Eastern Savings Bank v. Flores
2012 IL App (1st) 112979
| Ill. App. Ct. | 2012Background
- Eastern Savings Bank filed a foreclosure complaint against Susan and Edward Flores; service by substitute on July 23, 2009 via John Flores, Edward's brother, disputed by the Floress.
- The Floress did not answer; a default judgment was entered November 12, 2009.
- On December 28, 2009 Susan sent an unsigned facsimile to the court claiming default judgment and seeking a loan modification; clerk advised not to send documents to clerk's office.
- February 2, 2010, the Floress and bank entered a forbearance agreement; Edward was not a party; terms included payments and waiver of defenses, with consent to entry of foreclosure judgment upon default.
- Susan defaulted on May 1, 2010; foreclosure sale occurred August 16, 2010.
- The circuit court denied Susan’s quash service claim based on waiver in the forbearance, and granted Edward’s quash; the court treated the matter as decided by waiver rather than an evidentiary hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether waiver of service by contract is valid under Illinois law | Waiver via forbearance valid; consent to service used. | Waiver not valid unless statute-based; contract cannot waive service. | Waiver valid; contract may waive service. |
| Whether waiver retroactively validates prior service and judgment | Waiver applies both prospectively and retroactively under amended section 2-301. | Retroactivity not permitted to validate prior orders. | Waiver retroactively validates the judgment. |
| Impact of forbearance waiver on jurisdiction over Susan Flores | Acknowledgment of service within forbearance confers jurisdiction. | Waiver cannot retroactively confer jurisdiction over prior orders. | Jurisdiction valid; default judgment upheld. |
Key Cases Cited
- State Bank of Lake Zurich v. Thill, 113 Ill. 2d 294 (1986) (waiver of service may be allowed but depends on context)
- National Equipment Rental, Ltd. v. Polyphasic Health Systems, Inc., 141 Ill. App. 3d 343 (1986) (contractual waiver of service acceptable; agreed method valid)
- Szukhent v. Universal Joint Co., 375 U.S. 311 (1964) (service by agreement recognized)
- Comprehensive Merchandising Catalogs, Inc. v. Madison Sales Corp., 521 F.2d 1210 (7th Cir. 1975) (contractual service provisions enforceable)
- GMB Financial Group, Inc. v. Marzano, 385 Ill. App. 3d 978 (2008) (waiver of objections to jurisdiction applies prospectively and retroactively)
- RBS Citizens National Ass’n v. RTG-Oak Lawn, LLC, 407 Ill. App. 3d 183 (2011) (contractual waiver of defenses upheld; strong public policy favors enforcement)
- In re Marriage of Verdung, 126 Ill. 2d 542 (1989) (consent to jurisdiction deemed prospective unless statute says otherwise)
- National Equipment Rental, Ltd. v. Szukhent, not applicable (not applicable) (cited via discussion of contract-based service)