2016 IL App (1st) 152083
FIFTH DIVISION
October 28, 2016
No. 15-2083
) Appeal from the
TCF NATIONAL BANK, ) Circuit Court of
) Cook County
Plaintiff-Appellee, )
)
v. ) No. 13 CH 27302
)
CHRISTINE RICHARDS, )
) Honorable
Defendant-Appellant. ) Darryl B. Simko and
) Anna M. Loftus,
) Judges Presiding.
JUSTICE REYES delivered the judgment of the court, with opinion.
Justice Hall concurred in the judgment and opinion.
Presiding Justice Gordon specially concurred, with opinion.
OPINION
¶1 In this mortgage foreclosure action, plaintiff, TCF National Bank, served process on
defendant, Christine Richards, by publication. When the defendant did not appear or answer, the
circuit court entered a default judgment and ordered a judicial sale of defendant’s property. The
day before the sale was to occur, defendant filed an emergency motion to stay the sale, which the
circuit court granted. One week later, defendant filed a motion to quash the service of process by
publication. The circuit court denied the motion to quash (as well as numerous other motions
filed by defendant including a motion to vacate, motions to reconsider, and a petition to vacate
pursuant to section 2-1401(f) of the Code of Civil Procedure (Code) 735 ILCS 5/2-1401(f) (West
2012)) and ultimately entered an order approving the sale. Defendant now appeals pro se arguing
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that the circuit court erred when it (1) denied her motion to quash because plaintiff did not meet
the requirements for service by publication, (2) denied her motions to reconsider the denial of her
motion to quash and motion to vacate, (3) denied her section 2-1401(f) petition, and (4) entered a
personal deficiency against her in the order approving the sale. For the reasons that follow, we
affirm.
¶2 BACKGROUND
¶3 This matter commenced as a mortgage foreclosure action pursuant to the Illinois
Mortgage Foreclosure Law (Foreclosure Law) (735 ILCS 5/15-1501 et seq. (West 2012)).
Plaintiff filed a complaint on December 10, 2013, alleging defendant was in default for failure to
make payments toward the mortgage on the property located at 543 East 92nd Street in Chicago.
The relief plaintiff requested included a judicial sale of the real estate involved and a personal
deficiency judgment against defendant as guarantor of the note. Under an order entered by the
circuit court on September 30, 2013, plaintiff was authorized to serve summons on defendants in
all mortgage foreclosure cases through Elite Process Serving & Investigations, Inc. (Elite), until
December 31, 2013.
¶4 On January 8, 2014, plaintiff filed an affidavit for service by publication pursuant to
section 2-206(a) of the Code of Civil Procedure (735 ILCS 5/2-206(a) (West 2012)). In the
affidavit, counsel for plaintiff averred that she had made “a due and diligent inquiry to find
Defendant[ ] to this action, and to ascertain [her] respective places of residence” and that “upon
due inquiry such Defendant[ ] cannot be found.” In addition to that affidavit, plaintiff filed three
additional affidavits. In the first affidavit, special process server Gary McDaniels (McDaniels) of
Elite averred that he attempted to serve defendant at the property address seven times between
December 12 and 18, 2013. The affidavit further indicated that McDaniels attempted to serve
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defendant multiple times during the day including twice around 9:30 p.m. After each attempt of
service, McDaniels averred that he made no contact with defendant and “was unable to gain
access onto the property.”
¶5 In the second affidavit, special process server Christopher Gornik (Gornik) of Elite
attested that he attempted to serve defendant at the property address seven times between
December 22 and 29, 2013. Gronik averred he was not able to gain entry to the property, but
noted that on two occasions dogs were present within the yard of the property and on one
occasion the lights inside the property were on.
¶6 The third affidavit contained the averments of Juliann Pawlowski (Pawlowski) of Elite.
Pawlowski averred that her search revealed only one known address for defendant, 543 East
92nd Street in Chicago. Pawlowski attested that on January 2, 2014, upon conducting a “skip
trace” of defendant as well as a search of multiple databases (including, but not limited to, social
security, employment, voter registration, professional licenses, the department of corrections,
and other property records), no other addresses or contact information were found for defendant.
Pawlowski further attested that she attempted to call defendant on December 31, 2013, using
three different phone numbers, but was unable to contact defendant. Pawlowski also averred that
a 1986 Toyota Tercel was registered to defendant at the property address.
¶7 On January 21, 2014, plaintiff filed a “Certificate of Publication” from the Chicago Daily
Law Bulletin, which indicated that the publication notice regarding this foreclosure matter was
published on January 6, 13, and 20, 2014.
¶8 As defendant had failed to file an appearance or answer in the matter, plaintiff moved for
a default judgment and a judgment of foreclosure and sale, which were granted on May 23, 2014,
by the circuit court. On May 29, 2014, plaintiff filed a “Notice of Entry of Default Judgment,
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Judgment of Foreclosure,” pursuant to Illinois Supreme Court Rule 113(d) (eff. May 1, 2013),
which indicated the notice of default had been mailed to defendant at the property address on
May 27, 2014.
¶9 Thereafter, notice of the judicial sale of the property was then mailed to defendant at the
property address on August 14, 2014, and indicated the sale would take place on August 26,
2014, at 10:30 a.m.
¶ 10 The day the property was set to be sold, defendant appeared in court pro se and presented
an emergency motion to stay the sale of the property. Defendant did not challenge the circuit
court’s jurisdiction in this motion. Over plaintiff’s objection, the circuit court granted
defendant’s motion and stayed the sale of the property until October 21, 2014.
¶ 11 Thereafter, defendant filed a series of motions pro se. On September 2, 2014, defendant
filed a motion to “vacate all orders and judgments and dismiss with prejudice.” In relevant part,
defendant argued that the service that was attempted on her was improper as it occurred during a
“known holiday season” when she was visiting relatives. However, defendant’s affidavit, which
was attached to her motion, only averred that service was attempted on her “during the holiday
vacation season.”
¶ 12 On September 16, 2014, the circuit court denied defendant’s motion to vacate. That same
day, defendant filed another motion to quash in which she argued that plaintiff (1) did not obtain
leave to have a special process server serve the summons and (2) did not produce any affidavits
describing the diligent efforts to inquire about her whereabouts. Defendant further argued that
she received no notices from the clerk of the circuit court of Cook County. This motion was also
supported by defendant’s own affidavit in which she attested that (1) she resided at the property
address “at all times relevant to said Complaint,” (2) she had not been concealed within the state,
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(3) her “place of residence and whereabouts may be readily ascertained by records commonly
available to detective agencies,” and (4) she “truly believe[s] that the private process servers
failed to perform a diligent inquiry as to my residence and whereabouts.”
¶ 13 Two days later, on September 18, 2014, defendant filed a motion to vacate the default
judgment in which she argued that she was never served and that plaintiff did not have a court
order which would allow it to serve defendant via a special process server.
¶ 14 The circuit court denied the motion to quash and the motion to vacate on September 30,
2014, expressly finding that defendant “has waived her objection to jurisdiction under 15-1505.6
[of the Foreclosure Law] by virtue of having presented motions to dismiss on 9/16/14 and
motions to continue sale on 8/26/14[.]” Shortly thereafter, on October 16, 2014, the circuit court
granted defendant’s motion for substitution of judge and the matter was reassigned to another
judge in the mortgage foreclosure section.
¶ 15 On October 22, 2014, the property was sold to plaintiff as the highest bidder. Thereafter,
on November 12, 2014, plaintiff filed its motion to confirm the sale, requesting that an in
personam deficiency judgment be entered against defendant in the amount of $45,752.94.
¶ 16 While plaintiff’s motion to confirm the sale was pending, on January 6, 2015, defendant
filed two motions to reconsider (1) the circuit court’s order denying her motion to vacate the
default judgment and (2) the circuit court’s denial of her motion to quash. Defendant raised the
same arguments she had in her previous motions.
¶ 17 On March 10, 2015, plaintiff filed a response to defendant’s motions to reconsider in
which it argued that the motions were untimely and that defendant failed to establish that the
circuit court had misapplied the existing law when it denied her motions.
¶ 18 In reply, defendant continued to assert that service by publication on her was improper as
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plaintiff’s affidavit of service by publication did not meet the requirements of section 2-206.
Defendant further argued that the default judgment should be vacated because plaintiff failed to
follow Rule 113(d), which requires a plaintiff to prepare a notice of default and deliver it to the
clerk of the circuit court.
¶ 19 On April 30, 2015, the circuit court denied defendant’s motions to reconsider finding
they were untimely filed and did not consist of new facts or new law. The court further found
that the motion to quash was properly denied pursuant to section 15-1505.6 of the Foreclosure
Law. Upon denying defendant’s motions, the circuit court entered a briefing schedule regarding
plaintiff’s motion to confirm the sale.
¶ 20 The record discloses that defendant did not file a response to the motion to confirm the
sale. However, on June 11, 2015, defendant did file a petition to vacate the judgment of
foreclosure and set aside the sale pursuant to section 2-1401(f) of the Code (735 ILCS 5/2-
1401(f) (West 2012)) in which she continued to assert the circuit court lacked jurisdiction over
her. Plaintiff did not file a reply. 1
¶ 21 After hearing oral arguments in the matter, on June 25, 2015, the circuit court granted the
motion to confirm the sale and denied defendant’s 2-1401(f) petition. An order approving the
sale of the property was entered by the circuit court. An in personam deficiency judgment, with
interest as provided by statute, was entered against defendant in the amount of $45,752.94. The
order further provided that the memorialization of the court’s oral pronouncements and ruling
would be issued to the parties by mail.
¶ 22 On July 20, 2015, defendant filed a notice of appeal. Thereafter, on October 2, 2015, the
1
In its memorandum opinion of October 2, 2015, the circuit court states in a footnote,
“Because the defendant did not timely file a response to the plaintiff’s motion, the plaintiff did
not file a reply. At the hearing, the plaintiff voluntarily waived its right to file a written reply and
agreed to orally address the arguments raised by the defendant in its [sic] petition.”
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circuit court issued its written order. This appeal followed.
¶ 23 ANALYSIS
¶ 24 On appeal, defendant pro se contends the circuit court erred in denying her motion to
quash service of summons by publication. Defendant presents various arguments to demonstrate
that the circuit court lacked personal jurisdiction over her and, thus, the orders and judgments of
the circuit court were void. In response, plaintiff argues the circuit court properly found
defendant waived her objection to jurisdiction pursuant to section 15-1505.6 of the Foreclosure
Law (735 ILCS 5/15-1505.6 (West 2012)) when she filed an emergency motion to stay the sale
of the property and failed to contest the court’s jurisdiction in that motion.
¶ 25 Where, as here, the circuit court’s denial of a motion to quash service is based on
documentary evidence only, our review on appeal is de novo (Aurora Loan Services, LLC v.
Kmiecik, 2013 IL App (1st) 121700, ¶ 15); thus, we need not rely on the circuit court’s reasoning
in denying the motion to quash. Indeed, we may affirm the circuit court on any basis that appears
on the record. Banco Popular North America v. Gizynski, 2015 IL App (1st) 142871, ¶ 37 (“We
may affirm on any basis appearing in the record, whether or not the trial court relied on that basis
or its reasoning was correct.”). Based on our review of the record, service by publication was
proper and, therefore, the circuit court had personal jurisdiction over defendant when it entered
orders and the judgment of foreclosure prior to her filing of the emergency motion.
¶ 26 It is well established that, “To enter a valid judgment, a court must have both jurisdiction
over the subject matter and jurisdiction over the parties.” BAC Home Loans Servicing, LP v.
Mitchell, 2014 IL 116311, ¶ 17. 2 A judgment entered without jurisdiction over the parties is void
2
We acknowledge that defendant asserts a perfunctory argument that the circuit court
lacked subject matter jurisdiction. While defendant cites numerous cases regarding subject
matter jurisdiction, she does not set forth any argument as to why the circuit court here lacked
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and may be challenged at any time. Id. “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.” Id. ¶ 18.
¶ 27 “Service of process serves the dual purposes of protecting a defendant’s right to due
process by allowing proper notification and an opportunity to be heard ***.” Bank of New York
Mellon v. Karbowski, 2014 IL App (1st) 130112, ¶ 12. “Failure to effect service as required by
law deprives a court of jurisdiction over the person and any default judgment based on defective
service is void.” Id. “Specifically, a foreclosure judgment entered without service of process is
void.” Id.
¶ 28 Section 2-206(a) of the Code (735 ILCS 5/2-206(a) (West 2012)) allows a plaintiff to
serve process on a defendant by publication in limited cases where the plaintiff has strictly
complied with the requirements for such service. Deutsche Bank National Trust Co. v. Brewer,
2012 IL App (1st) 111213, ¶ 18. The section provides, in relevant part:
“Whenever, in any action affecting property or status within the jurisdiction of the court,
including an action to obtain the specific performance, reformation, or recission of a
contract for the conveyance of land, plaintiff or his or her attorney shall file, at the office
of the clerk of the court in which the action is pending, an affidavit showing that the
defendant resides or has gone out of this State, or on due inquiry cannot be found, or is
subject matter jurisdiction, and thus we find she has forfeited this argument pursuant to Illinois
Supreme Court Rule 341(h)(7) (eff. Feb. 6, 2013). Regardless, “To invoke the circuit court’s
subject matter jurisdiction, a party need only present a justiciable matter, i.e., ‘a controversy
appropriate for review by the court, in that it is definite and concrete, as opposed to hypothetical
or moot, touching upon the legal relations of parties having adverse legal interests.’ ” LVNV
Funding, LLC v. Trice, 2015 IL 116129, ¶ 35 (quoting Belleville Toyota, Inc. v. Toyota Motor
Sales, U.S.A., Inc., 199 Ill. 2d 325, 335 (2002). The circuit court has the power to hear mortgage
foreclosure matters, which are justiciable, and therefore was vested with subject matter
jurisdiction. See 735 ILCS 5/15-1501 et seq. (West 2012).
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concealed within this State, so that process cannot be served upon him or her, and stating
the place of residence of the defendant, if known, or that upon diligent inquiry his or her
place of residence cannot be ascertained, the clerk shall cause publication to be made in
some newspaper published in the county in which the action is pending.” 735 ILCS 5/2-
206(a) (West 2012).
¶ 29 The circuit court of Cook County has also adopted a local rule that further expands on the
requirement for the affidavit, particularly in mortgage foreclosure matters:
“Pursuant to 735 ILCS 5/2-206 (a), due inquiry shall be made to find the
defendant(s) prior to service of summons by publication. In mortgage foreclosure cases,
all affidavits for service of summons by publication must be accompanied by a sworn
affidavit by the individual(s) making such ‘due inquiry’ setting forth with particularity
the action taken to demonstrate an honest and well directed effort to ascertain the
whereabouts of the defendant(s) by inquiry as full as circumstances permit prior to
placing any service of summons by publication.” Cook Co. Cir. Ct. R. 7.3 (Oct. 1, 1996).
¶ 30 “Although the Code contemplates service by publication, our court long ago recognized
that such service is ‘an extraordinary means of serving notice—one unknown at common law’
and that, from the perspective of the person to be notified, it is the ‘least satisfactory method’ of
giving notice and ‘often it is no notice at all.’ ” Karbowski, 2014 IL App (1st) 130112, ¶ 13
(quoting Public Taxi Service, Inc. v. Ayrton, 15 Ill. App. 3d 706, 713 (1973)). Therefore, a party
defending notice by publication must demonstrate strict compliance with every requirement of
the statute, including due diligence and due inquiry. BankUnited v. Velcich, 2015 IL App (1st)
132070, ¶ 30. “[T]hese statutory prerequisites are not intended as pro forma or useless phrases
requiring mere perfunctory performance but, on the contrary, require an honest and well-directed
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effort to ascertain the whereabouts of a defendant by inquiry as full as circumstances permit.”
Bank of New York v. Unknown Heirs & Legatees, 369 Ill. App. 3d 472, 476 (2006). Accordingly,
before a plaintiff can conduct service by publication, the plaintiff must present an affidavit
stating a defendant cannot be located based on a diligent inquiry in ascertaining the defendant’s
residence and a due inquiry in ascertaining the defendant’s whereabouts. Citimortgage, Inc. v.
Cotton, 2012 IL App (1st) 102438, ¶ 18.
¶ 31 A defendant may challenge the plaintiff’s affidavit by filing an affidavit setting forth that
upon due inquiry, he or she could have been found. Id. The plaintiff may respond to the
defendant’s attestation either by successfully questioning the conclusory nature of the
defendant’s challenge or by producing evidence demonstrating in fact that the plaintiff made due
inquiry to locate the defendant so that process could be served upon him. Id. “If the defendant is
able to present a significant issue with respect to the truthfulness of the affidavit filed by the
plaintiff’s agent for service by publication, then the trial court should hold an evidentiary hearing
on the issue with the burden of proof being upon the plaintiff to establish that due inquiry was
made to locate the defendant.” Id. (citing First Federal Savings & Loan Ass’n v. Brown, 74 Ill.
App. 3d 901, 907-08 (1979)).
¶ 32 Defendant first argues plaintiff’s affidavits failed to comply with section 2-206(a) of the
Code and local rule 7.3. Specifically, defendant contends plaintiff was not duly diligent as the
process servers never spoke with her neighbors to ascertain her whereabouts and that plaintiff
lacked a good faith effort as it was aware of a municipal case in which she and plaintiff were
both parties.
¶ 33 Here, plaintiff complied with the statutory and local rule requirements for service by
publication by filing affidavits which established due inquiry and due diligence in attempts to
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locate and to serve defendant. The affidavits provided that defendant could not be personally
served because her whereabouts could not be ascertained and that her last known place of
residence was 543 East 92nd Street in Chicago, the property address. Incorporated by reference
in the affidavits were three additional affidavits from employees of Elite. The affidavits of
process servers McDaniels and Gornik demonstrated that they had attempted service at the only
known address for defendant (which defendant averred was her residence at the time) a total of
14 times. For each attempted service, the process servers detailed the time of day (or night)
service was attempted and the reasons why defendant could not be served, including that they
were unable to gain access onto the property and that no one was answering the doorbell. Gornik,
who attempted to serve defendant between December 22 and 29, 2013, further remarked that at
times lights were on inside the property and dogs were in the yard. In addition, Pawlowski
averred in her affidavit that she conducted a “skip trace” on January 2, 2014, that revealed only
one known address for defendant, 543 East 92nd Street in Chicago. Pawlowski further attested
that she attempted to call defendant on December 31, 2013, using three different phone numbers,
but was unable to contact defendant. Pawlowski also averred that a 1986 Toyota Tercel was
registered to defendant at the property address. No further records were found for defendant after
Pawlowski searched multiple databases including, but not limited to social security, employment,
voter registration, professional licenses, the department of corrections, and other property
records. In our view, plaintiff’s efforts fulfilled the requirements of section 2-206(a) and local
rule 7.3. See Household Finance Corp. III v. Volpert, 227 Ill. App. 3d 453, 455 (1992).
¶ 34 Moreover, the affidavits defendant produced in support of her motions to quash failed
rebut plaintiff’s affidavits. As previously discussed, a defendant may challenge the plaintiff’s
affidavit by filing an affidavit demonstrating that upon due inquiry, he or she could have been
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found. Cotton, 2012 IL App (1st) 102438, ¶ 18. Here, defendant’s affidavits indicated that she
currently resided at the property address and that “[m]y current residence has been my usual
place of abode at all times relevant to said Complaint.” She further averred that her “place of
residence and whereabouts may be readily ascertained by records commonly available to
detective agencies.” This proposition, however, does not challenge plaintiff’s affidavits,
particularly where Pawlowski attested she conducted such a search and ascertained that the only
address associated with defendant was the property address. Accordingly, where plaintiff resided
at the time of service is not at issue, rather whether plaintiff diligently attempted to serve
defendant is the issue.
¶ 35 In this vein, defendant raises two additional issues with regards to plaintiff’s attempts at
service of process. Defendant first argues that the process servers should have spoken with her
neighbors to determine her whereabouts. We find Volpert to be instructive. In that case, the
reviewing court upheld plaintiff’s service by publication, as the record disclosed that the sheriff
attempted to serve the defendant nine times over the course of 10 days at the address where the
defendant later averred he resided. Volpert, 227 Ill. App. 3d at 455. The sheriff’s return of
service also indicated: “ ‘Lights on-car in drive-won’t answer door.’ ” Id. In addition, the
plaintiff attempted to serve the defendant at a second address and on other repeated occasions at
his admitted residence. Id. The reviewing court concluded that plaintiff’s repeated attempts of
service at the defendant’s “confirmed” residence, along with the fact that the sheriff’s and
process server’s returns indicated that someone was home but refused to come to the door,
supported its holding. Id. Besides being factually similar to the case at bar, the Volpert defendant
also argued that the plaintiff was required to speak with the defendant’s neighbors when he or
she cannot be located as a requirement of due inquiry. Id. at 456. The reviewing court disagreed
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and found the plaintiff did not need to speak with the defendant’s neighbors where the plaintiff
knew that the defendant resided at the address where service was attempted and made repeated
attempts to serve him there. Id. Here, defendant averred she resided at the property address at the
time of attempted service and plaintiff attempted to serve her there on numerous occasions when
it appeared plaintiff was at home, but was not answering. Accordingly, as in Volpert, we find as
a matter of law that plaintiff was not required to speak with defendant’s neighbors regarding her
whereabouts to fulfill the due inquiry requirement. See id.
¶ 36 Secondly, defendant asserts that plaintiff lacked a good-faith effort to personally serve
her where both she and plaintiff were named as defendants in a municipal case. The record
reflects that on July 22, 2013, plaintiff filed an appearance in a municipal matter where
defendant was also named. The record in this case, however, contains no appearance of
defendant in the municipal case and defendant did not aver that she ever appeared in the
municipal matter. See cf. Brown, 74 Ill. App. 3d at 907 (record demonstrated that the plaintiff
was aware of the defendant’s divorce action at the time it filed its affidavit for service by
publication, but failed to inquire of the defendant’s attorney of record in the divorce action
concerning the defendant’s whereabouts). Thus, while the record establishes that plaintiff was
aware of defendant’s municipal action, the record does not demonstrate that defendant’s
whereabouts could be ascertained through an inquiry into that action.
¶ 37 We find, based on the affidavits provided by plaintiff, that plaintiff undertook an “honest
and well-directed effort to ascertain the whereabouts of a defendant by inquiry as full as
circumstances permit.” See Velcich, 2015 IL App (1st) 132070, ¶¶ 30, 32 (finding that the
plaintiff’s 14 attempts at service at five different addresses established due inquiry and due
diligence despite being unable to ascertain defendant’s residence). Therefore, we conclude that
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plaintiff established that due inquiry and due diligence when it detailed the specific actions it
undertook to ascertain defendant’s location sufficient to justify service by publication in
accordance with section 2-206(a) of the Code and local rule 7.3. See 735 ILCS 5/2-206(a) (West
2012); Cook Co. Cir. Ct. R. 7.3 (Oct. 1, 1996); City of Chicago v. Leakas, 6 Ill. App. 3d 20, 27
(1972) (“The provision for ‘due inquiry’ is not intended as a pro forma or useless phrase,
requiring only perfunctory performance, but, on the contrary, requires an honest and well-
directed effort to ascertain the whereabouts of a defendant by an inquiry as full as circumstances
can permit.”). Thus, the circuit court had personal jurisdiction over defendant and had the
authority to enter the judgment of foreclosure and sale. 3
¶ 38 In addition, defendant asserts the circuit court should have conducted an evidentiary
hearing on her motion to quash. As previously discussed, however, an evidentiary hearing is
warranted only “[i]f the defendant is able to present a significant issue with respect to the
truthfulness of the affidavit filed by the plaintiff’s agent for service by publication.” Cotton, 2012
IL App (1st) 102438, ¶ 18 (citing Brown, 74 Ill. App. 3d at 907-08). Defendant here has failed to
present a significant issue with respect to the truthfulness of plaintiff’s affidavits and, thus, the
circuit court did not err in declining to conduct an evidentiary hearing.
¶ 39 Motions to Reconsider
¶ 40 Defendant next argues that the circuit court erred in denying her motions to reconsider
the denial of her motion to vacate pursuant to section 2-1301(e) of the Code (735 ILCS 5/2-
1301(e) (West 2012)) and her motion to quash. Defendant maintains that she requested the
3
Defendant further argues that service by publication was improper where plaintiff’s 2-
206(a) affidavit was authored a day after publication commenced in the Chicago Daily Law
Bulletin. She also argues that plaintiff was never granted leave to serve her by publication.
Defendant, however, cites no authority for these propositions and, thus, we find these arguments
to be forfeited. See Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013).
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circuit court review whether service of process was proper and that the court (1) “ignored the
affidavits, the evidence and violation of local court rule 7.3” and (2) did not consider that
plaintiff filed a defective notice of the motion for default and did not take into consideration that
plaintiff did not file a notice of entry of default and judgment of foreclosure pursuant to Rule
113(d).
¶ 41 The purpose of a motion to reconsider is to bring to the circuit court’s attention newly
discovered evidence, changes in the law, or errors in the court’s previous application of existing
law. Martinez v. River Park Place, LLC, 2012 IL App (1st) 111478, ¶ 23. The decision to grant
or deny a motion to reconsider lies within the sound discretion of the circuit court and will not be
disturbed absent an abuse of that discretion. 1010 Lake Shore Ass’n v. Deutsche Bank National
Trust Co., 2014 IL App (1st) 130962, ¶ 23. “A circuit court abuses its discretion when its ruling
is arbitrary, fanciful, or unreasonable, or when no reasonable person would adopt its view.” Id.
“However, where a motion to reconsider raises a question of whether the trial court erred in its
previous application of existing law, we review de novo the trial court’s determinations of legal
issues.” JP Morgan Chase Bank v. Fankhauser, 383 Ill. App. 3d 254, 259 (2008).
¶ 42 Defendant first asserts the circuit court did not consider the affidavits she presented in
support of her motion to quash. Insofar as defendant is asserting that the circuit court erred in its
application of existing law, we observe that the circuit court did not substantively examine the
motion to quash, instead it denied the motion on a procedural basis. We, however, have
considered the substantive issues as stated above as well as defendant’s affidavits and, based on
the reasons previously noted, have found that the circuit court did not err in denying the motion
to quash.
¶ 43 Defendant next contends that her motion to quash was improperly denied where the
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circuit court failed to consider that plaintiff’s notice of the motion for default was not completely
filled out. Defendant maintains the notice contained a blank space where the date the notice was
mailed should have been. She further argues the plaintiff failed to provide the clerk of the circuit
court with a notice of entry of default and judgment of foreclosure pursuant to Rule 113(d). As
defendant’s argument challenges the circuit court’s application of existing law, we review it for
an abuse of discretion. See Martinez, 2012 IL App (1st) 111478, ¶ 23.
¶ 44 While the record contains a copy of the notice of the motion for default with a blank
space where the date should have been, plaintiff attached a file-stamped copy of the notice that
was complete to its response to the motion to reconsider. The notice indicates that one of its
attorneys, “on April 1, 2014, *** caused a true and correct copy of this Notice, together with the
Motion(s) and supporting documents referenced herein, to be served upon the above-named
parties by mailing a copy thereof by first class mail and depositing the same in the U.S. Mail at
Orland Park, Illinois at 4:00 P.M., with proper postage prepaid.” Accordingly, the record
demonstrates that the notice at issue was filled out in its entirety. The record further demonstrates
that on May 29, 2015, plaintiff filed a Rule 113(d) notice of entry of default and judgment of
foreclosure with the clerk of the circuit court. Thus, defendant’s contentions on appeal are belied
by the record and cannot serve as a basis for finding the circuit court erred in denying her
motions to reconsider. We therefore conclude that the circuit court did not abuse its discretion
when it denied defendant’s motions to reconsider.
¶ 45 Petition to Vacate
¶ 46 Defendant asserts the circuit court erred in denying her June 11, 2015, petition to vacate
made pursuant to section 2-1401(f) of the Code (735 ILCS 5/2-1401(f) (West 2012)). Where, as
in this case, the circuit court either enters judgment on the pleadings or dismisses the section 2-
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1401 petition, our review is de novo. OneWest Bank, FSB v. Hawthorne, 2013 IL App (5th)
110475, ¶ 19. In this case, the relief defendant sought under section 2-1401(f) was not available
to her, as there had yet to be a final and appealable order entered in the matter. See 735 ILCS
5/2-1401(a) (West 2012) (“Relief from final orders and judgments, after 30 days from the entry
thereof, may be had upon petition as provided in this Section.”). As stated by our supreme court
in EMC Mortgage Corp. v. Kemp, 2012 IL 113419, ¶ 11:
“It is well settled that a judgment ordering the foreclosure of mortgage is not final
and appealable until the trial court enters an order approving the sale and directing the
distribution. [Citations.] The reason such a judgment is not final and appealable is
because it does not dispose of all issues between the parties and it does not terminate the
litigation. [Citations.] Specifically, although a judgment of foreclosure is final as to the
matters it adjudicates, a judgment foreclosing a mortgage, or a lien, determines fewer
than all the rights and liabilities in issue because the trial court has still to enter a
subsequent order approving the foreclosure sale and directing distribution. [Citations.]
Accordingly, it is the order confirming the sale, rather than the judgment of foreclosure,
that operates as the final and appealable order in a foreclosure case. [Citation.]”
Defendant here filed her section 2-1401(f) petition on June 11, 2015, prior to the order
confirming the sale being entered on June 25, 2015. Accordingly, defendant’s motion under
section 2-1401 was premature and the circuit court did not err in denying the motion. See
id. ¶ 10.
¶ 47 Order Approving the Sale
¶ 48 Lastly, defendant contends that the circuit court erred in entering a personal deficiency
judgment against her. We review the circuit court’s approval of a judicial sale for an abuse of
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discretion. Household Bank, FSB v. Lewis, 229 Ill. 2d 173, 178 (2008). “The circuit court abuses
its discretion if it committed an error of law or where no reasonable person would take the view
adopted by the court.” US Bank, National Ass’n v. Avdic, 2014 IL App (1st) 121759, ¶ 18. The
party opposing the foreclosure sale bears the burden of proving that sufficient grounds exist to
disapprove the sale. Bayview Loan Servicing, LLC v. 2010 Real Estate Foreclosure, LLC, 2013
IL App (1st) 120711, ¶ 32.
¶ 49 Section 15-1508(e) of the Foreclosure Law (735 ILCS 5/15-1508(e) (West 2012)) sets
forth the requirements for a personal deficiency judgment:
“(e) Deficiency Judgment. In any order confirming a sale pursuant to the
judgment of foreclosure, the court shall also enter a personal judgment for deficiency
against any party (i) if otherwise authorized and (ii) to the extent requested in the
complaint and proven upon presentation of the report of sale in accordance with Section
15-1508. Except as otherwise provided in this Article, a judgment may be entered for
any balance of money that may be found due to the plaintiff, over and above the proceeds
of the sale or sales, and enforcement may be had for the collection of such balance, the
same as when the judgment is solely for the payment of money. Such judgment may be
entered, or enforcement had, only in cases where personal service has been had upon the
persons personally liable for the mortgage indebtedness, unless they have entered their
appearance in the foreclosure action.” (Emphases added.)
¶ 50 In this case, plaintiff requested a personal judgment for deficiency against defendant in its
complaint. Judgment in this matter was entered in the amount of $79,432.78. After interest,
attorneys fees, publication and other fees, the total due and owing to plaintiff was $84,142.94.
The property was sold to plaintiff as the highest bidder for $38,390.00. In its motion to confirm
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the sale, plaintiff requested the court enter a personal deficiency judgment against defendant in
the amount of $45,752.94. Plaintiff supported the sale price by attaching to its motion two
appraisals of the property. The first was dated December 22, 2006, prior to the origination of the
loan, which indicated the property was worth $170,000. The second was dated July 28, 2014,
prior to the judicial sale of the property, which indicated the property was worth $20,000.
Regarding defendant’s appearance in this matter, the record is devoid of such an appearance.
Defendant, however, acknowledged in reply to her motion for reconsideration that she filed her
appearance on August 26, 2014. Such a statement constitutes a judicial admission. See North
Shore Community Bank & Trust Co. v. Sheffield Wellington LLC, 2014 IL App (1st) 123784,
¶ 102 (judicial admissions are “ ‘formal concessions in the pleadings in the case or stipulations
by a party or its counsel that have the [function] of withdrawing a fact from issue and dispensing
wholly with the need for proof of the fact.’ ” (Internal quotation marks omitted.) (quoting
Knauerhaze v. Nelson, 361 Ill. App. 3d 538, 557-58 (2005)). Moreover, a review of the
electronic docket of the circuit court of Cook County reveals that defendant filed her appearance
on August 26, 2014. See In re F.P., 2014 IL App (4th) 140360, ¶ 39 (court can take judicial
notice of online official records). Although defendant asserts she merely filed a “special
appearance,” we observe that section 2-301 of the Code was amended in 2000 to no longer
require that a party file a special appearance to preserve a jurisdictional objection. See
GreenPoint Mortgage Funding, Inc. v. Poniewozik, 2014 IL App (1st) 132864, ¶ 13. While we
acknowledge that defendant continually insisted that personal jurisdiction was lacking, as we
have already concluded that service by publication was proper in this case, we cannot say that
the circuit court abused its discretion when it entered a personal deficiency judgment against
defendant.
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¶ 51 CONCLUSION
¶ 52 In sum, service by publication of defendant was properly had where the affidavits
presented by plaintiff strictly complied with section 2-206(a) of the Code and local rule 7.3. As
service by publication was proper, the circuit court did not err in denying the motions to
reconsider. In addition, the denial of defendant’s section 2-1401(f) petition was proper where it
was presented prior to the entry of the order approving the sale of the property. Lastly, we find
the circuit court did not abuse its discretion when it entered a personal deficiency judgment
against defendant as plaintiff complied with section 15-1508(e) of the Foreclosure Law.
Accordingly, we affirm the judgment of the circuit court of Cook County.
¶ 53 Affirmed.
¶ 54 PRESIDING JUSTICE GORDON, specially concurring.
I agree with the decision of the majority in the order but I must write separately on two issues.
First, defendant contends that plaintiff attempted service through a special process server without
leave of court, and in defendant’s section 2-1401 petition, she states the order was not stamped.
The record illustrates the granting and stamping of an order of appointment dated September 30,
2013, with the court stamp affixed thereon. Second, the majority finds that defendant’s motion
under section 2-1401 was premature because it was not a final order and thus the circuit court did
not err in denying the motion. However, even if the pro se motion to vacate was treated as a
section 2-1301 motion to vacate on its merits as not a final order, the defendant had no legal
basis to show she was entitled to any relief. The service by publication was proper based on the
affidavits of the special process servers, defendant failed to make the payments on her mortgage,
and plaintiff followed the statute in foreclosing on the property. This pro se defendant had no
defense to the foreclosure action.
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TCF National Bank v. Richards
Court: Appellate Court of Illinois
Date filed: 2016-11-30
Citations: 2016 IL App (1st) 152083
Copy CitationsCombined Opinion