from the original lender, Household Finance Corporation III, stating: “Pay to the
Order of WITHOUT RECOURSE HOUSEHOLD FINANCE CORPORATION III.” On
November 26, 2012, judgment of foreclosure and sale was entered in plaintiff’s favor. Almost
a year later, on November 19, 2013, the bankruptcy court was notified of a transfer of interest
thereby showing that Household Finance Corporation III was the appropriate plaintiff initially.
Thereafter, the subject loan was transferred to U.S. Bank Trust, N.A., and this court granted the
motion to substitute U.S. Bank Trust, N.A., as plaintiff. Accordingly, plaintiff has standing.
¶ 32 CONCLUSION
¶ 33 After careful consideration, we find defendants’ appeal meritless. While we acknowledge
the original lender could have simplified this matter by providing the proper legal description
of the property, we nevertheless believe reformation was appropriate under the circumstances
presented here. We also find that plaintiff has standing to bring this action. Finally, the record
clearly shows defendants repeatedly dodged service and continue to make every attempt to
delay resolution of this mortgage foreclosure case; however, their day of reckoning is fast
approaching.
¶ 34 For the foregoing reasons, we find the trial court did not err in denying defendants’ section
2-1401 petition to vacate judgment, and we hereby affirm the judgment of the circuit court of
Clinton County.
¶ 35 Affirmed.
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