OneWest Bank, FSB v. Markowicz
2012 IL App (1st) 111187
Ill. App. Ct.2012Background
- Plaintiff OneWest Bank foreclosed on the Markowiczs’ mortgage after they defaulted in 2008.
- Plaintiff obtained a standing order appointing a standing special process server under GAO 2007-03 to handle mortgage foreclosure cases.
- Codilis & Associates filed a motion for appointment of a standing special process server and an affidavit for publication service; ProVest served as the process server.
- Defendants moved to quash service in January 2011; the trial court denied the motion and the foreclosure sale was confirmed.
- On appeal, defendants challenged GAO authority, compliance of the enabling order, and the validity of service by publication; the court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of the GAO authority | GAO properly issued under Rule 21(c) delegated authority. | Presiding judge had no authority to issue/enforce GAO. | GAO valid; presiding judge had authority. |
| Compliance of enabling standing order with GAO | Order substantially complied; it identified a finite quarter. | Wordings deviated (period vs quarter) and noncompliant. | Standing order valid; GAO compliance satisfied. |
| Authorization of service by publication | Affidavit under 2-206(a) sufficiently supports publication. | Affidavit signature/identification deficient. | Affidavit valid; service by publication proper. |
| GAO vs. statutory procedure (2-201/2-202) | GAO is procedural; does not violate 2-201/2-202. | GAO circumvents statutory service steps. | GAO does not conflict; procedural rule prevails. |
Key Cases Cited
- Dzis, U.S. Bank, N.A. v., 2011 IL App (1st) 102812 (2011) (validates Rule 21(c) authority to issue general orders and GAO use)
- Joseph, People v., 113 Ill. 2d 36 (1986) (Rule 21(c) authority; delegation to presiding judges)
- Schorsch v. Fireside Chrysler-Plymouth, Mazda, Inc., 172 Ill. App. 3d 993 (1988) (requirements of 2-201/2-206 followed; process not voided by minor defects)
- Ligon v. Williams, 264 Ill. App. 3d 707 (1994) (justiciable questions and court jurisdiction related to orders)
- Owens v. Ranstead, 22 Ill. 161 (1859) (buried rules must be on record; publicity required)