Aurora Loan Services, LLC v. Kmiecik
992 N.E.2d 125
Ill. App. Ct.2013Background
- Aurora filed a mortgage foreclosure complaint against Kmiecik and Elzbieta Kmiecik in January 2010 under the Foreclosure Law.
- Defendant answered late; the trial court entered a default judgment of foreclosure in October 2010.
- A judicial sale occurred June 9, 2011, with Aurora as the highest bidder; sale-related orders followed in July 2011.
- Defendant later moved to quash service and to vacate orders under 2-1301; the trial court denied the motions.
- An affidavit of service stated the person served was 26–30 years old, while defendant was 61, prompting the motion to quash.
- Aurora argued it was exempt from the Collection Agency Act as a subsidiary of a federal savings bank; the court took judicial notice of documents supporting subsidiary status.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did defendant waive personal jurisdiction challenge by filing an answer? | Aurora asserts waiver via defendant's answer accepting jurisdiction. | Kmiecik contends waiver should not apply to defeat service challenge. | Defendant waived objections by filing an answer. |
| Was service of process improper based on the server’s age finding? | Aurora contends any discrepancy was cured by waiver and documentary proofs. | Kmiecik argues service was invalid due to age discrepancy on the affidavit. | Waiver of personal jurisdiction controls; defect does not void judgments. |
| Whether Aurora is a collection agency under the Act, making the judgments void for lack of registration? | Kmiecik argues Aurora is a collection agency and not registered, rendering judgments void. | Aurora claims exemption as a subsidiary of a federally chartered bank or preemption by federal law. | Aurora is exempt as a bank subsidiary; the judgments are not void for lack of registration. |
Key Cases Cited
- Deutsche Bank National Trust Co. v. Hall-Pilate, 2011 IL App (1st) 102632 (2011) (waiver of jurisdiction upon filing an answer; authority on 2-301(a-5) waivers)
- Deutsche Bank National v. Burtley, 371 Ill. App. 3d 1 (2006) (abuse-of-discretion review standard for 2-1301 motions)
- LVNV Funding, LLC v. Trice, 2011 IL App (1st) 092773 (2011) (unregistered collection agency nullity; debt-collection statute)
- Lusk v. Bluhm, 321 Ill. App. 349 (1944) (default judgment entry timing; distinguish cases on waiver)
- People ex rel. Daley v. Datacom Systems Corp., 146 Ill. 2d 1 (1991) (FDCPA-equivalent analyses; debt-collection scope and exemptions)