ILLINOIS OFFICIAL REPORTS
Appellate Court
Wells Fargo Bank, N.A. v. Zwolinski, 2013 IL App (1st) 120612
Appellate Court WELLS FARGO BANK, N.A., Successor by Merger to Wells Fargo
Caption Home Mortgage, Inc., Plaintiff-Appellee, v. ALFRED ZWOLINSKI,
Defendant-Appellant (Harris N.A., Corby S. Hagan, Beata Zwolinski,
Unknown Heirs and Legatees of Alfred Zwolinski, Defendants).
District & No. First District, First Division
Docket No. 1-12-0612
Filed May 6, 2013
Held In a mortgage foreclosure action, defendant’s appeal from the trial court’s
(Note: This syllabus denial of his motion to reconsider the denial of his motion to quash
constitutes no part of service of summons was dismissed due to his failure to serve any of the
the opinion of the court other parties with his notice of appeal pursuant to the circuit court’s rules
but has been prepared and the significant prejudice suffered by the other parties.
by the Reporter of
Decisions for the
convenience of the
reader.)
Decision Under Appeal from the Circuit Court of Cook County, No. 09-CH-50400; the
Review Hon. David B. Atkins, Judge, presiding.
Judgment Appeal dismissed.
Counsel on Stephen Richek, of Chicago, for appellant.
Appeal
Noonan & Lieberman, Ltd., of Chicago (James V. Noonan and Ruth B.
Sosniak, of counsel), for appellee.
Panel JUSTICE CUNNINGHAM delivered the judgment of the court, with
opinion.
Justices Rochford and Delort concurred in the judgment and opinion.
OPINION
¶1 This appeal arises from a January 30, 2012 order entered by the circuit court of Cook
County which denied defendant-appellant Alfred Zwolinski’s (Alfred) motion to reconsider
an order denying his motion to quash service. On appeal, Alfred argues that: (1) service of
process was invalid because plaintiff-appellee Wells Fargo Bank, N.A. (Wells Fargo),
successor by merger to Wells Fargo Home Mortgage, Inc., failed to comply with Cook
County Circuit Court Rule 7.3 (Cook Co. Cir. Ct. R. 7.3 (Oct. 1, 1996)) when it sought leave
to serve Alfred by publication; and (2) service of process was invalid because Wells Fargo
did not conduct due inquiry and diligent inquiry before filing an affidavit for service by
publication pursuant to section 2-206(a) of the Illinois Code of Civil Procedure (Code) (735
ILCS 5/2-206(a) (West 2010)). For the following reasons, we dismiss this appeal for
violation of Illinois Supreme Court Rule 303(c) (eff. May 30, 2008).
¶2 BACKGROUND
¶3 On June 1, 2003, Alfred executed a promissory note in the principal amount of $90,355
payable to Wells Fargo in return for a loan. Also, on June 1, 2003, Alfred secured the loan
by executing a mortgage on real property located at 6151 West Roscoe Street, Chicago,
Illinois (Roscoe property). Defendant Beata Zwolinski (Beata) signed the mortgage as a
“non-vested spouse.”
¶4 On December 16, 2009, Wells Fargo filed a complaint in the circuit court of Cook
County to foreclose the mortgage. The complaint alleged that Alfred defaulted on monthly
payments for the period of September 2009 to December 2009, and that the balance due as
of the time of the complaint was $35,324.16, plus interest. The following parties were joined
as defendants: Beata; Corby S. Hagan (Hagan), a judgment creditor; Harris N.A. (Harris),
a junior mortgagee; and unknown heirs and legatees of Alfred. Additionally, on December
16, 2009, the clerk of the court issued a mortgage foreclosure summons to be served on each
defendant. The mortgage foreclosure summons instructed the process server to serve Alfred
and Beata at the Roscoe property.
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¶5 Maricruz Garcia (Garcia), a special process server and employee of ProVest, LLC
(ProVest), executed an affidavit which stated that on December 19, 2009, she attempted to
serve Beata at the Roscoe property. The affidavit stated that the Roscoe property was a one-
story, single-family home that was occupied and was not for sale. Further, the affidavit stated
that Garcia allegedly spoke with a tenant of the Roscoe property who stated that Beata was
the landlord of the Roscoe property and that she lived “somewhere in Elmwood Park.”
Additionally, on December 19, 2009, Garcia executed a second affidavit which stated that
on that date, she attempted to serve Alfred at the Roscoe property. Garcia’s second affidavit
contained a description of the Roscoe property identical to the description in her first
affidavit. Further, Garcia’s second affidavit stated that the alleged tenant of the Roscoe
property stated that he “has never [heard] of [Alfred] and does not reside here.”
¶6 On December 29, 2009, Garcia successfully effectuated personal service on Beata at
2731 North 73rd Avenue, Elmwood Park, Illinois (Elmwood Park property). In January
2010, Lynda Hansell (Hansell), an employee of ProVest, executed an affidavit of due and
diligent search which stated that “[a]fter diligent search and inquiry by [Hansell], the
residence of [Alfred] is unknown to [Hansell].” Hansell’s affidavit listed Alfred’s last known
address as the Roscoe property. Further, Hansell’s affidavit stated that the following inquiries
were made in an effort to find an alternate address for Alfred: a search using his social
security number; an employment comprehensive database search; an inquiry of creditors; a
directory assistance search; a vessel search; a voter registration search; a department of state
professional licenses search; a nationwide masterfile death search; a nationwide aircraft
search; a nationwide pilot search; a department of corrections inquiry; a Freedom of
Information Act (FOIA) inquiry; a county jail inquiry; a property tax inquiry; and a federal
prison search. The only inquiries that yielded any results were the social security number
inquiry, the inquiry of creditors, and the FOIA inquiry, which all listed the Roscoe property
as Alfred’s last known address. Hansell’s affidavit stated that the Roscoe property is the only
address at which an attempt to serve Alfred was made.
¶7 On January 28, 2010, Juliet Rowland, a special process server and employee of ProVest,
filed an affidavit stating that Beata and Harris had been served. The affidavit also stated that
Alfred and Hagan had not been served. On February 4, 2010, counsel for Wells Fargo filed
an affidavit for service by publication pursuant to section 2-206(a) of the Code. The affidavit
stated that on due inquiry, Alfred, Hagan and Alfred’s unknown heirs and legatees could not
be found. The affidavit also stated that the following actions were taken to ascertain the
whereabouts of the unserved defendants: ordered and reviewed credit reports on the
defendants on or about December 8, 2009; reviewed Wells Fargo’s foreclosure information
package for possible addresses on or about December 9, 2009; reviewed the deed to the
defendants for possible additional addresses on or about December 9, 2009; reviewed public
records of the Cook County probate court for a pending probate case on or about December
15, 2009; made two attempts to serve the unserved defendants; ordered and reviewed the
property inspection report to determine occupants of the subject property on or about
December 16, 2009. Further, the affidavit stated that the last known address for the unserved
defendants was the Roscoe property.
¶8 On February 10, 17, and 24, 2010, Wells Fargo served Alfred, Hagan, and Alfred’s
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unknown heirs and legatees by publication in the Chicago Daily Law Bulletin. On August
30, 2010, the trial court entered a judgment of foreclosure and sale. The trial court found that
Alfred was indebted to Wells Fargo in the amount of $42,187.31 and ordered that the Roscoe
property be sold.
¶9 In July 2011, Alfred filed an appearance through counsel. On July 15, 2011, the Roscoe
property was sold to Marek and Jolanta Nowakowski (collectively, the Nowakowskis) for
$106,000, creating a surplus of $52,223.55. On August 31, 2011, Wells Fargo filed a motion
to approve the sale of the Roscoe property. Also, on August 31, 2011, Alfred filed a motion
to quash service. In the motion to quash service, Alfred argued that service by publication
should be quashed because Wells Fargo only made one attempt to serve him. Attached to
Alfred’s motion to quash service was an affidavit executed by Alfred which stated that upon
due inquiry, he could have been found at the Roscoe property. On September 19, 2011, Wells
Fargo filed a response to the motion to quash service. In its response to the motion to quash
service, Wells Fargo argued that service by publication was valid because it complied with
all the requirements of section 2-206(a) of the Code.
¶ 10 On October 12, 2011, the trial court denied Alfred’s motion to quash service. Also, on
October 12, 2011, the trial court entered an order approving the sale of the Roscoe property
and ordered that the Roscoe property be turned over to the Nowakowskis. The trial court also
ordered that the surplus funds be turned over to the clerk of the court. On November 7, 2011,
Alfred filed a motion to reconsider the trial court’s October 12, 2011 order which denied his
motion to quash service. In his motion to reconsider, Alfred argued that Wells Fargo did not
conduct “due diligence” in making only one attempt to serve him at the Roscoe property.
Additionally, Alfred requested an evidentiary hearing to determine if the “due diligence”
requirement was satisfied. Wells Fargo then filed a response to Alfred’s motion to
reconsider.1 In January 2012, Alfred filed a reply to Wells Fargo’s response to the motion to
reconsider. Attached to Alfred’s reply to Wells Fargo’s response to the motion to reconsider
was an affidavit executed by Alfred which stated that: he continuously lived at the Roscoe
property since 1991; since 2007 he has rented out the basement and part of the first floor of
the Roscoe property; he, and not Beata, collected rent for the Roscoe property; and since
1997, the Roscoe property has been a two-story home with a basement. Also attached was
a picture of the Roscoe property from the Cook County assessor’s website.
¶ 11 On January 30, 2012, the trial court denied Alfred’s motion to reconsider. On February
14, 2012, the trial court entered an order which directed the clerk of the court to issue
payment of the surplus funds in the amounts of $33,574.42 to Hagan, and $18,649.13 to
Harris. On February 27, 2012, Alfred filed a timely notice of appeal pursuant to Illinois
Supreme Court Rule 303 (eff. May 30, 2008).
¶ 12 ANALYSIS
¶ 13 Wells Fargo argues that Alfred’s appeal should be dismissed because he failed to comply
1
Despite careful examination of the record, we cannot determine the date on which this
motion was filed.
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with Rule 303(c). Specifically, Wells Fargo argues that although Alfred filed a notice of
appeal, he did not serve any of the parties with the notice of appeal as required by Rule
303(c). Wells Fargo states that it only became aware of the appeal when it received notice
of the filing of the record on appeal. Wells Fargo contends that even if this court finds that
it was not prejudiced by Alfred’s violation of Rule 303(c), the violation is inexcusable
because there is no indication that any of the other parties (including the new owners of the
Roscoe property, the Nowakowskis) are even aware that this case has been appealed or that
their right to the Roscoe property is in jeopardy.
¶ 14 Rule 303(c) states, in pertinent part “[t]he party filing the notice of appeal *** shall,
within 7 days, file a notice of filing with the reviewing court and serve a copy of the notice
of appeal upon every other party and upon any other person or officer entitled by law to
notice.” Ill. S. Ct. R. 303(c) (eff. May 30, 2008). If the appellant fails to serve a copy of the
notice of appeal on an opposing party, the appellate court is not deprived of jurisdiction
because the filing of the notice of appeal is the only jurisdictional step in appealing from a
decision of the circuit court. Kawa v. Harnischfeger Corp., 204 Ill. App. 3d 206, 209 (1990).
“An appeal will not be dismissed on the basis that the opposing party was not served with
a copy of the notice of appeal if there was no evidence of prejudice to the party.” Id. A party
is not prejudiced by the appellant’s failure to serve a copy of the notice of appeal on the party
if the party could file appellate briefs and argue orally. Id.; Simmons v. Chicago Housing
Authority, 267 Ill. App. 3d 545, 551 (1994). However, failure to serve a copy of the notice
of appeal on parties who may be adversely affected by the appellate court’s decision may
result in dismissal of the appeal. Leyden Fire Protection District v. Township Board of
Leyden Township, 26 Ill. App. 3d 569, 572-73 (1975).
¶ 15 We note that Alfred has forfeited any argument regarding Rule 303(c) because he did not
file a reply brief and did not respond to Wells Fargo’s argument on this issue. See
Department of Central Management Services/The Department of State Police v. Illinois
Labor Relations Board, State Panel, 2012 IL App (4th) 110356, ¶ 26. Additionally, when
asked about the violation of Rule 303(c) during oral argument, Alfred’s counsel provided no
explanation as to why none of the parties were served with a notice of appeal. Thus, we agree
with Wells Fargo that Alfred violated Rule 303(c) by failing to serve any of the parties with
the notice of appeal.
¶ 16 The trial court’s orders were in favor of the defendants Hagan and Harris, and against
Alfred. Although Alfred, Hagan and Harris were originally all listed as defendants before the
trial court, on appeal it is clear that Alfred’s interests are adverse to the interests of Hagan
and Harris. Thus, if Hagan and Harris were participating in this appeal, they would in
substance be appellees. Because Alfred failed to serve a copy of the notice of appeal on
Hagan and Harris, who would be substantive appellees, they remain officially unaware of the
appeal. Consequently, they were unable to file briefs on appeal or argue orally. In other
words, they have been deprived of the opportunity to protect their interests through
participation in this appeal. It is thus clear that Hagan and Harris were significantly
prejudiced by Alfred’s failure to serve a notice of appeal upon them.
¶ 17 Moreover, the prejudice caused by Alfred’s violation of Rule 303(c) can be readily
recognized by examining the practical consequences to the unserved parties in interest if this
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court were to reverse the judgment of the trial court. Clearly, Hagan and Harris would be put
in the very unfortunate position of having to repay the surplus funds which they were
awarded following the sale of the Roscoe property. It is pointless to speculate about the
current availability of funds disbursed well over a year ago. Furthermore, if the judgment of
the trial court were reversed and the sale of the Roscoe property unwound, the purchasers of
the Roscoe property, the Nowakowskis, would also be greatly disadvantaged. Although the
Nowakowskis are not parties of record, they are certainly parties in interest. Thus, not only
did Alfred fail to notify the parties of record, he also failed to notify all parties in interest
as best practices would dictate. Even though Wells Fargo was not prejudiced by Alfred’s
violation of Rule 303(c) because it was aware of the appeal, the other parties are in a far
more untenable position. Hagan and Harris, as well as the Nowakowskis, would be seriously
prejudiced because of a lack of opportunity to participate in the legal process and to defend
their rights. Therefore, we dismiss this appeal due to Alfred’s blatant, unexplained violation
of Rule 303(c) and the significant prejudice to the parties of record.
¶ 18 For the foregoing reasons, this appeal is dismissed.
¶ 19 Appeal dismissed.
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