The Bank of New York Mellon v. Laskowski
104 N.E.3d 1145
Ill.2018Background
- Bank of New York Mellon filed a residential mortgage foreclosure in Will County against Mark Laskowski, Pacific Realty Group, LLC (Pacific), and others in June 2010.
- Bank obtained service by publication for Pacific after a due-diligence search; Pacific did not initially appear and a default judgment and foreclosure were entered in July 2012; property sold at sheriff’s sale in February 2013.
- When Bank noticed a post-sale motion in April 2013, Pacific’s counsel first appeared; the trial court dismissed the case for want of prosecution (DWP) because Bank failed to appear, then reinstated the case on May 30, 2013 after Bank moved to vacate the DWP.
- Pacific filed a motion to quash service on July 18, 2013, arguing service by publication was improper for an unregistered foreign LLC; the trial court denied the motion as untimely under 735 ILCS 5/15-1505.6(a) and on the merits.
- The appellate court affirmed (divided), holding Pacific’s motion was filed more than 60 days after it filed an appearance and no extension was sought; one justice dissented, contending the 60-day clock began on reinstatement.
- The Illinois Supreme Court granted leave, held the 60-day statutory period is tolled while the foreclosure action is dismissed for want of prosecution, and remanded for consideration of the merits of the service-by-publication claim.
Issues
| Issue | Bank's Argument | Pacific's Argument | Held |
|---|---|---|---|
| Whether Pacific’s motion to quash service was timely under 735 ILCS 5/15-1505.6(a) | The statute is clear: the 60-day deadline runs from the date of appearance; Pacific filed ~90 days later, so untimely | The 60-day clock cannot run while the foreclosure action is dismissed for want of prosecution; time during DWP should not count, so the motion (filed 49 days after reinstatement) was timely | Time between dismissal and reinstatement is excluded; motion was timely (filed within 60 days after reinstatement) |
| Whether the appellate court should reach the merits of whether service by publication was proper | If timeliness upheld, merits need not be reached | Motion should be considered on merits because it was timely | Merits were not decided; case remanded to appellate court to consider propriety of service by publication |
Key Cases Cited
- Case v. Galesburg Cottage Hosp., 227 Ill.2d 207 (2007) (time between dismissal and refiling is not counted when assessing diligence or timing tied to a pending action)