2013 IL App (1st) 120612
Ill. App. Ct.2013Background
- Alfred Zwolinski signed a $90,355 promissory note and secured it with a mortgage on the Roscoe property, Beata Zwolinski signing as non-vested spouse.
- Wells Fargo filed a foreclosure complaint on December 16, 2009, joining Beata, Hagan, Harris, and unknown heirs; summons directed service at the Roscoe property.
- Garcia, ProVest process server, attempted service on Beata and Alfred on December 19, 2009; Beata was served at Elmwood Park; Alfred was not served.
- Lynda Hansell prepared a due-diligent search, listing Roscoe as Alfred’s last known address and documenting extensive inquiries to locate him.
- Wells Fargo sought service by publication under 2-206(a); Alfred, Hagan, and unknown heirs were deemed unfindable; publication was directed at the Roscoe address as last known.
- In February 2010, Alfred, Hagan, and unknown heirs were served by publication; foreclosure judgment and sale followed in August 2010; proceeds surplus was later identified.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 303(c) compliance is jurisdictional to appeal | Wells Fargo argues failure to serve notice of appeal defeats jurisdiction. | Zwolinski contends service in error should not bar appeal; argues insufficiency merits reconsideration. | Appeal dismissed for blatant Rule 303(c) violation. |
| Whether the failure to serve a notice of appeal prejudices adverse parties | Wells Fargo asserts no prejudice to it; argues others may be prejudiced. | Zwolinski posits prejudice to Hagan, Harris, and Nowakowskis if reversed. | Significant prejudice to parties in interest; dismissal appropriate. |
Key Cases Cited
- Kawa v. Harnischfeger Corp., 204 Ill. App. 3d 206 (1990) (jurisdictional effect of failure to serve notice of appeal)
- Leyden Fire Protection District v. Township Board of Leyden Township, 26 Ill. App. 3d 569 (1975) (service-notice deficiencies may prejudice adverse parties)
- Simmons v. Chicago Housing Authority, 267 Ill. App. 3d 545 (1994) (prejudice analysis for lack of notice in appeals)