Greenpoint Mortgage Funding, Inc. v. Poniewozik
2014 IL App (1st) 132864
Ill. App. Ct.2015Background
- GreenPoint filed a mortgage foreclosure complaint on Dec. 1, 2008, against Mariusz Poniewozik for a residential unit at 1 S. Leavitt, Chicago. Multiple attempts at personal service were made and GreenPoint later obtained service by publication in January 2009.
- An attorney entered an appearance for Poniewozik on Sept. 3, 2009; the court granted a 28‑day extension to answer and left appearance instanter.
- The court entered an order of default and a judgment of foreclosure and sale on Dec. 24, 2009; sale was held May 2010 and sale confirmed July 14, 2010.
- Nearly two years later, on June 11, 2012, Poniewozik filed a 2‑1401 petition titled “Motion to Quash Service,” alleging improper service and that he lived at the Leavitt address and was not personally served.
- GreenPoint moved to dismiss, arguing Poniewozik’s challenge was barred by section 15‑1505.6 of the Illinois Mortgage Foreclosure Law (effective Aug. 12, 2011), which requires motions to quash in residential foreclosures within 60 days of appearance or participating in a hearing (absent good cause).
- The trial court dismissed Poniewozik’s petition with prejudice; the appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether section 15‑1505.6 applies retroactively to bar a post‑judgment 2‑1401 motion to quash service | 15‑1505.6 is procedural and may be applied retroactively; Poniewozik had notice and counsel and did not timely move within 60 days after the statute took effect | Statute is not retroactive; applying it retroactively results in inadvertent waiver and conflicts with Code §2‑301 amendments protecting jurisdictional objections when only an appearance is filed | The statute is procedural and may be applied retroactively; Poniewozik was not deprived of a vested right and did not show good cause for delay, so the petition was time‑barred |
Key Cases Cited
- Allegis Realty Investors v. Novak, 223 Ill. 2d 318 (statutory interpretation reviewed de novo; distinction between procedural and substantive changes)
- Ogdon v. Gianakos, 415 Ill. 591 (procedure vs. substantive rights; no vested right in particular remedies)
- Ores v. Kennedy, 218 Ill. App. 3d 866 (procedural amendments regulate methods of enforcing rights)
- In re Marriage of Duggan, 376 Ill. App. 3d 725 (analysis for retroactivity: legislative intent then procedural/substantive inquiry)
- Schweickert v. AG Services of America, Inc., 355 Ill. App. 3d 439 (procedural statutes not applied retroactively when they impair vested rights or create retroactive impacts)
- Board of Managers of Dominion Plaza One Condominium Ass’n No. 1‑A v. Chase Manhattan Bank, N.A., 116 Ill. App. 3d 690 (definition of vested rights in context of procedural changes)
- BAC Home Loans Servicing, LP v. Mitchell, 2014 IL 116311 (distinguishing waiver/retroactivity issues; held not controlling for statutory retroactivity question)