2020 IL App (2d) 190774
Ill. App. Ct.2020Background
- Ocwen filed a mortgage foreclosure complaint in March 2010 against Guadalupe DeGomez and Teresa Trujillo; both were served and a default judgment and judicial sale followed in 2010.
- The sale was confirmed and title transferred to purchasers in 2011; various mortgages and satisfactions were recorded thereafter.
- In September 2018 (≈8½ years after the default judgment), DeGomez and Trujillo filed a section 2-1401(f) petition seeking to vacate the foreclosure and sale as void for lack of personal jurisdiction, arguing defects in the summons (not naming defendants on its face / not directed to them).
- Ocwen and MERS moved to dismiss under section 2-619.1; the purchasers and MERS settled with defendants and title was quieted in the purchasers; the court then addressed mootness and laches.
- The trial court dismissed defendants’ petition with prejudice as to Ocwen, holding the petition moot as to possession claims and that laches barred the remaining relief; defendants appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of summons as to DeGomez / personal jurisdiction | Summons caption and service provided adequate notice; jurisdiction proper | Summons was technically defective (name placement), so judgment void | Summons sufficiently notified DeGomez; personal jurisdiction existed; petition dismissed as to DeGomez |
| Validity of summons as to Trujillo / personal jurisdiction | Summons and service were sufficient; jurisdiction obtained | Summons failed to name Trujillo on its face and thus was no summons | Summons was defective as to Trujillo, but dismissal affirmed on alternative grounds (laches / settlement) |
| Whether laches can bar collateral attack on an allegedly void judgment | Laches applies here due to 8+ year delay and prejudice to Ocwen/purchasers | Void judgments may be attacked at any time; laches cannot bar such jurisdictional attacks | Laches can bar relief in appropriate cases; here defendants’ long delay and resulting prejudice warranted dismissal |
| Whether restitution / money damages are cognizable in a section 2-1401 petition | Petition cannot seek money damages in a 2-1401 collateral attack | Defendants sought restitution, use-and-occupancy, and profits | Money damages (restitution/rent/profits) are not cognizable in a section 2-1401 petition; those claims were dismissed |
Key Cases Cited
- Ohio Millers Mutual Insurance Co. v. Inter-Insurance Exchange of the Illinois Automobile Club, 367 Ill. 44 (1937) (a summons that does not name a person on its face notifies the unnamed person and is ‘‘no summons at all’’ for that person)
- Pyle v. Ferrell, 12 Ill. 2d 547 (1958) (laches bars equitable relief where delay and prejudice make relief inequitable)
- James v. Frantz, 21 Ill. 2d 377 (1961) (laches may limit when a void judgment may be collaterally attacked depending on circumstances)
- La Salle National Bank v. Dubin Residential Communities Corp., 337 Ill. App. 3d 345 (2003) (describes laches as dependent on due diligence and prejudice under case facts)
- Warren County Soil & Water Conservation Dist. v. Walters, 2015 IL 117783 (2015) (section 2-1401 is the statutory procedure to vacate or modify a final order or judgment)
- Burchett v. Goncher, 235 Ill. App. 3d 1091 (1991) (money damages are not proper relief in a collateral section 2-1401 attack)
- Eckberg v. Benso, 182 Ill. App. 3d 126 (1989) (Illinois courts have applied laches to bar claims that a decree is void for defective service)