2020 IL App (2d) 190275
Ill. App. Ct.2020Background
- Chase Bank filed a mortgage foreclosure against Allen Robinson Sr. in Du Page County in October 2006; ProVest/Andy McIntosh executed substitute service at 1656 S. Central Park Ave., Chicago (zip 60623).
- Robinson did not appear; the court entered default judgment, foreclosure, and a sheriff’s sale in 2007; title passed through purchasers and, in 2011, Monika Szczurek purchased and recorded a special warranty deed and mortgage.
- In September 2018 (≈12 years after service; ≈7 years after Szczurek’s purchase) Robinson filed a section 2-1401 petition seeking to quash service and vacate the foreclosure as void for lack of personal jurisdiction, arguing service occurred in Cook County without a court-appointed special process server (violating former section 2-202(a)).
- Third-party defendants (MERS, Ocwen, Szczurek, BONY, etc.) moved to dismiss, asserting among other defenses that bona fide purchaser protections of section 2-1401(e) bar collateral attacks when a jurisdictional defect does not affirmatively appear on the face of the record, and raising laches/adverse-possession/time-bar defenses.
- The trial court found the service return (showing only zip code 60623) did not affirmatively show service in Cook County and that resolving county would require inquiry beyond the record; it granted dismissal based on section 2-1401(e) bona fide-purchaser protections.
- Robinson appealed; the appellate court affirmed, holding the jurisdictional defect did not affirmatively appear on the face of the record and bona fide-purchaser protections applied to purchasers and mortgagees (including MERS and Ocwen).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether service was invalid / court lacked personal jurisdiction | Service return on its face did not show a jurisdictional defect; record does not show service in a county requiring court-appointed server | Service occurred in Cook County (zip 60623) without court appointment of special process server, so judgment is void | Court: Affidavit did not affirmatively show service in Cook County; jurisdictional defect not apparent on face of record, so personal-jurisdiction attack fails under 2-1401(e) |
| Whether the zip code on the affidavit makes the defect apparent from the record | Any county question requires inquiry beyond the record; cannot take judicial notice to create a facial defect | Zip code 60623 is in Cook County; judicial notice or map shows service was in Cook County, making defect facially apparent | Court: Taking judicial notice of external maps would go beyond the record; affidavit itself does not show unauthorized service, so defect is not apparent |
| Whether section 2-1401(e) bars relief to later purchasers/mortgagees | Section 2-1401(e) protects bona fide purchasers and mortgagees acquired for value before petition filing if lack of jurisdiction does not affirmatively appear on record | Section 2-1401(e) should not apply because judgment is void for lack of service | Court: 2-1401(e) applies; Szczurek (purchaser) and MERS/Ocwen (mortgagees/successors) qualify as bona fide purchasers/mortgagees and are protected |
| Whether equitable/time defenses (laches, adverse possession, statute) preclude relief | BFP protections dispositive; also laches/adverse-possession and time bars may apply to stale equitable attacks | A void judgment may be attacked at any time, so laches/statute should not bar him | Court: Did not decide all equitable defenses fully; noted laches can bar relief in appropriate cases; dismissal on 2-1401(e) ground affirmed |
Key Cases Cited
- Sarkissian v. Chicago Board of Education, 201 Ill. 2d 95 (void-judgment standard for 2-1401 petitions)
- State Bank of Lake Zurich v. Thill, 113 Ill. 2d 294 (lack of jurisdiction must affirmatively appear from the record to avoid 2-1401(e) protections)
- In re Marriage of Verdung, 126 Ill. 2d 542 (court must obtain jurisdiction over parties for valid judgment)
- Murdy v. Edgar, 103 Ill. 2d 384 (standards for judicial notice of commonly known facts)
- Life Savings & Loan Ass’n of America v. Bryant, 125 Ill. App. 3d 1012 (mortgagees treated like bona fide purchasers when supported by consideration and in good faith)