2016 IL App (2d) 150040
Ill. App. Ct.2016Background
- U.S. Bank filed a mortgage foreclosure in Du Page County against Syeda Nazia Rahman; summonses listed multiple addresses including Rahman’s Hinsdale (subject property) and Hanover Park addresses.
- Pierce & Associates retained ProVest (special process server); ProVest’s employee Pamela Thornburg filed affidavits claiming service at a Bartlett address (Cook County) and the Hanover Park address.
- Rahman did not appear; the trial court entered a default foreclosure judgment (July 13, 2010), the property was sold at sheriff’s sale, and the Badermans purchased and received deed in December 2012.
- Over two years after the sale Rahman filed a petition to quash service, arguing service was improper under 735 ILCS 5/2-202(a) because special process servers in counties with 1,000,000+ population (Cook) require court appointment.
- The trial court held service was improper and the judgment void for lack of personal jurisdiction, but ruled section 2-1401(e) protected the Badermans’ title because the jurisdictional defect did not affirmatively appear on the face of the record.
- On appeal the court affirmed: service was defective (judgment void) but the Badermans were bona fide purchasers whose property rights were protected by section 2-1401(e).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was service valid under §2-202(a)? | Service was proper; standing order in Cook authorized ProVest; or relevant county is where case filed (Du Page). | Service was invalid because special process servers in Cook County required a court appointment and none was in record. | Service was improper — personal jurisdiction lacking because service occurred in Cook County without court appointment. |
| Does GAO 2007-03 / Cook standing order validate service? | GAO 2007-03 standing order appointed ProVest for Pierce & Associates in Cook chancery, authorizing the service. | GAO 2007-03 applies only to Cook County and is not binding on Du Page courts; thus it cannot validate service here. | GAO 2007-03/standing order irrelevant — it applied to Cook chancery cases and did not cure Du Page service defect. |
| Does the jurisdictional defect affirmatively appear on the face of the record (so §2-1401(e) does not apply)? | The summonses/affidavits show DU/DS markings and service locations; defendant had constructive notice, so defect is apparent. | The record lacks affirmative proof that service occurred in Cook County; external inquiry required, so defect not apparent. | Defect did not affirmatively appear on face of the record; external materials were needed to determine county of service. |
| Are the Badermans protected as bona fide purchasers under §2-1401(e)? | N/A (third-party purchasers argue protection). | Rahman contends they had constructive notice and thus were not bona fide purchasers. | Badermans were bona fide purchasers; §2-1401(e) protects their title despite the underlying void judgment. |
Key Cases Cited
- Sarkissian v. Chicago Board of Education, 201 Ill. 2d 95 (void judgment for lack of jurisdiction requires strict compliance with service statutes)
- State Bank of Lake Zurich v. Thill, 113 Ill. 2d 294 (judgment rendered without statutory service is void even if defendant had actual knowledge)
- Smith v. Airoom, Inc., 114 Ill. 2d 209 (elements and timing for relief under section 2-1401 generally)
- In re Estate of Barth, 339 Ill. App. 3d 651 (attack on void judgment is not subject to the usual §2-1401 meritorious-defense/due-diligence requirements)
- In re Application of the County Collector, 397 Ill. App. 3d 535 (§2-1401(e) can protect bona fide purchasers from effects of vacatur of title-affecting judgments)
- Christiansen v. Saylor, 297 Ill. App. 3d 719 (policy behind §2-1401(e) protects third-party purchasers when jurisdictional defects are not apparent)
- Bank of New York v. Unknown Heirs & Legatees, 369 Ill. App. 3d 472 (constructive notice defeats bona fide purchaser status)