Bozek v. Bank of America, N.A.
191 N.E.3d 709
Ill. App. Ct.2021Background
- Josef and Eva Bozek defaulted on a 2007 mortgage; Bank of America (BoA) prosecuted a foreclosure in Cook County that culminated in summary judgment, judicial sale, and a confirmed sale in 2015-2016.
- The Bozeks filed a notice of removal to federal court in July 2015; the federal judge dismissed the removal as untimely and terminated the case but did not include an explicit remand order.
- State court judges (Loftus in foreclosure; Swanagan in eviction) proceeded; an eviction order was executed by the Cook County Sheriff on May 21, 2018 but stopped after about an hour following this court’s decision in Bozek I vacating the foreclosure and sale orders as void.
- The federal court later issued a formal remand explaining it never took jurisdiction. The Bozeks then sued BoA, judges, the sheriff, the foreclosure law firm, Judicial Sales Corp., and others for wrongful foreclosure, wrongful eviction, fraud, consumer fraud, false imprisonment, §1983, and related relief.
- The trial court dismissed the entire complaint (mix of 2-615 and 2-619 dismissals). On appeal the Bozeks pursued principally two defendants: Judge Swanagan and BoA; this court affirmed dismissal in all respects.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Judge Swanagan is liable for actions in the eviction case (judicial immunity applies) | Swanagan should have recognized the foreclosure was void per removal and either stayed/vacated the eviction or notified the sheriff; failure to communicate was nonjudicial/administrative and not immune | Swanagan acted in judicial capacity; any decision to stay/vacate or communicate is part of the judicial function and is absolutely immune; exceptions inapplicable | Dismissal affirmed: absolute judicial immunity bars suit; exceptions (nonjudicial acts or acting in complete absence of jurisdiction) do not apply |
| Whether BoA can be held for "wrongful foreclosure"/abuse of process or slander of title | BoA pursued foreclosure knowing state court lacked jurisdiction after the removal, so process was abused and title disparaged | Foreclosure was a lawful exercise of contractual/right to foreclose; allegations lack improper motive or use beyond process; no recognized wrongful-foreclosure tort | Dismissal affirmed: no wrongful-foreclosure cause; allegations insufficiently plead for abuse of process or slander of title |
| Whether Bozeks pleaded a wrongful-eviction tort and damages (versus remedies under Forcible Entry and Detainer Act) | Plaintiffs seek damages for the brief eviction (compensatory and punitive) for wrongful eviction | Forcible Entry & Detainer Act provides limited remedy (possession), not tort damages; plaintiffs failed to plead a common-law tort or seek possession; forfeited alternative theory | Dismissal affirmed: claim fails because Act does not provide tort damages and plaintiffs forfeited/failed to plead a common-law wrongful-eviction tort |
| Whether consumer-fraud and false-imprisonment claims against BoA state viable claims | BoA misrepresented jurisdictional facts and proximately caused plaintiffs' injuries; eviction constituted false imprisonment | BoA’s statements were legal positions/opinions in litigation (not actionable fraud) and the state court’s decisions— not BoA—caused the foreclosure/sale; eviction involved no restraint amounting to false imprisonment | Dismissal affirmed: consumer-fraud claim fails (legal opinion, no proximate causation); false-imprisonment fails (no unlawful restraint plead) |
Key Cases Cited
- Pierson v. Ray, 386 U.S. 547 (establishes long-standing principle of judicial immunity)
- Bradley v. Fisher, 80 U.S. 335 (historical foundation for judicial immunity doctrine)
- Mireles v. Waco, 502 U.S. 9 (judicial immunity is immunity from suit; limited exceptions)
- Stump v. Sparkman, 435 U.S. 349 (function-based test for judicial acts)
- Forrester v. White, 484 U.S. 219 (judicial act exceptions and separation of roles)
- Dawson v. Newman, 419 F.3d 656 (7th Cir.) (transmission/notification of judicial orders considered part of judicial function)
- Lowe v. Letsinger, 772 F.2d 308 (7th Cir.) (judge’s decision about notice tied to judicial discretion and immunity)
- Connick v. Suzuki Motor Co., 174 Ill. 2d 482 (elements and pleading particularity for consumer-fraud claims)
- Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d 325 (scope of circuit court subject-matter jurisdiction under Illinois Constitution)