OneWest Bank v. Topor (IL)

 

Summary: In a mortgage foreclosure case, a motion to quash for invalid service made more than 30 days after the court’s final order confirming the sale is in substance a Section 2-1401 petition, even if the motion failed to specifically invoke the Section.

 

OneWest Bank, FSB v. Topor, 2013 Ill. App. (1st) 120010.

 

Go to full opinion.

 

Facts: The Plaintiff, OneWest Bank (Bank), filed a mortgage foreclosure case against the Defendant homeowners, the Topors, on March 30, 2010. Subsequently, the Bank sent a notice of motion to default to the Topors three separate times. Without any reaction from the Topors thereafter, on March 10, 2011, the circuit court of Cook County entered an order confirming the sale of the Topors' home and directed the sheriff to evict the Topors. Almost three months later, on July 1, 2011, the Topors filed a motion to quash for invalid service of process. In making the motion to quash, the Topors mailed the notice to the Bank’s counsel, instead of directly serving the Bank itself. In response, the Bank raised two objections, one on a jurisdictional issue and the other on a substantive issue. As to the jurisdictional issue, the Bank alleged that the Topors had to serve the notice to the Bank itself, not the Bank’s counsel. As to the substantive issue, the Bank asserted that the Topors’ affidavits accompanying the notice were insufficient to warrant an evidentiary hearing.

The circuit court denied the Topors’ motion to quash for invalid service and instead ordered the Topors to file a Section 2-1401 petition, stating that a Section 2-1401 petition was "the proper procedural vehicle to bring a motion to quash 30 days after final judgment." The Topors appealed.

 

Holding: Dismissed. In Sarkissian v. Chicago Board of Education, the Illinois Supreme Court found that a Section 2-1401 petition is the only procedural vehicle available for litigants to bring an attack on void judgments for invalid service at any time, stating that Section 2-1401(f) "expressly abolishes all other common law means of attacking void judgments." Sarkissian, 201 Ill. 2d 95, 104–05 (2002).  Additionally, a Section 2-1401 petition challenging invalid service need not allege either a meritorious defense or due diligence. Id. at 103–04.

In this case, the appellate court construed the motion to quash for invalid service as a Section 2-1401 petition, even though the motion failed to specifically invoke the Section. However, because the circuit court did not rule on the merits of the first motion, the appellate court found that the circuit court did not deny the motion to quash on merits, but instead struck it and ordered the filing of a second Section 2-1401 petition. Therefore, there was no final, appealable order on a Section 2-1401 petition, and the appellate court lacked jurisdiction and must dismiss the appeal.

In making a Section 2-1401 petition, moreover, the Defendants must meet a formal service requirement under Illinois Supreme Court Rules 105–06. 735 ILCS 5/2-1401(b) (West 2010); Ill. S. Ct. R. 106 (eff. Aug. 1, 1985); Ill. S. Ct. R. 105(b) (eff. Jan. 1, 1989). According to the Supreme Court Rules, the Defendants must give notice to the Plaintiff itself either by summons, prepaid registered mail, or publication. Ill. S. Ct. R. 105(b) (eff. Jan. 1, 1989). In this case, the Topors served the motion to quash on the Bank’s attorney by mail. The notice, therefore, was invalid, and the circuit court had no jurisdiction to entertain the motion. Thus, the Appellate Court lacks jurisdiction to entertain the appeal.

 

Opinion Year: 
2013
Jurisdiction: 
Illinois
By: ATG Underwriting Department | Posted on: Wed, 10/02/2013 - 2:28pm