MB Financial Bank, N.A. v. Ted & Paul, LLC
2013 IL App (1st) 122077
| Ill. App. Ct. | 2013Background
- Plaintiff MB Financial Bank obtained a default judgment of foreclosure after service and sale of the property, later sold to Ballina Development, Inc.
- Defendants filed a section 2-1401 petition asserting lack of personal jurisdiction due to improper service and defective process.
- The trial court denied relief, ruling the petitions were barred by section 2-1401(e) and (c) and based on briefs alone.
- Plaintiff offered documents showing a bona fide purchaser and attempted to rely on 2-1401(e) and 2-1401(c) to defeat relief.
- The court remanded for an evidentiary hearing on service issues, particularly agency in corporate service on Ted & Paul, LLC.
- On appeal, court applied a de novo standard, aligning with Brewer and Sarkissian lineage, to assess service and jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether denial of 2-1401 petition was proper given service and jurisdiction | Plaintiff asserts valid service conferred jurisdiction; protection to bona fide purchaser applies. | Defendants contend service was defective, depriving court of jurisdiction and voiding judgment. | Remand for evidentiary hearing on agency; jurisdiction unresolved as to Ted & Paul, LLC. |
| Whether Lela was properly served by personal service | Return of summons shows personal service on Lela; presumption of validity applies. | Defendant challenges accuracy of service and asserts lack of proper identity of recipient. | Proper service; forfeiture of challenge; judgment valid as to Lela. |
| Whether Berce was properly served by abode service on Mariana | Abode service complied with statutory requirements; proper return supports jurisdiction. | Affidavits challenge whether Mariana was Berce's agent; lack of credible counteraffidavit. | Proper abode service; jurisdiction over Berce established; judgment valid as to Berce. |
| Whether Ted & Paul, LLC was properly served via corporate service | Return of service on Mariana as agent supports corporate service; prima facie valid. | Agency of Mariana disputed; lack of authority to accept service on corporation; service questionable. | Question of agency creates fact issue; remand for evidentiary hearing on Mariana's authority. |
Key Cases Cited
- Deutsche Bank Nat'l Tr. Co. v. Brewer, 2012 IL App (1st) 111213 (1st Dist. 2012) (void ab initio when lack of jurisdiction; service validity scrutinized)
- Sarkissian v. Chicago Bd. of Educ., 201 Ill. 2d 95 (Ill. 2002) (void judgment may be attacked under 2-1401 for invalid service)
- Topor v. OneWest Bank, FSB, 2013 IL App (1st) 120010 (1st Dist. 2013) (untimely postjudgment motion treated as 2-1401 petition; service issues central)
- Winning Moves, Inc. v. Hi! Baby, Inc., 238 Ill. App. 3d 834 (Ill. App. 1992) (return of summons prima facie proof of service; presumption favoring return)
- Freund Equipment, Inc. v. Fox, 301 Ill. App. 3d 163 (Ill. App. 1998) (corroboration required to overcome presumption of service)
- Malkin v. Malkin, 301 Ill. App. 3d 303 (Ill. App. 1998) (section 2-1401 basics: meritorious defense, due diligence, and timely filing)