OCWEN LOAN SERVICING, LLC, Plaintiff-Appellee, v. GUADALUPE DeGOMEZ, AUGUSTIN OLEA, TERESA TRUJILLO, ERIC GOMEZ, UNKNOWN OWNERS, and NONRECORD CLAIMANTS, Defendants (Guadalupe DeGomez and Teresa Trujillo, Defendants-Appellants).
No. 2-19-0774
Appellate Court of Illinois, Second District
December 30, 2020
2020 IL App (2d) 190774
JUSTICE McLAREN delivered the judgment of the court, with opinion. Presiding Justice Bridges and Justice Jorgensen concurred in the judgment and opinion.
Decision Under Review: Appeal from the Circuit Court of Du Page County, No. 2010-CH 1529; the Hon. Bonnie M. Wheaton, Judge, presiding. Judgment: Affirmed.
¶ 1 In March 2010, plaintiff, Ocwen Loan Servicing, LLC (Ocwen), filed a foreclosure action against defendants, Guadalupe DeGomez and Teresa Trujillo, concerning a property in Wood Dale. Defendants were served. In June 2010, the court entered a default judgment of foreclosure and the property was sold through a sheriff‘s sale. The court confirmed the report of sale. In June 2011, Diana Bahena and Salvador Bahena (the purchasers) purchased the property.
¶ 2 In September 2018, more than eight years after the filing of the foreclosure action, defendants filed a petition for relief from void judgment, seeking to vacate the judgment of foreclosure and sale, pursuant to
I. BACKGROUND
¶ 4 On March 17, 2010, Ocwen filed a foreclosure complaint against defendants. The property was commonly known as 407 Itasca Road, Wood Dale, Illinois, 60191. Ocwen named defendants in the complaint as owners and mortgagors of the property. Ocwen served its complaint through a summons bearing a caption reading in its entirety: Ocwen Loan Servicing, LLC vs. Guadalupe DeGomez, et al. Attached to the summons was a page stating, in relevant part:
PLEASE SERVE THE FOLLOWING DEFENDANTS AT THE FOLLOWING ADDRESSES:
Guadalupe DeGomez; 407 Itasca Road; Wood Dale, IL 60191—DU
Teresa Trujillo; 407 Itasca Road; Wood Dale, IL 60191—DU
Teresa Trujillo; 13 School St; Addison, IL 60101—DU
¶ 5 On March 21 and March 30, 2010, Trujillo and DeGomez, respectively, were served with the summons and the complaint. On June 29, 2010, the trial court entered a default judgment against defendants for, inter alia, failure to appear or plead and entered a judgment of foreclosure. The property was sold at a judicial sale to Federal Home Loan Corporation (Federal Home). On October 22, 2010, the court entered an order confirming the judicial sale. On June 6, 2011, Federal Home executed and delivered a special warranty deed transferring title to the property to the purchasers. On the same day, a mortgage from the purchasers to Mortgage Electronic Registration Systems (MERS) was recorded. On February 27, 2013, a
¶ 6 On September 27, 2018, defendants filed their petition to vacate the judgment of foreclosure and sale, pursuant to
¶ 7 Ocwen filed a combined motion to dismiss pursuant to
¶ 8 MERS also filed a combined motion to dismiss pursuant to a
¶ 9 On May 30, 2019, pursuant to a settlement, the trial court entered an order dismissing defendants’ petition with prejudice as to the purchasers and MERS and quieting title to the property in the purchasers subject only to MERS‘s mortgage lien. The trial court then ordered briefing on the issue of mootness.
¶ 10 Defendants filed their memorandum of law regarding mootness. Ocwen filed its response arguing that defendants’ petition was moot and that it was barred by laches. Defendants replied, noting that Ocwen inappropriately raised the affirmative defense of laches for the first time in its response.
¶ 11 On August 8, 2019, during the hearing on defendants’ petition, defendants stated that the only relief they sought against Ocwen was restitution in the form of money damages. The court noted that Ocwen raised the defense of laches in its motion to dismiss and invited defendants to motion up an evidentiary hearing regarding why it took ten years for them to assert their
¶ 12 The trial court then dismissed defendants’ petition with prejudice as to Ocwen. The court stated that, due to defendants’ settlement with the purchasers, defendants’ petition was moot as to Ocwen regarding the following relief sought by defendants: possession, use, and occupancy of the property. The court also found that laches barred defendants’ remaining requests for relief. The court stated that its order was final with no just reason to delay appeal. On September 6, 2019, defendants filed a timely notice of appeal.
II. ANALYSIS
A. Standard of Review
¶ 15 Defendants appeal the dismissal of their petition. For the following reasons, we conclude that dismissal was proper under
B. Dismissal of Petition
¶ 17 Defendants argue that the trial court lacked personal jurisdiction over them in the foreclosure action and erred by dismissing their petition to vacate. Defendants contend that the summons violated Illinois Supreme Court rules because it did not name Trujillo on its face and did not direct the summons to defendants. Therefore, according to defendants, the resulting judgments were void, and the trial court erred by dismissing their petition because laches does not apply to petitions to vacate void judgments.
¶ 18
¶ 19 Here, as to DeGomez, defendants argue that the summons was invalid because following the line To each Defendant: she was not named. The record clearly shows that the summons was proper as to DeGomez.
¶ 20 A summons issued in violation of the statute and the rules is void and results in a lack of personal jurisdiction over the defendant. Id. ¶ 14. However, the purpose of a summons is to notify a party that an action has been commenced against him. In re Application of the County Treasurer & ex officio County Collector, 307 Ill. App. 3d 350, 355 (1999). In determining whether a summons was sufficient to provide the opposing party with notice of
¶ 21 To determine whether the alleged technical defects in the summons were so severe as to preclude the court from obtaining personal jurisdiction over DeGomez, we must place substance over form and ask whether the summons adequately notified DeGomez that an action had been commenced against her. MI Management, LLC v. Proteus Holdings, LLC, 2018 IL App (1st) 160972, ¶ 54. We determine that the summons served that function. At the outset, we note that defendants have not explained how any of the alleged defects frustrated her ability to understand that Ocwen had instituted foreclosure proceedings against her or what DeGomez needed to do to prepare and defend herself. It is difficult to imagine how the caption on the summons, stating OCWEN LOAN SERVICING, LLC, vs. GUADALUPE DEGOMEZ, ET AL, could have possibly prevented DeGomez from understanding the meaning or significance of the summons: that Ocwen was the plaintiff and that DeGomez was a defendant. Further, we cannot determine that the alleged technical deficiency regarding the absence of DeGomez‘s name following To Defendant: defeated personal jurisdiction over her. There were only two names listed on the summons, and DeGomez would have known if she were a defendant. Thus, the alleged defect in the summons did not deprive the court of personal jurisdiction over DeGomez. Accordingly, the trial court properly dismissed defendants’ petition regarding DeGomez.
¶ 22 We now turn our attention to whether the summons was proper as to Trujillo. The record clearly shows that the summons was improper as to Trujillo. The summons failed to name Trujillo on its face and, thus, under the authority cited above, was no summons at all. See Ohio Millers Mutual Insurance Co., 367 Ill. at 56; see also Arch Bay Holdings, 2015 IL App (2d) 141117, ¶ 14. However, this is not cause for reversal.
¶ 23 Although the trial court did not rely on laches in dismissing the claim for possession, use, and occupancy, we may affirm a dismissal on any basis in the record regardless of the basis relied upon by the trial court. See Wofford v. Tracy, 2015 IL App (2d) 141220, ¶ 27. For the following reasons, we hold that laches bars the claim for possession, use, and occupancy (infra ¶¶ 24-33) and that the claim for restitution is not cognizable in a
¶ 24 Defendants argue that laches does not apply because a void judgment may be attacked at any time. Ocwen argues that laches applies to defendants’ petition seeking relief from an alleged void judgment. After reviewing the parties’ arguments and the record, we conclude that laches was a proper basis of dismissal as to Trujillo and an additional basis as to DeGomez.
¶ 25 Laches is an affirmative defense that is equitable and requires the party raising it to show that there was an unreasonable delay in bringing an action and that the delay caused prejudice. BankUnited, National Ass‘n v. Giusti, 2020 IL App (2d) 190522, ¶ 39. We acknowledge that void judgments can be attacked at any time and that
¶ 26 In Kusmierz, 2020 IL App (2d) 190521, ¶ 33, we held that laches barred the defendants’
¶ 27 We are not the first court to determine that laches may be applied, even where the issue concerns defective service and allegedly void orders. See, e.g., Slatin‘s Properties v. Hassler, 53 Ill. 2d 325, 329-30 (1973) (noting that the defense of laches is dependent upon the facts of each case and [w]hen the facts indicate that it would be inequitable to allow a party to assert title, [l]aches will bar this right even within the statutory period of limitation); In re Jamari R., 2017 IL App (1st) 160850, ¶ 55 ( Illinois cases recognize that even if service of process is defective[,] an attack on a decree may be barred by laches. [Citation.] It is basic to the laches doctrine that a complainant may be barred when, after ascertaining the facts, he [or she] fails promptly to seek redress. (quoting Rodriguez, 57 Ill. App. 3d at 361-62)); La Salle National Bank v. Dubin Residential Communities Corp., 337 Ill. App. 3d 345, 350-51 (2003) ( Laches is a defense that is asserted against a party who has knowingly slept upon his [or her] rights and acquiesced for a great length of time, and its existence depends upon whether, under all the circumstances of a particular case, a party is chargeable with want of due diligence and failing to institute proceedings before he or she did; moreover, [w]hether the defense of laches is available is to be determined upon the facts and circumstances of each case); Eckberg, 182 Ill. App. 3d at 131 ( Illinois courts have applied this [laches] doctrine to bar claims that a decree is void for defective service of process despite contrary arguments that such a jurisdictional claim may be brought at any time.); Miller v. Bloomberg, 60 Ill. App. 3d 362, 365 (1978) (noting that a void decree may be attacked at any time, although the equitable defense of laches may be interposed). Considering the foregoing precedent, defendants’ position that under no circumstances may laches apply to this case is simply not persuasive.
¶ 28 We also reject defendants’ contention that laches may bar a challenge to an alleged void judgment only where special concerns were at issue. Defendants cite Pyle v. Ferrell, 12 Ill. 2d 547 (1958) (noting that laches barred a claim regarding mineral and oil property rights), and Jamari R., 2017 IL App (1st) 160850 (noting that laches barred a claim alleging a void order due to defective service related to an adoption), to support their argument. However, the cases cited by defendants do not limit the application of laches to any particular set of facts. Further, despite arguments that a claim attacking a void judgment may be brought at any time, Illinois courts have applied laches to bar such claims without language limiting its application to special concerns. See, e.g., James, 21 Ill. 2d at 383; Rodriguez, 57 Ill. App. 3d at 361; Miller, 106 Ill. App. 3d at 1030.
¶ 30 Here, Ocwen argues that both elements of laches are satisfied. We agree. Defendants do not argue that they were not served or had no knowledge of the foreclosure action. Indeed, it is undisputed that defendants were served with the complaint and summons on March 30 and March 31, 2010. Although the summons failed to name Trujillo on its face, defendants did nothing about the partially defective summons until filing their
¶ 31 In addition, defendants seek against Ocwen restitution and profits from the sale of the property. However, defendants were served with the complaint and summons notifying them that their interest in the property was in jeopardy more than eight years prior to filing their
¶ 32 Defendants argue that laches cannot apply because the purchasers and Ocwen have unclean hands. The doctrine of unclean hands is an equitable doctrine that precludes a party from taking advantage of its own wrong. Jameson Real Estate, LLC v. Ahmed, 2018 IL App (1st) 171534, ¶ 83. The doctrine applies only when the party‘s misconduct rises to a level of fraud or bad faith. Id. To determine whether a party acted with unclean hands, the court must look to the intent of that party. Thompson Learning, Inc. v. Olympia Properties, LLC, 365 Ill. App. 3d 621, 634 (2006).
¶ 33 Here, defendants contend that Ocwen profited from its representations that the underlying foreclosure had been completed in accordance with all statutory mandates. However, defendants do not establish or even contend that Ocwen acted with knowledge that the
¶ 34 We also note that defendants’ petition‘s demand for money damages in the form of restitution and rent is inappropriate.
¶ 35 For the foregoing reasons, the judgment of the trial court is affirmed.
III. CONCLUSION
¶ 37 The judgment of the circuit court of Du Page County is affirmed.
¶ 38 Affirmed.