2021 IL App (2d) 190984
Ill. App. Ct.2021Background
- In 2008 Marcin Malarz executed a residential mortgage; BMO Harris (successor to Harris, N.A.) held the first mortgage and filed foreclosure in February 2010. Defendant Richard McDonald was named and served but did not appear; default judgment and foreclosure entered December 6, 2011, and sale was confirmed in April 2012.
- Defendant first entered an appearance October 10, 2017, and the court allowed him 14 days to file an amended motion/petition.
- On November 15, 2017, defendant filed a section 2-1401 petition to quash service (challenging personal jurisdiction). On February 16, 2018, by agreed order the November 15 petition was withdrawn without prejudice and the case was closed.
- New counsel moved to reopen and, on August 3, 2018, filed a second amended petition to quash service and to reopen the case. Plaintiff moved to dismiss, arguing the petition was untimely under the Foreclosure Law’s 60-day rule (735 ILCS 5/15-1505.6(a)).
- The trial court granted the motion to dismiss on November 6, 2019, finding the second amended petition untimely; defendant appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the second amended section 2-1401 petition was untimely under 735 ILCS 5/15-1505.6(a) | The 60-day clock runs from defendant’s first appearance; the second amended petition was filed after 60 days and is waived | The 60-day period should not include time after the first petition was withdrawn; withdrawal tolled the clock | Petition untimely; §15-1505.6(a) starts at first appearance and the voluntary withdrawal without seeking an extension did not toll the 60 days |
| Whether Bank of New York Mellon v. Laskowski defeats Pieczonka and saves defendant’s filing | Plaintiff relied on Pieczonka to show amended filing beyond 60 days is untimely | Defendant argued Laskowski implicitly overruled Pieczonka so time while case closed should not be counted | Laskowski is distinguishable (involuntary dismissal for want of prosecution vs. voluntary withdrawal here) and did not overrule Pieczonka; Pieczonka controls |
| Whether the second amended petition relates back under section 2-616 so the 60-day limit is satisfied | Plaintiff argued defendant forfeited relation-back below and record is inadequate | Defendant asserted relation-back to his initial motion to quash filed upon first appearance | Forfeited/lack of record to review; cannot show trial court abused discretion; relation-back not accepted |
| Whether defendant could rely on the one-year refiling rule (735 ILCS 5/13-217) after voluntary dismissal | Plaintiff argued defendant did not preserve the argument and the record is ambiguous | Defendant argued he had one year to refile after voluntary dismissal | Forfeited and ambiguous record; record suggests defendant sought reinstatement (not a new action) so §13-217 does not apply |
Key Cases Cited
- Bank of New York Mellon v. Laskowski, 2018 IL 121995 (time during involuntary dismissal for want of prosecution is excluded from the §15-1505.6(a) calculation)
- Porter v. Decatur Memorial Hospital, 227 Ill. 2d 343 (relation-back question reviewed de novo)
- Foutch v. O’Bryant, 99 Ill. 2d 389 (where record is incomplete on appeal, court will presume trial court acted properly)
- Richter v. Prairie Farms Dairy, Inc., 2016 IL 119518 (distinguishing reinstatement from a "new action" under §13-217)
- Dubina v. Mesirow Realty Development, Inc., 178 Ill. 2d 496 (same—difference between reinstating and filing a new action)
- Best v. Taylor Machine Works, 179 Ill. 2d 367 (explains limitation on applying later-amended statutory text in certain contexts)
- Warren County Soil & Water Conservation District v. Walters, 2015 IL 117783 (standard of review for mixed legal/factual rulings on section 2-1401 petitions)
- City of Chicago v. City of Kankakee, 2019 IL 122878 (factors to consider when deciding whether to allow amendment)