City of Rockford v. GillesCity of Rockford v. Gilles
¶ 1 Plaintiff, the City of Rockford (City), brought an action to foreclose special assessment liens on the property of defendant, Jeffrey A. Gilles. Following Gilles’s failure to appear, the trial court entered an order of default and judgment of foreclosure and sale. The trial court subsequently entered an order approving the report of sale and distribution, confirming the sale, and ordering eviction. More than two years later, Gilles filed a petition for relief from judgment pursuant to
¶ 2 I. BACKGROUND
¶ 3 Gilles owned two vacant lots located on Rote Road in Rockford. At some point, Gilles moved out of Illinois and to Colorado. It was undisputed that, over the course of 13 years—between 2004 and 2017—the City recorded with the Winnebago County Recorder 20 special assessment liens against the property. The liens were for the City’s costs and expenses incurred in mowing the property, cleaning up hazardous debris, and/or abating nuisance vegetation on the property. The amount due totaled $11,465.
¶ 4 A. Default Order and Order Confirming Sale
¶ 5 On November 29, 2017, the City filed a complaint to foreclose the special assessment liens against the property. The named defendants were Gilles, Landmark National Corporation (Landmark) (alleged to be the mortgage holder), unknown owners, and nonrecord claimants. Three attempts to serve Gilles personally at his last known address in Colorado were made on December 28, 2017, at 8:25 a.m.; January 3, 2018, at 11:45 a.m.; and January 9, 2018, at 3:30 p.m. The return of service noted, respectively, “NO CONTACT/LEFT CARD ON DOOR GATE OPEN,” “NO CONTACT/LEFT CARD ON MAIL BOX GATE CLSED,” and “NO CONTACT/LEFT CARD GATE CLOSED.”1 Subsequently, the trial court granted the City’s motion to serve by publication. The certificate of publication was filed on June 5, 2018.
¶ 6 On July 30, 2018, the City filed a motion for a default judgment and for the entry of a judgment of foreclosure and sale of the property and a motion to shorten the redemption period on the basis that the property had been abandoned. The City’s proof of service reflects that notice of the motions was mailed to Gilles’s last known address in Colorado and to Landmark.
¶ 7 On August 23, 2018, the trial court entered an order of default against Gilles and the other defendants, a judgment of foreclosure and sale of the property, an order appointing a selling
¶ 8 Following the sale of the property to the City, on November 1, 2018, the trial court entered an “Order Approving Report Of Sale And Distribution, Confirming Sale, And Order to Evict,” finding that there was no redemption or reinstatement within the relevant period, the court obtained personal jurisdiction over those defendants personally liable to the City for any deficiency from the sale, all notices required by
¶ 9 B. Untimeliness of Section 2-1401 Petition
¶ 10 Over two years after the entry of the order approving the sale of the property, on November 19, 2020, Gilles filed a petition for relief from judgment pursuant to
¶ 11 Gilles alleged in his petition that he “never received actual notice of the proceeding” and “made no effort to avoid or evade service of process.” Rather, “during the applicable period, [he] lived in the State of Colorado, was employed as a physician in the State of Montana and spent the vast majority of his time in Colorado out of his residence and in hospitals and other medical facilities attending to his wife during her suffering of, treatment for, and ultimate death from brain cancer.”
¶ 12 Gilles alleged that he has a meritorious defense to the City’s foreclosure complaint “in that the value of the property foreclosed is substantially and unconscionably greater than the amounts due pursuant to mowing, weed or other municipal liens herein foreclosed by the [City] and at all relevant times, [Gilles] was financially able and willing to pay all such amounts due.” In addition, Gilles alleged that he acted diligently “from the time he discovered the claim to the land.” In his affidavit, Gilles specified that, upon failing to receive a 2019 tax bill for the property during the summer of 2020, he “checked with the Winnebago County Treasurer’s office on-line to discover that taxes were assessed in the name of the [City].” Gilles attested that, “[u]pon so learning, he immediately contacted his Illinois counsel who ordered a title search within days of such contact and within one week of receiving such title search reports, checked the contents of the court file on this matter, advised your affiant and in consultation with them, the decision was made to file this petition.”
¶ 13 The trial court set a briefing schedule on the
¶ 14 1. Gilles’s Supporting Memorandum
¶ 15 Gilles acknowledged
¶ 16 Gilles elaborated that, “on or about September 2, 2020,” after he did not receive a tax bill in the summer of 2020 and learned that the property was assessed to the City as the owner, he contacted his attorneys to investigate. His attorneys “ordered a title search from NLT Title LLC on September 3, 2020,” and on October 6, 2020, and October 21, 2020, his attorneys
“again contacted the title company concerning the title search and were advised that due to the COVID pandemic and closure of the Winnebago County Recorder’s office and Winnebago County Clerk’s office for a period of time, the title company was unable to conduct and provide a title search until November 2, 2020.”
¶ 17 Upon subsequent receipt of the title search, “on or about November 12, 2020,” Gilles’s attorneys “visited the offices of the Winnebago County Clerk of Courts and examined the court file and determined that the title to the property had transferred from Gilles to the City as a result of a foreclosure action by the City of mowing liens.” Then, on November 17, 2020, “Gilles’s attorneys conferred with him and on November 18, 2020, this petition was filed.” (The petition was actually filed on November 19, 2020). Accordingly, Gilles argued that equitable tolling should be applied to allow consideration of the
¶ 18 Gilles also reiterated that he established the existence of a meritorious defense to the underlying action in that he alleged his “complete willingness and ability to have satisfied that amount [(of the liens)] at the time the claim was made and is presently able and willing to, and offers to pay that amount plus interest, plus all of the City’s court costs in the foreclosure action.” According to Gilles, he “never received notice of the liens and did not receive actual notice of the foreclosure” and the amount due was insignificant compared to the value of the property. Gilles concluded that he would suffer a significant forfeiture and the City would reap a windfall in the absence of relief under
¶ 19 2. City’s Memorandum in Opposition
¶ 20 Initially, the City responded that the
¶ 21 The City further argued that Gilles failed to allege facts to support the application of equitable tolling to the limitations period. Specifically, while Gilles asserted that the county offices were “closed for periods of time” due to the COVID-19 pandemic, he failed to specify the duration of the closings or demonstrate that in-person visits were indispensable to obtaining
¶ 22 3. Gilles’s Reply
¶ 23 Gilles replied that, while he filed his
¶ 24 According to Gilles, “[i]n truth, his ability to act was impacted by the results of this specific closure in conjunction with the other effects of COVID shutdowns and other harms such as remote working, which adversely affected [his] ability to timely obtain a title search.” Specifically, at the time his attorneys ordered the title search, on September 3, 2020, “there still remained 59 days of the two year period.” However, Gilles stated, due to COVID-19 closures, the title company was unable to complete the title search until November 2, 2020. Thus, Gilles argued, he was faced with extraordinary barriers sufficient to warrant the application of the equitable tolling doctrine.
¶ 25 4. Trial Court’s Ruling
¶ 26 On March 25, 2021, following argument, the trial court entered an order denying the City’s request to dismiss the
¶ 27 In its oral ruling, the trial court found that the facts established that the delay occasioned by the COVID-19 pandemic meant it took Gilles three months, rather than the typical two weeks, to obtain a title search for the property. The trial court reasoned that this situation “satisfies *** the standard in 1401 for some extraordinary, some extraordinary barrier, an extraordinary barrier and irredeemable lack of information.” The trial court continued, “I think that’s what we have here for this period when, when the title company was not able to do the title search because of the closure of the, the, the county offices.”
¶ 28 The trial court further found that Gilles’s affidavit demonstrated that he did not have actual notice of the underlying lawsuit and that, when he learned in September 2020 that he no longer owned the property, he was diligent in contacting his attorneys, attempting to do a title search, and filing his
¶ 30 The trial court set a briefing schedule on the merits of the
¶ 31 1. City’s Response
¶ 32 The City argued that Gilles was not entitled to relief under
¶ 33 The City also argued that Gilles could not prove due diligence in filing and defending the
¶ 34 2. Gilles’s Reply
¶ 35 Gilles replied that “meritorious defense in equity can be established by showing that the forfeiture is completely out of proportion to the amount claimed by the City, and exceptional circumstances resulted in, if not excused, his failure to receive notice.” Specifically, Gilles stated his “belie[f] that the property is worth between $500,000 and $1 million” and that the amount due the City, including its attorney fees and costs, which Gilles was ready, willing, and able to pay, was only approximately $25,000.3 Moreover, the attempts at personal service occurred “in the middle of the period when his wife was dying of brain cancer, March of 2017 to May of 2018, when he was driving 20+ hours back and forth every weekend, between his home in Colorado Springs, and his job in Montana.”
¶ 36 Regarding due diligence in the underlying proceeding, Gilles argued that he did not have notice of the underlying proceeding and therefore could not have acted diligently. He points out that he paid the real estate taxes on the property for many years and that, “[w]hile a landlord or other property owner may reasonably be expected to occasionally inspect a structure upon property, the same degree of attention would not be expected from an owner of vacant property.” Regarding due diligence in filing the
¶ 37 3. Gilles’s Supplemental Affidavit
¶ 38 In addition to his reply in support of his
¶ 39 Gilles further attested:
“On March 9, 2017, my wife[ ] *** was diagnosed with a malignant brain tumor from which she died on May 28, 2018.
*** Shortly after diagnosis, she accompanied me to and stayed in Montana at the clinic at which I was working for approximately six weeks to receive radiation therapy.
*** Thereafter, in approximately May, 2017, my wife *** moved back to our home *** in Colorado Springs and remained there until her death. During that period of time, which includes the period of time in which Plaintiff attempted to serve notice upon me, I commuted every weekend from my home in Colorado Springs to my work in Montana, round trip travel for which entailed approximately 23 hours and I returned to Colorado Springs on Friday to care for my wife each weekend and returned Sunday afternoon or evening to my employment in Montana.”
¶ 40 Gilles concluded that, “[t]o the best of my knowledge, I never received mail notice addressed to me at my post office box during relevant times herein.”
¶ 41 4. City’s Surreply
¶ 42 The City was granted leave to file a surreply. The surreply was largely devoted to a discussion of the propriety of the service methods used in this case.
¶ 43 5. Trial Court’s Ruling
¶ 44 Following argument on the
¶ 45 In its oral findings, the trial court found, in relevant part, that Gilles established a meritorious defense. Namely, Gilles showed that, “had he participated in the underlying suit, he could have redeemed the property” because he was “ready willing and able to pay the, the mowing costs and other liens that had been placed against the property.”
¶ 46 The trial court also found that Gilles’s lack of diligence in defending the underlying lawsuit was the result of excusable mistake, and not negligence, because “he had no actual notice of the underlying suit” and did not know his property was in foreclosure. The trial court found no evidence that Gilles avoided service, reasoning that there were only three service attempts at Gilles’s home in Colorado—“during the week over about a ten-day period over the holidays and all during work hours” and during a period when Gilles was working in Montana during the week and caring for his wife at a medical facility there on the weekends.
¶ 47 And finally, the trial court found that Gilles established due diligence in filing his
¶ 48 The trial court concluded that the City’s contract with a third party for the sale of the property was a complicating and significant factor but found that Gilles met the requirements of
¶ 49 The City timely appealed.
II. ANALYSIS
¶ 50 ¶ 51 The threshold issue on appeal is whether the common law doctrine of equitable tolling may apply to extend the two-year limitations period in
¶ 52 To place the parties’ arguments in context, we first review the statutory scheme set forth in
A. Section 2-1401
¶ 53 ¶ 54
“Relief from final orders and judgments, after 30 days from the entry thereof, may be had upon petition as provided in this Section. Writs of error coram nobis and coram vobis, bills of review and bills in the nature of bills of review are abolished. All relief heretofore obtainable and the grounds for such relief heretofore available, whether by any of the foregoing remedies or otherwise, shall be available in every case, by proceedings hereunder, regardless of the nature of the order or judgment from which relief is sought or of the proceedings in which it was entered.”
735 ILCS 5/2-1401(a) (West 2020) .
¶ 55 The filing of a
¶ 56 Preliminarily, however, included in
¶ 57 The purpose of the two-year limitations period is “a salutary one—to establish necessary stability and finality in judicial proceedings.” Crowell v. Bilandic, 81 Ill. 2d 422, 427-28 (1980). In Crowell, the plaintiff filed a petition under
¶ 58 In reversing, our supreme court reasoned that, “[e]ven if we were to adopt the generous construction given plaintiff’s petition by the appellate court,” the allegations did not amount to fraudulent concealment. Id. at 428. Thus, the petition was effectively barred by the two-year limitations period. Id. The supreme court’s holding in Crowell was consistent with a litany of prior cases in which it strictly construed the limitations period in
¶ 59 Likewise, in Sidwell v. Sidwell, 127 Ill. App. 3d 169, 173 (1984), the appellate court held that the untimeliness of the
¶ 60 As this court in Fisher v. Rhodes, 22 Ill. App. 3d 978, 981 (1974), explained, the legislature included a two-year limitations period in section 72 and specified legal disability or duress of the person seeking relief and fraudulent concealment of the ground for relief as the “only exceptions” that will toll the limitations period. “[I]t is an established rule regarding statutes of limitations that no exceptions thereto will be implied for if the legislature had intended to except any class of persons from the effect of the statute, it would have done so and courts will not assume such authority or dominion.” Id. Accordingly, notwithstanding hardship from the application of the rule, “the court may construe only the clear words of the statute, and if its scope is to be enlarged, the remedy should be legislative rather than judicial.” Id. at 981-82.
¶ 61 Our supreme court has since maintained the exacting nature of
¶ 62 Parenthetically, we note that our supreme court has recognized that a void judgment is not subject to the limitations period. That is, “when a
¶ 63 It was undisputed that Gilles filed his
B. Equitable Tolling
¶ 64 ¶ 65 “Equitable tolling of a statute of limitations may be appropriate if the defendant has actively misled the plaintiff, or if the plaintiff has been prevented from asserting his or her rights in some extraordinary way, or if the plaintiff has mistakenly asserted his or her rights in the wrong forum.” Clay v. Kuhl, 189 Ill. 2d 603, 614 (2000). Extraordinary barriers that may warrant equitable tolling include legal disability, an irremediable lack of information, or circumstances where the plaintiff could not learn the identity of the proper defendants through the exercise of due diligence. Doe v. Hastert, 2019 IL App (2d) 180250, ¶ 48. “While equitable
¶ 66 Here, the City argues the statutory scheme of
¶ 67 As noted,
¶ 68 Accordingly, principles of statutory construction preclude us from reading in an additional exception for equitable tolling. See In re Michelle J., 209 Ill. 2d 428, 437 (2004) (“We cannot rewrite a statute under the guise of statutory construction or depart from the plain language of a statute by reading into it exceptions, limitations, or conditions not expressed by the legislature.“). Indeed, precluding any exceptions beyond those provided in the statutory scheme of
¶ 69 Regardless of the underlying circumstances, we may not extend
¶ 70 We also observe that two recent unpublished decisions from this court have rejected arguments seeking application of the equitable tolling doctrine to revive an untimely
¶ 71 While neither party cites the case, we note the decision of the Appellate Court, Third District, in Department of Public Aid ex rel. Howard v. Graham, 328 Ill. App. 3d 433 (2002). There, the majority held that,
“[i]n light of these extraordinary circumstances [(where the trial court’s summary judgment order created the appearance that it made a judgment on the issue of paternity and that the only recourse was an appeal)] and for the purposes of this case only, we hold that the statute of limitations shall be equitably tolled from the date of the trial court’s summary judgment order”
for purposes of challenging a paternity acknowledgement through a
¶ 72 Moreover, we point out the doctrine’s ill fit here. Gilles is not a plaintiff seeking to assert an untimely claim in the first instance. Rather, faced with a default judgment entered against him in the underlying proceeding, Gilles filed a collateral attack on the judgment through his
¶ 73 In sum, the doctrine of equitable tolling is inapplicable to toll the two-year limitations period in
III. CONCLUSION
¶ 74 ¶ 75 For the reasons stated, we reverse the order of the circuit court of Winnebago County granting the
¶ 76 Reversed and remanded.
¶ 77 ¶ 78 Even if the doctrine of equitable tolling were a recognized reason to extend the deadline for filing a
¶ 79 Even overlooking the vague affidavit, however, Gilles would not be entitled to any relief. Gilles asserted that he knew already “on or about September 2, 2020,” that the City was listed as the owner of the property rather than him. At this point, he had ample notice that there was a problem with his ownership of the property. Based on that notice, he should have immediately contacted the City or filed his
¶ 80 As noted earlier, equitable tolling is warranted only when there is an extraordinary barrier that prevents the plaintiff from timely filing his action. Doe v. Hastert, 2019 IL App (2d) 180250, ¶ 48. Gilles’s decision to not file his petition until after he received confirmation that he no longer owned the property does not constitute such an extraordinary barrier.
¶ 81 Gilles’s loss of his property (which he values at up to $1 million) due to his failure to pay special assessment liens of less than $12,000 is indeed harsh. However, all statute of limitations provisions by their very nature are harsh. Newell v. Newell, 406 Ill. App. 3d 1046, 1054, (2011) (Schmidt, J., dissenting) (“the enforcement of a statute of limitations, by its very nature, always has harsh consequences: it terminates the prosecution of a claim regardless of the underlying merits” (emphasis omitted)). Our legislature has ultimately determined, though, that there must be finality of judgments and injured parties cannot have an indefinite time to bring their actions. Sundance Homes, Inc. v. County of Du Page, 195 Ill. 2d 257, 266 (2001) (“Statutes of limitation and repose represent society’s recognition that predictability and finality are desirable, indeed indispensable, elements of the orderly administration of justice [citation] that must be balanced against the right of every citizen to seek redress for a legally recognized wrong.“). As Gilles had the ability to ameliorate the harshness of the result of this case by timely filing his