2020 IL App (2d) 190522
Ill. App. Ct.2020Background
- BankUnited filed a mortgage foreclosure against Scott D. Giusti in July 2010; a summons was issued on a Du Page County form and substitute service was made on Giusti’s son in Schaumburg.
- The trial court entered a default judgment of foreclosure (Nov. 23, 2010); BankUnited purchased at sheriff’s sale, obtained deed, and later sold the property to Raavi, Inc.; Raavi’s deed was recorded in 2011.
- More than seven years after Raavi’s purchase, Giusti filed a section 2‑1401 petition (Sept. 2018) seeking to vacate the foreclosure as void for lack of personal jurisdiction, arguing the summons was facially defective and that service occurred in Cook County by an unappointed special process server.
- Raavi (and mortgagee West Town) moved to dismiss under section 2‑619, arguing bona‑fide purchaser protections of section 2‑1401(e), the summons was sufficient, laches and statutory/time‑bar defenses applied, and the requested remedies were improper.
- The trial court dismissed Giusti’s petition, finding no jurisdictional defect apparent on the face of the record and that Raavi and West Town were protected as bona fide purchasers; Giusti appealed.
- The appellate court affirmed: summons defects, if any, were technical and not facially jurisdictional; county of service could not be determined from the record; section 2‑1401(e) protected Raavi and West Town; laches and other equitable/time defenses were relevant to deny relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of the summons (Rule 101 / §2‑201) | Summons substantially followed the required form and adequately notified Giusti | Summons failed to identify "Defendant" and was not "directed to anyone," so it was facially invalid | Summons defects were technical; it adequately notified Giusti; no facial jurisdictional defect |
| Validity of service location / need for court‑appointed special process server (§2‑202) | Affidavit does not establish service in Cook County; Schaumburg spans Du Page and Cook; county cannot be determined from record | Affidavit lists ZIP 60173 (Cook County), so service required a court‑appointed server and was invalid | County of service not determinable from face of record; outside materials needed; no facial defect shown |
| Applicability of §2‑1401(e) bona‑fide purchaser protections | Raavi (and West Town as mortgagee) acquired title for value before petition and are protected unless jurisdictional defect appears on face of record | Protections inapplicable if judgment is void and defect is apparent on record | §2‑1401(e) applies; Raavi and West Town are protected and petition against them properly dismissed |
| Equitable/time defenses and relief sought (laches, §13‑109, restitution/possession) | Laches, limitations, and statutory bars (and improper remedies) defeat the petition; restitution/possession relief unavailable | A void judgment may be attacked anytime; equitable defenses shouldn’t block relief from voidness | Appellate court did not fully decide laches’ merits here but agreed laches and prejudice can bar relief; requested possessory/restitution relief was not warranted |
Key Cases Cited
- Sarkissian v. Chicago Bd. of Educ., 201 Ill. 2d 95 (void‑judgment/§2‑1401 procedure)
- State Bank of Lake Zurich v. Thill, 113 Ill. 2d 294 (look to whole record; lack of jurisdiction must appear on the face)
- In re Marriage of Verdung, 126 Ill. 2d 542 (court must have personal jurisdiction over parties)
- Ohio Millers Mut. Ins. Co. v. Inter‑Ins. Exch., 367 Ill. 44 (summons that fails to name person is no summons)
- Arch Bay Holdings, LLC‑Series 2010B v. Perez, 2015 IL App (2d) 141117 (summons naming defect can invalidate service)
- U.S. Bank Nat’l Ass’n v. Rahman, 2016 IL App (2d) 150040 (addresses county boundary/service issues and §2‑1401(e) analysis)
- West Suburban Bank v. Advantage Fin. Partners, LLC, 2014 IL App (2d) 131146 (laches can bar equitable relief in foreclosure context)