Bank of America, N.A. v. Kulesza
14 N.E.3d 684
Ill. App. Ct.2014Background
- Bank of America, N.A. filed a mortgage foreclosure suit in Oct 2009 against Marta Kulesza and Tomasz Skutnik.
- A default judgment and judgment of foreclosure and sale were entered in Aug 2010; judicial sale occurred Nov 2011; sale confirmed Apr 2012.
- BAC Home Loans Servicing, LP merged into BoA; BoA substituted as the plaintiff for the foreclosure action.
- Defendants moved to vacate under 2-1401 in Oct 2012; plaintiff moved to dismiss; trial court granted dismissal in June 2013.
- Defendants argued BAC was not a registered debt collector and thus orders were void; plaintiff argued BAC was exempt as a subsidiary of BoA under the Collection Act.
- Court affirmed the trial court’s dismissal, holding BAC was a subsidiary of BoA and therefore exempt from the Illinois Collection Agency Act.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BAC’s status as a BoA subsidiary exempts it from the Collection Act | BAC was a BoA subsidiary and thus exempt | BAC was not a first-tier subsidiary and not exempt | Yes; BAC exempt as a BoA subsidiary; orders not voided |
Key Cases Cited
- Sarkissian v. Chicago Board of Education, 201 Ill.2d 95 (2002) (voidness petitions not bound by two-year limit; need not show meritorious defense)
- Kmiecik, 2013 IL App (1st) 121700 (2013 IL App (1st) 121700) (bank subsidiaries exempt from Collection Act; judicial notice of subsidiaries allowed)
- Barnard v. Michael, 392 Ill. 130 (1945) (judicial power and void orders; lack of jurisdiction defenses)
- People v. Vincent, 226 Ill.2d 1 (2007) (de novo review for voidness-based 2-1401 petitions)