BMO Harris Bank, N.A. v. MalarzBMO Harris Bank, N.A. v. Malarz
*1 Illinois Official Reports
Appellate Court
BMO Harris Bank, N.A. v. Malarz
,
Appellate Court BMO HARRIS BANK, N.A., as Successor in Interest to Harris, N.A., Caption Plaintiff-Appellee, v. MARCIN MALARZ; ANNA MALARZ;
RICHARD McDONALD; CONCORD-AIR, INC.; JOSEPH SCHIAVONE; H.A. SCHIAVONE; UNKNOWN OWNERS; OWNERS; and NONRECORD CLAIMANTS, Defendants (Richard McDonald, Defendant-Appellant).
District & No. Second District
No. 2-19-0984 Filed January 20, 2021
Decision Under Appeal from the Circuit Court of Lake County, No. 10-CH-636; the Hon. Daniel L. Jasica, Judge, presiding. Review Judgment Affirmed.
Counsel on Adam Goodman, of Goodman Tovrov Hardy & Johnson LLC, of Chicago, for appellant. Appeal
Gabriella R. Comstock, of Keough & Moody, P.C., of Naperville, for appellee.
Panеl JUSTICE HUTCHINSON delivered the judgment of the court, with
opinion.
Justices Jorgensen and Schostok concurred in the judgment and opinion.
OPINION ¶ 1 Defendant, Richard McDonald, appeals the trial court’s order dismissing his second
amended petition, filed under section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2016)), as untimely under section 15-1505.6(a) of the Illinois Mortgage Foreclosure Law (Foreclosure Law) ( id. § 15-1505.6(a)). Defendant contends that his second amended petition was timely because, among other reasons, the period for filing his action was tolled when he withdrew his first amended petition without prejudice. We affirm. I. BACKGROUND In 2008, Marcin Malarz executed a mortgage and note in favor of defendant, pledging
residential property as security for a loan. Plaintiff, BMO Harris Bank N.A., as successor in interest to Harris, N.A., held a first mortgage on the property. In February 2010, plаintiff filed a complaint to foreclose the mortgage and named defendant as a party. Defendant was served by a special process server but did not appear in court. On December 6, 2011, a default judgment and order of foreclosure was entered. In Fеbruary 2012, defendant called plaintiff’s counsel to inquire about the judicial sale and
request the opening bid. Defendant said that he was monitoring the foreclosure action because he had a lien on the property. However, defendant did not appear in the action, and the property was sold. An order confirming the sale was entered in April 2012. On October 10, 2017, counsel filed an appearance on behalf of defendant, together with a
motion to vacate the default judgment and quash service of process. On November 1, 2017, the trial court entered an order permitting defendant to file, within 14 days, an “amended motion/petition.” On November 15, 2017, defendant filed a first amended petition under section 2-1401 to quash service. Defendant alleged that the service of process lacked a required court order. On February 15, 2018, defendant moved for leave to file an amended petition. On February 16, 2018, an agreed order was entered whereby the November 15, 2017, petition was withdrawn without prejudice and the February 15, 2018, motion for leave to file was stricken. The order further statеd, “This case shall be closed.” On August 3, 2018, new counsel for defendant filed an appearance. Counsel also filed a
motion to reopen the case and to file an attached second amended petition to quash service. The second amended рetition likewise asked for the case to be reopened. Plaintiff moved to dismiss the petition and strike the motion, arguing in part that the petition was untimely because it was not filed within 60 days of defendant’s first appearance in the action, as required by section 15-1505.6(a) of the Foreclosure Law. On November 6, 2019, the court entered a written order, stating that (1) the motion to dismiss and strike was heard that day, (2) the court was granting the motion, and (3) defendant’s second amended petition was untimely under section 15-1506.6(a). The record contains no report of proceedings for any hearing, including the *3 November 6, 2019, hearing. Defendant appeals. II. ANALYSIS Defendant contends that his second amended petition was timely under section 15-
1505.6(a) because (1) the court should not count the time between the closure of the first case аnd the filing of the second amended petition against section 15-1505.6(a)’s 60-day period; (2) the second amended petition related back to his original motion to quash, which was filed on the day he first appeared in the action; and (3) the second amended petition wаs filed within the one-year window under section 13-217 of the Code (735 ILCS 5/13-217 (West 1994)) [1] for filing a new action. Section 15-1505.6(a) of the Foreclosure Law provides that, in a residential mortgage
foreclosure proceeding, when a party moves to dismiss the cause or to quash service оf process
on the basis that the trial court lacked personal jurisdiction, the party must do so within 60 days
of either the date he or she first files an appearance or the date he or she first participates in a
hearing without filing an appearance, whiсhever is earlier. 735 ILCS 5/15-1505.6(a) (West
2016);
Wells Fargo Bank, National Ass’n v. Roundtree
,
the defendant filed an appearance on January 30, 2013, and a motion to quash service on February 6, 2013. Defendant voluntarily withdrew the motion on April 11, 2013, with no indication that he sought an extension of time. On April 22, 2013, he filed an amended motion to quash, and the trial court denied it as untimely. The First District affirmed, holding that, under the plain language of section 15-1501.6(a), more than 60 days had passed between the defendant’s first appearance and the filing of the amended motion. Pieczonka , 2015 IL App (1st) 133128, ¶ 12. The court rejected the defendant’s argument that the only time of concern was between his first appearance and the filing of his first motion to quash. ¶ 13. The court
stated that, because the defendant voluntarily withdrew the first motion and the record did not show that he had sought an extension of time, the date that he filed the first motion was not relevant. Instead, the relevant period was between the defendant’s first appearance and the dаte of his amended motion. Accordingly, the amended motion was untimely. Id.
¶ 12 Here, under Pieczonka , defendant’s second amended petition was untimely, as it was filed
well beyond 60 days from his first appearance in the action. While
Pieczonka
involved a
motion to quash instead of a section 2-1401 petition, that distinction does not matter. See
Roundtree
,
that the petition was withdrawn without prejudice. But that distinction makes no difference here. As the court in Pieczonka noted, section 15-1506.6 plainly requires the challenge to service to be made within 60 days of the first appearance, with the only exception being if the time is extended by the trial court for good cause shown. Here, as in Pieczonka , there is no indication that defendant ever asked for an extension of time or was granted one (if such occurred at a hearing, we would not necessarily know, because the record contains no reports of proceeding). The voluntary withdrawal of the petition “without prejudice” does not equate to an extension of time for good cause shown. Defendant also contends, with little discussion, that Pieczonka does not apply because it
was implicitly overruled by
Bank of New York Mellon v. Laskowski
,
5/2-616(a) (West 2016)), the second amended petition relates back to his initial motion to quash, for purposes of the 60-day time limitation. Plaintiff contends that the issue is forfeited because it was not raised in the trial court. Under sections 2-616(a), (b) of the Code ( id. § 2-616(a), (b)), an amended pleading may
be allowed at any time before final judgment and may also be deemed to relate back to an earlier pleading for purposes of a limitations period.
“In determining whether a motion to amend should have been granted by the circuit court, we consider the following four factors: whether the proposed amendment would cure the defective pleading, whether the proposed amendment would surprise or prejudice the opposing party, whether the proposed amendment was timely filеd, and whether the moving party had previous opportunities to amend.” City of Chicago v. City of Kankakee ,2019 IL 122878 , ¶ 20.
The trial court’s ruling on the multifactored question of whether an amendment should be
permitted is reviewed for abuse of discretion. By contrast, the question of whether an
amendment relates back to a prior pleading is reviewed
de novo
.
Porter v. Decatur Memorial
Hospital
,
first time on appeal.
Village of Roselle v. Commonwealth Edison Co.
,
section 13-217 of the Code (735 ILCS 5/13-217 (West 1994)). Section 2-1009(a) of the Code allows a plaintiff to voluntarily dismiss an action before trial begins. 735 ILCS 5/2-1009(a) (West 2016). Meanwhile, section 13-217 allows one year for a plaintiff to refile a “new action” after a voluntary dismissal. 735 ILCS 5/13-217 (West 1994). The record doеs not show that this issue was presented to the trial court. The argument was not raised in defendant’s pleadings, and there is no record of any hearings below. Accordingly, this issue, too, was forfeited. Defendant argues that our ability to determine the issue is clear from the common lаw
record and that the matter is not one within the trial court’s discretion. But the record is
ambiguous as to defendant’s intent in withdrawing the first amended petition and later seeking
to file the second amended petition. The February 16, 2018, order stated that defendant was
withdrawing the first amended рetition without prejudice but also stated that the case was
closed. Defendant later moved to reopen the case and file his second amended petition, which
also sought to reopen the case. Thus, it appears that defendant was attempting to reinstate the
dismissed action, not file a new action. Seeking to reinstate the action would be consistent with
defendant’s relation-back argument. However, to the extent that defendant was attempting to
reinstate the action, section 13-217 was inapplicable. A “new action” under section 13-217 is
not a reinstatement of the old action but an entirely new and separate action.
Richter v. Prairie
Farms Dairy, Inc.
,
Notes
[1] The 1994 version applies because a 1995 amendment was found unconstitutional in
Best v. Taylor
Machine Works
,