TCF National Bank v. Richards
65 N.E.3d 988
| Ill. App. Ct. | 2016Background
- TCF National Bank filed a mortgage foreclosure complaint against Christine Richards (property: 543 E. 92nd St., Chicago) and sought a judicial sale and personal deficiency. Plaintiff obtained leave to use special process servers.
- Plaintiff filed affidavits for service by publication and included three process-server affidavits describing 14 attempted personal service visits and a skip-trace showing only the property address. Publication ran in the Chicago Daily Law Bulletin.
- Richards did not appear; the court entered default judgment and set a sale. Richards obtained a temporary stay the day of sale, then filed pro se motions to quash service by publication, to vacate, motions to reconsider, and a section 2-1401(f) petition. The court denied relief and later approved the sale.
- Plaintiff bought the property at sale and sought a personal deficiency; the court entered a deficiency judgment of $45,752.94 against Richards.
- Richards appealed pro se contending service by publication was improper, motions were wrongly denied, her 2-1401 petition was wrongly denied, and the personal deficiency was improper. The appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of service by publication | Plaintiff made an honest, well-directed due inquiry: 14 attempted personal services, skip-trace, phone attempts, and publication satisfied 735 ILCS 5/2-206(a) and Cook Co. Cir. Ct. R. 7.3 | Service was improper: process servers failed to speak to neighbors, did not diligently inquire, and plaintiff knew of other proceedings involving Richards | Service by publication was proper; affidavits showed due inquiry and diligence, no evidentiary hearing required because Richards failed to raise a significant factual dispute |
| Motion to quash / waiver of jurisdictional defense | Plaintiff says Richards waived jurisdictional objection by filing an emergency motion to stay sale without contesting jurisdiction; thus procedural default | Richards contends she preserved the challenge and the court ignored affidavits and local rule violations | Court properly found jurisdiction (service valid) and that Richards’ filings did not create a merit-producing dispute; waiver/forfeiture and merits both resolved against Richards |
| Section 2-1401(f) petition to vacate | Plaintiff: petition was premature because no final, appealable order had yet issued when petition filed | Richards: sought relief from judgment, arguing lack of jurisdiction | Petition was premature (filed before order approving sale) and therefore properly denied; even if considered as other relief, no basis for vacatur given valid service |
| Entry of personal deficiency judgment | Plaintiff requested deficiency and complied with statutory prerequisites; defendant had not timely preserved an appearance-only defense | Richards argued she did not appear and therefore deficiency was improper | Court did not abuse discretion in entering deficiency: plaintiff requested it, defendant had entered appearance (August 26, 2014), and statutory conditions were satisfied |
Key Cases Cited
- BAC Home Loans Servicing, LP v. Mitchell, 2014 IL 116311 (jurisdiction over parties required for valid judgment)
- EMC Mortgage Corp. v. Kemp, 2012 IL 113419 (foreclosure judgment not final until sale confirmation)
- Household Finance Corp. III v. Volpert, 227 Ill. App. 3d 453 (repeated attempts at known residence satisfy due inquiry; no requirement to contact neighbors)
- First Federal Savings & Loan Ass’n v. Brown, 74 Ill. App. 3d 901 (when defendant raises a significant issue about affidavit truthfulness, trial court should hold evidentiary hearing)
- Bank of New York v. Unknown Heirs & Legatees, 369 Ill. App. 3d 472 (due inquiry requires honest, well-directed effort)
- City of Chicago v. Leakas, 6 Ill. App. 3d 20 (due inquiry is not pro forma)
- Household Bank, FSB v. Lewis, 229 Ill. 2d 173 (standard of review for approval of judicial sale)
- Public Taxi Service, Inc. v. Ayrton, 15 Ill. App. 3d 706 (service by publication is extraordinary and disfavored)