2020 IL App (2d) 190521
Ill. App. Ct.2021Background
- PNC Bank filed a foreclosure complaint March 30, 2011; process server attempted service at the secured property (a vacant lot) and also served defendants at a Palatine residence on April 1, 2011 according to affidavits. A court order appointing the private detective as special process server was entered April 4, 2011.
- The trial court entered default judgment and a judgment of foreclosure in February 2012; the property was sold at judicial sale and sale confirmed in June 2012.
- In 2013 purchasers (Heath and Ragland) bought the lot from the Bank, built a house, took loans secured by the property, paid taxes and insurance.
- Defendants filed a section 2-1401(f) petition in September 2018 arguing the foreclosure judgments were void for lack of personal jurisdiction because service allegedly occurred in Cook County before a special appointment was entered. They sought vacatur, restoration of possession, restitution, and damages.
- The Bank and the purchasers moved to dismiss under section 2-619.1; the trial court dismissed with prejudice, holding purchasers were bona fide under section 2-1401(e) and laches barred relief as to the Bank. Defendants appealed and the appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the alleged defect in service (appointment of special process server entered after service) rendered the foreclosure judgments void and whether that defect affirmatively appears on the face of the record | Service affidavits indicate service and represent compliance with 735 ILCS 5/2-202(a); nothing on the face of the record shows noncompliance | Service occurred in Cook County before special appointment; that facial defect makes the judgments void | The affidavit did not specify county or otherwise show noncompliance; the defect did not affirmatively appear on the record |
| Whether subsequent purchasers are protected as bona fide purchasers under section 2-1401(e) | Purchasers acquired for value, relied on the record, paid taxes, improved property and thus qualify for 2-1401(e) protections | Purchasers cannot be protected because jurisdictional defect was apparent on the face of the record | Purchasers are bona fide; 2-1401(e) bars vacation of the sale as to them; petition dismissed as to purchasers |
| Whether laches can bar a collateral attack on an allegedly void judgment when relief is sought against the original foreclosing plaintiff (the Bank) | Laches applies here: six-year delay, defendants had notice, transfers and improvements occurred, and Bank would be prejudiced and cannot recover property | Void judgments may be attacked at any time; laches cannot defeat a jurisdictional voidness claim | Laches may bar relief in appropriate cases; here defendants unreasonably delayed and prejudice to Bank warranted dismissal as to the Bank |
| Whether the appeal is moot or the requested remedies (restitution/possession) are proper | Purchasers argued adverse possession/mootness and that requested relief is improper or impracticable | Defendants sought restoration, restitution, and profits | Court denied mootness dismissal of appeal; trial court correctly dismissed petition (relief impracticable given bona fide purchasers and laches), and appellate court affirmed |
Key Cases Cited
- In re Marriage of Verdung, 126 Ill. 2d 542 (Ill. 1989) (a court must have personal jurisdiction over parties for a valid judgment; lack of jurisdiction renders judgment void)
- Sarkissian v. Chicago Bd. of Educ., 201 Ill. 2d 95 (Ill. 2002) (section 2-1401 petitions alleging void judgments are not subject to the statute’s ordinary time/diligence requirements)
- State Bank of Lake Zurich v. Thill, 113 Ill. 2d 294 (Ill. 1986) (lack of jurisdiction is "apparent" only if it can be determined from the record proper; bona fide purchaser protections under section 2-1401(e))
- Slatin’s Props., Inc. v. Hassler, 53 Ill. 2d 325 (Ill. 1972) (laches is an equitable defense dependent on case facts; relief may be barred even within statutory periods)
- In re Adoption of Miller, 106 Ill. App. 3d 1025 (Ill. App. Ct.) (laches depends on due diligence and circumstances; delay can bar a claim)
- La Salle Nat’l Bank v. Dubin Residential Communities Corp., 337 Ill. App. 3d 345 (Ill. App. Ct.) (laches bars claims where plaintiff slept on rights and delay caused prejudice)