TCF National Bank v. Richards
2016 IL App (1st) 152083
| Ill. App. Ct. | 2016Background
- TCF National Bank filed a mortgage foreclosure complaint (Dec. 2013) against Christine Richards for default on a Chicago property; plaintiff sought judicial sale and an in personam deficiency.
- Plaintiff obtained authorization to use special process servers and filed affidavits for service by publication under 735 ILCS 5/2-206(a); process servers attempted personal service multiple times at the property in December 2013 and a publication ran in January 2014.
- Richards did not initially appear; court entered default judgment and judgment of foreclosure (May 23, 2014). A sale was scheduled for August 26, 2014 but was stayed after Richards filed an emergency motion the day before the sale.
- Richards then filed multiple pro se motions (to quash service, to vacate, to reconsider) arguing publication/service was improper and alleging lack of personal jurisdiction; the court denied those motions and later confirmed the sale (June 25, 2015), entering a deficiency judgment of $45,752.94 against Richards.
- Richards appealed; the appellate court reviewed de novo whether service by publication complied with statutory and local-rule requirements, whether hearings were required, timeliness of motions, and whether a 2-1401 petition was premature.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether service by publication satisfied 735 ILCS 5/2-206(a) and Cook Co. Cir. Ct. R. 7.3 | Elite’s affidavits show due inquiry and repeated attempts at the only known address; publication was proper | Process servers were not diligent (e.g., did not contact neighbors); plaintiff knew of municipal case showing whereabouts | Service by publication was proper; affidavits demonstrated due inquiry/diligence; no evidentiary hearing required |
| Whether defendant preserved/jurisdictional objection by filing emergency stay without contesting jurisdiction | Plaintiff: Richards waived jurisdictional objection under 735 ILCS 5/15-1505.6 by seeking relief without contesting jurisdiction | Richards: continued to assert lack of personal jurisdiction and defective service | Court found jurisdiction existed because service was valid and Richards’ actions (including filing an appearance) waived/failed to preserve the jurisdictional defense |
| Whether motions to reconsider were timely and should have been granted | Plaintiff: motions untimely, raised no new facts or law; record shows proper notices and Rule 113(d) compliance | Richards: court ignored affidavits and procedural defects (notice incomplete, Rule 113(d) failure) | Motions to reconsider denied as untimely and without new evidence; record contradicted defendant’s claims about notice and Rule 113(d) filing |
| Whether 735 ILCS 5/2-1401(f) petition to vacate was properly denied | Plaintiff: petition premature because final, appealable order is the order confirming the sale | Richards: sought relief from judgment asserting lack of jurisdiction | Petition denied as premature (filed before order confirming sale); even treated as other motion, no basis for relief because service was proper and foreclosure meritorious |
Key Cases Cited
- BAC Home Loans Servicing, LP v. Mitchell, 2014 IL 116311 (Illinois Supreme Court) (court must have both subject-matter and personal jurisdiction for valid judgment)
- EMC Mortgage Corp. v. Kemp, 2012 IL 113419 (Illinois Supreme Court) (foreclosure judgment not final and appealable until order approving sale and directing distribution)
- Volpert v. Household Finance Corp. III, 227 Ill. App. 3d 453 (Ill. App. Ct.) (repeated attempts at a confirmed residence can satisfy due inquiry; no per se requirement to contact neighbors)
- First Federal Savings & Loan Ass’n v. Brown, 74 Ill. App. 3d 901 (Ill. App. Ct.) (if defendant raises a substantial challenge to plaintiff’s affidavit, trial court should hold evidentiary hearing)
- Public Taxi Service, Inc. v. Ayrton, 15 Ill. App. 3d 706 (Ill. App. Ct.) (service by publication is an extraordinary and least satisfactory means of notice)