U.S. Bank National Association v. Luckett
987 N.E.2d 47
Ill. App. Ct.2013Background
- U.S. Bank National Association, as trustee for Credit Suisse First Boston HEAT 2005-5, filed a forcible entry and detainer action against Michael Luckett, Ruby Wilson, and unknown occupants seeking possession.
- A preeviction notice on the filing law firm's letterhead listed the owner as Bank National Association, as Trustee for Credit Suisse First Boston HEAT 2005-5, omitting the initials 'U.S.' but attached a foreclosure order correctly listing the plaintiff.
- Luckett and Wilson were served August 24, 2011; a trial led to an October 31, 2011 order of possession in favor of U.S. Bank, with a stay until November 7, 2011.
- Defendants filed unclear motions; the court denied dismissals but allowed an amendment process; U.S. Bank moved to amend the complaint and possession order to reflect the correct plaintiff name.
- On December 14, 2011 the court amended nunc pro tunc to correct the plaintiff’s name, and the notice of appeal followed; the appellants challenged the amendment and ownership issues.
- The appellate court affirmed the circuit court’s judgment as modified, removing nunc pro tunc language and holding the amendments relate back to the original filings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of the misnomer correction | Misnomer correction is proper; amendment relates back. | Misnaming defeats standing and validity of the action. | Amendment valid; relates back, misnomer not fatal. |
| Effect of the preeviction notice on the action | Notice complied with 15-1701(h)(4) despite minor naming variance. | Flawed notice deprives plaintiff of rights and justifies dismissal. | Notice proper; no nullification of the action. |
| Jurisdiction over the three orders on appeal | Appeal covers all steps in the progression to the judgment. | Jurisdiction limited to specified order only. | Appellate jurisdiction over all three orders. |
| Sanctions under Rule 137 | No sanction warranted for clerical misnomer. | Sanctions appropriate for filing in a nonexistent entity's name. | No Rule 137 sanctions imposed. |
Key Cases Cited
- Bristow v. Westmore Builders, Inc., 266 Ill. App. 3d 257 (1994) (misnomer corrected; not fatal to action)
- Calvert Distillers Co. v. Vesolowski, 14 Ill. App. 3d 634 (1973) (misnomer; suit not a nullity)
- Todd W. Musburger, Ltd. v. Meier, 394 Ill. App. 3d 781 (2009) (misnomer corrected; relation back favored)
- Maggi v. RAS Development, Inc., 2011 IL App (1st) 091955 (2011) (relation-back doctrine in misnomer cases)
- Burtell v. First Charter Service Corp., 76 Ill. 2d 427 (1979) (liberal construction of appeals; unspecified judgments reviewable)