BAC Home Loans Servicing, LP v. Mitchell
2014 IL 116311
| Ill. | 2014Background
- Mitchell executed a $75,400 promissory note secured by a mortgage on her Chicago home; BAC filed a foreclosure action about four years later.
- Substituted service on November 14, 2009 left the summons at Mitchell’s residence with her daughter; Mitchell denied having a daughter named Michelle Foreman.
- Mitchell did not answer; BAC moved for default, foreclosure, appointment of selling officer, and sale in June 2010; circuit court granted these motions and foreclosure judgment.
- Sale notice and judicial sale occurred (Sept. 13, 2010); BAC moved to confirm sale and distribution, and to possess; sale was confirmed Sept. 14, 2011.
- Mitchell filed an appearance and motions to vacate the Sept. 14, 2011 order and later to quash or obtain relief from judgment; motions were denied.
- Appellate Court held that Mitchell’s waiver of jurisdiction objections applied retroactively, validating pre-remaining orders; Supreme Court reverses and remands
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether waiver of personal-jurisdiction objections is prospective only or retroactive. | BAC argues waiver is comprehensive and retroactive under 2-301(a) and (a-5). | Mitchell contends waiver is prospective only and cannot validate void orders. | Prospective only; not retroactive. |
| Effect of amended 2-301(a-5) on waiver and retroactive validation of prior orders. | BAC treats amendment as codifying comprehensive waiver. | Mitchell argues amendment may alter waiver scope. | Amendment does not clearly provide retroactive validation; waiver remains prospective. |
| Whether Mitchell’s October 12, 2011 postjudgment motion preserved jurisdiction defenses under 2-301(a). | BAC contends filing vacate motion preserves objections. | Mitchell contends motion did not comply with 2-301(a) real-time preservation. | Motion did not retroactively validate orders; objections preserved prospectively only. |
| Are prior orders entered without personal jurisdiction void and vacatable? | Void orders may be vacated once lack of jurisdiction is shown. | Waiver cannot retroactively cure void orders. | Void orders prior to waiver must be vacated; remand for proceedings. |
Key Cases Cited
- Verdung, 126 Ill. 2d 542 (1989) (general appearance is prospective; appearance does not retroactively validate prior void judgments)
- J.C. Penney Co. v. West, 114 Ill. App. 3d 644 (1983) (voluntary submission prospective; void judgment not retroactively cured)
- Sullivan v. Bach, 100 Ill. App. 3d 1135 (1981) (earlier rule on appearances and jurisdiction pre-2000 amendments)
- Marzano, 385 Ill. App. 3d 978 (2008) (appellate decisions on waiver of jurisdiction objections pre/post amendment)
- Flores, 2012 IL App (1st) 112979 (2012) (discussion of waiver scope under 2-301(a-5))
- Higgins v. Richards, 401 Ill. App. 3d 1120 (2010) (waiver as codified concept; inadvertent waivers concern)