BAC Home Loans Servicing, LP v. Pieczonka
26 N.E.3d 457
Ill. App. Ct.2015Background
- BAC Home Loans Servicing filed a foreclosure complaint on Sept. 22, 2010, against Jacek (aka Jacob) Pieczonka for property at 3631 W. 65th St., Chicago.
- Process server Gary Somerville filed an affidavit stating substitute service on Sept. 24, 2010: he left the summons and complaint at the defendant’s usual abode with “co-resident Jacob Pieczonka,” age over 13, who spoke limited English.
- Defendant did not respond; default and a foreclosure judgment were entered Oct. 16, 2012; sale confirmed Sept. 13, 2013.
- Defendant filed an appearance Jan. 30, 2013, then a motion to quash service Feb. 6, 2013 (attached affidavit claiming he lived elsewhere and was not served). He later withdrew that motion April 11, 2013, and filed an amended motion to quash April 22, 2013.
- The trial court denied the April 22 motion; the appellate court reviewed de novo and affirmed, holding the April 22 motion untimely under 735 ILCS 5/15-1505.6(a).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether substitute service complied with 735 ILCS 5/2-203(a)(2) | Service affidavit satisfied statutory requirements for substituted service | Affidavit did not show service on a family member/co-resident; attached affidavit/lease created factual dispute about residency | Court did not reach merits because motion was untimely under §15-1505.6(a); motion dismissed |
| Whether defendant’s motion to quash was timely under §15-1505.6(a) | Motion was untimely; 60-day deadline ran from appearance(s) and was not extended | Earlier (Feb. 6) motion was timely because it was within 7 days of initial appearance; thus tolled deadline | Motion was untimely: defendant filed appearance Jan. 30, 2013 and second motion Apr. 22, 2013 (82 days); even using Feb. 20 additional appearance, 61 days elapsed—beyond 60-day limit; no extension granted; dismissal affirmed |
Key Cases Cited
- State Bank of Lake Zurich v. Thill, 113 Ill.2d 294 (1986) (substituted service affidavit must show strict statutory compliance)
- Poris v. Lake Holiday Property Owners Ass’n, 2013 IL 113907 (2013) (statutory interpretation: apply plain language where statute is clear)