2015 IL App (1st) 141272
Ill. App. Ct.2015Background
- Wells Fargo filed a residential mortgage foreclosure complaint against Phillip Sanders; substitute service was allegedly made at 6629 S. Bishop on Dec. 4, 2011.
- A default foreclosure judgment was entered July 24, 2012 after Sanders failed to file an answer within the court’s extension; Sanders later filed motions to vacate and various pro se filings.
- The property was sold at judicial sale Oct. 25, 2012 and the sale was confirmed March 15, 2013; Sanders later alleged wrongful eviction and lock change in Feb. 2014.
- Sanders filed a section 2-1401 petition (Mar. 31, 2014) seeking vacatur of the default judgment on grounds including lack of service/personal jurisdiction, plaintiff’s lack of standing, procedural errors, and insufficiency of the affidavit supporting foreclosure.
- The trial court denied/struck the petition (Apr. 15, 2014) on multiple grounds: procedural defects (courtroom procedures, service), lack of jurisdiction under precedent, waiver under the Foreclosure Law’s 60-day rule, and failure to present new undiscoverable facts; this appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ripeness / premature sua sponte dismissal under Laugharn | Dismissal was proper; record doesn’t show a premature sua sponte ruling and appellant failed to supply a complete record. | Petition was dismissed 15 days after filing, before the 30-day response period required by Laugharn, so dismissal was premature. | Court presumed record supported proper procedure (appellant failed to reconstruct record); did not reach Laugharn reversal because appellant bears record burden. |
| Personal jurisdiction / sufficiency of substitute service | Jurisdictional objection was waived under 735 ILCS 5/15-1505.6 because Sanders participated in the May 8, 2012 hearing and failed to object within 60 days. | Service was improper (Sanders didn’t live at the served address; John Sanders was not a resident), so the judgment is void. | Waiver: Sanders participated and failed to timely move; incomplete record precluded overturning waiver — jurisdictional challenge denied. |
| Merits: standing, procedural defects, affidavit sufficiency | Plaintiff argued issues like standing and affidavit sufficiency were forfeited by default or unsupported by the record. | Sanders argued lack of standing, violation of section 2-1203 re: confirmation of sale, failure to name occupants, and affiant lacked personal knowledge. | Court found standing and other defenses forfeited by default or inadequately supported; petitioner failed to plead/prove meritorious defenses. |
| Due diligence for 2-1401 relief | Petition must allege meritorious defense and due diligence; Sanders did not plead diligence. | Sanders sought equitable relief and alleged procedural and jurisdictional defects. | Petition dismissed: Sanders failed to show due diligence in presenting defenses or in filing 2-1401; burden not met. |
Key Cases Cited
- People v. Laugharn, 233 Ill. 2d 318 (Ill. 2009) (court may not sua sponte dismiss a 2-1401 petition before the 30-day response period expires)
- People v. Vincent, 226 Ill. 2d 1 (Ill. 2007) (standard of review for dismissal of a 2-1401 petition is de novo)
- Sarkissian v. Chicago Board of Education, 201 Ill. 2d 95 (Ill. 2002) (void judgments may be attacked at any time; 2-year limitations do not apply)
- Paul v. Gerald Adelman & Associates, Ltd., 223 Ill. 2d 85 (Ill. 2006) (petitioner bears burden to show facts that, if known, would have precluded original judgment)
- Smith v. Airoom, Inc., 114 Ill. 2d 209 (Ill. 1986) (elements required for relief under section 2-1401: meritorious defense and due diligence)
- Foutch v. O'Bryant, 99 Ill. 2d 389 (Ill. 1984) (appellant bears burden to provide a complete record on appeal; missing transcript presumption favors trial court)
- Gowler v. Ferrell-Ross Co., 206 Ill. App. 3d 194 (Ill. App. 1990) (court of review is not obligated to search the record for evidence to support reversal)
- Mortgage Electronic Registration Systems, Inc. v. Barnes, 406 Ill. App. 3d 1 (Ill. App. 2010) (failure to timely raise standing results in forfeiture)