Deutsche Bank National Trust Co. v. Nichols
997 N.E.2d 223
Ill. App. Ct.2013Background
- Deutsche Bank filed a mortgage foreclosure action against Nichols in Cook County on April 7, 2011.
- A special process server effected substitute service on Nichols at her Glenwood, Illinois address on April 25, 2011.
- Deutsche Bank moved for entry of a default judgment of foreclosure, which the trial court granted on July 20, 2011 after Nichols did not appear.
- Nichols moved November 18, 2011 for leave to file an answer and affirmative defenses; the court denied December 1, 2011 as untimely post-judgment.
- Nichols filed a petition to substitute judge for cause on December 7, 2011, scheduling a hearing for January 26, 2012.
- Deutsche Bank sought an order approving the sale; the trial court entered the sale-approval order on January 25, 2012, the day before Nichols’ petition to substitute was to be heard.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Authority to enter sale order while petition pending | DBN T asserts court retained authority; petition pending not automatic void. | Nichols contends sale order void because issued before ruling on substitution petition. | Court had authority; sale order affirmed. |
| Threshold requirements for for-cause substitution | DBN argues petition did not meet threshold prerequisites and court did not need to suspend proceedings. | Nichols contends petition met threshold and required referral or delay. | Petition was not ruled on and did not meet established threshold; issue preserved for review but denied. |
| Bias allegation and extrajudicial source | DBN contends petition failed to show bias from extrajudicial source. | Nichols argues bias evidenced by prior rulings and failure to notify, implying impropriety. | Petition failed to allege bias from an extrajudicial source; no reversible error found. |
| Effect of Wilson and related case law on for-cause petitions | DBN argues Wilson permits denial on threshold grounds without automatic referral. | Nichols asserts that Wilson requires referral and that absence of ruling voids orders. | Court followed Wilson’s interpretation; no automatic referral required absent threshold findings. |
Key Cases Cited
- Estate of Wilson, 238 Ill. 2d 519 (2010) (for-cause substitution threshold and discretion; liberal construction to promote substitution)
- Jiffy Lube International, Inc. v. Agarwal, 277 Ill. App. 3d 722 (1996) (threshold requirements for substitution; referral not automatic)
- In re Marriage of Cummins, 106 Ill. App. 3d 44 (1982) (timeliness and substitution framework context for-cause)
- In re Petition of C.M.A., 306 Ill. App. 3d 1061 (1999) (earlier proposition that post-petition orders may be void if improper denial)
- People v. Bell, 276 Ill. App. 3d 939 (1995) (criminal counterpart framework informing civil substitution)