TCF National Bank v. Richards
65 N.E.3d 988
Ill. App. Ct.2017Background
- TCF National Bank sued Christine Richards for mortgage foreclosure on property at 543 E. 92nd St., Chicago, after default; plaintiff sought judicial sale and an in personam deficiency.
- Plaintiff obtained authorization to use a special process server and filed affidavits for service by publication under 735 ILCS 5/2-206(a) and Cook County Cir. Ct. R. 7.3, supported by three process-server affidavits and a skip-trace showing only the property address.
- Publication ran in the Chicago Daily Law Bulletin; default judgment and foreclosure were entered after Richards failed to appear; notice of sale mailed and sale scheduled.
- Richards appeared pro se the day of sale and obtained a short stay, then filed multiple motions (to quash service by publication, to vacate, motions to reconsider, and a 735 ILCS 5/2-1401(f) petition) contesting personal jurisdiction and service; the court denied relief and confirmed the sale.
- The court entered an order approving the sale and a personal deficiency judgment against Richards for $45,752.94; Richards appealed pro se.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of service by publication (jurisdiction) | Affidavits show due inquiry and diligence (14 visits, skip trace, calls); complied with 2-206 and local rule 7.3 | Publication improper: insufficient diligence (didn't contact neighbors), affidavits defective, publication began before affidavit filed | Service by publication was proper; court had personal jurisdiction; affidavits satisfied statutory and local-rule due inquiry/diligence requirements |
| Request for evidentiary hearing on service | No hearing needed; affidavits raise no genuine dispute of material fact | An evidentiary hearing required because affidavits were untruthful/insufficient | No hearing required; defendant failed to present a significant factual dispute about affidavit truthfulness |
| Motions to reconsider denials of quash/vacate | Motions were untimely and raised no new facts or law | Court ignored affidavits, procedural defects in notice and Rule 113(d) compliance | Denials affirmed; motions untimely and record demonstrates proper notice and Rule 113(d) compliance |
| 735 ILCS 5/2-1401(f) petition to vacate judgment | Petition premature and relief unavailable before final order approving sale | Petition sought relief from foreclosure/judgment for lack of jurisdiction | Petition denied as premature (filed before final, appealable order confirming sale) |
| Entry of in personam deficiency judgment | Plaintiff requested deficiency and met statutory requirements; defendant had appeared earlier (judicial admission/ECF entry) | Defendant argued lack of personal service/appearance, so deficiency improper | Court did not abuse discretion entering deficiency; defendant had appeared and service/appearance supported entry under 15-1508(e) |
Key Cases Cited
- BAC Home Loans Servicing, LP v. Mitchell, 2014 IL 116311 (court must have subject-matter and personal jurisdiction to enter valid judgment)
- EMC Mortgage Corp. v. Kemp, 2012 IL 113419 (foreclosure judgment not final until sale is approved; order confirming sale is final and appealable)
- Volpert v. Household Finance Corp. III, 227 Ill. App. 3d 453 (repeated attempts at known residence can satisfy due inquiry; no requirement to contact neighbors)
- Brown v. First Federal Savings & Loan Ass'n, 74 Ill. App. 3d 901 (evidentiary hearing required if defendant raises significant issue about plaintiff's affidavit truthfulness)
- Household Bank, FSB v. Lewis, 229 Ill. 2d 173 (standard of review for approval of judicial sale and abuse-of-discretion principle)