OneWest Bank, FSB v. Topor
2013 IL App (1st) 120010
| Ill. App. Ct. | 2013Background
- Plaintiff OneWest Bank foreclosed on property at 8136 South Natchez, Burbank, IL, after the Topors failed to appear and defaulted; service of process affidavits indicate Agnes was served April 10, 2010 and Bogumil April 4, 2010; final judgment and sale followed with sale confirmation and eviction orders; nearly three months after sale, Topors filed a motion to quash with affidavits challenging service; the trial court ordered the Topors to file a section 2-1401 petition and serve it on plaintiff; the court later denied reconsideration and clarified that a 2-1401 petition was proper vehicle to challenge the void judgment; the appeal challenges whether there was a final, appealable order on the motion to quash and whether the petition should have been treated as a 2-1401 petition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Finality of the order on the motion to quash | Bank argues the court denied the motion to quash on the merits. | Topors contend there was no final appealable order. | Appeal dismissed for lack of a final order. |
| Relation between motion to quash and 2-1401 petition | Bank argues the motion to quash functioned as a 2-1401 petition. | Topors argue proper procedure required a final order or separate 2-1401 petition. | The circuit court did not issue a final ruling on the merits; the matter treated as 2-1401 petition, but still not final on appeal. |
| Waiver under 2-301(a-5) and procedural timing | Waiver should not apply since both jurisdictional and merits were attacked. | Waiver doctrine applies when a party files a pleading other than appearance before asserting jurisdictional objections. | Court concludes no jurisdiction to review due to lack of final order; discusses waiver but dismisses appeal. |
Key Cases Cited
- Sarkissian v. Board of Education, 201 Ill. 2d 95 (2002) (void-judgment challenge may be brought under 2-1401; no need for meritorious defense or due diligence)
- Romo v. Allin Express Service, Inc., 219 Ill. App. 3d 418 (1991) (refiling contemplated when trial court invites refiling of 2-1401 petition)
- Picardi v. Edwards, 228 Ill. App. 3d 905 (1992) (second 2-1401 petition permitted when court invites refiling)
- Belluomini v. Lancome, 207 Ill. App. 3d 583 (1990) (dismissal but petition remained pending; no adjudication on merits)
- GMB Financial Group, Inc. v. Marzano, 385 Ill. App. 3d 978 (2008) (waiver of personal-jurisdiction objections under 2-301(a-5) clarified)
- Sarkissian v. Board of Education, 201 Ill. 2d 95 (2002) (exceptional handling of void-judgment challenges under 2-1401)
- Protein Partners, LLP v. Lincoln Provision, Inc., 407 Ill. App. 3d 709 (2010) (notes on section 2-1401 petition standards)