Aurora Loan Servs., LLC v. Kmiecik

• Decision Date: 07 June 2013
• Docket Number: Docket No. 1–12–1700.
• Parties: AURORA LOAN SERVICES, LLC, Plaintiff–Appellee, v. Jozef KMIECIK, Defendant–Appellant (Elzbieta Kmiecik and Unknown Owners and Nonrecord Claimants, Defendants.)
• Court: United States Appellate Court of Illinois

2013 IL App (1st) 121700

992 N.E.2d 125

372 Ill.Dec. 586

AURORA LOAN SERVICES, LLC, Plaintiff–Appellee,

v.Jozef KMIECIK, Defendant–Appellant (Elzbieta Kmiecik and Unknown Owners and Nonrecord Claimants, Defendants.)

Docket No. 1–12–1700.

Appellate Court of Illinois, First District, Fifth Division.

June 7, 2013.

Stephen Richek, of Chicago, for appellant.

Harry N. Arger and Brett J. Natarellli, both of Dykema Gossett PLLC, of Chicago, for appellee.

OPINION

Presiding Justice McBRIDE delivered the judgment of the court, with opinion.

[372 Ill.Dec. 587]¶ 1 Plaintiff, Aurora Loan Services, LLC (Aurora), filed a mortgage foreclosure complaint against Jozef Kmiecik (defendant) and Elzbieta Kmiecik ¹ in January 2010. Defendant filed an answer to Aurora's complaint which was untimely and, in October 2010, the trial court entered an order of default and judgment of foreclosure against defendant. After the court entered an order approving the sale and distribution of the property at issue, defendant filed a combined motion to quash and motion to vacate all orders pursuant to section 2–1301 of the Code of Civil Procedure (Code) (735 ILCS 5/2–1301 (West 2010)). The trial court denied both motions. On appeal, defendant contends that: (1) the trial court erred in denying the motion to quash because the affidavit of the special process server showed the individual served was between the ages of 26 and 30 years while defendant is 61 years old; and (2) the trial court's judgments are void because Aurora did not register as a collection agency with the state as required by the Collection Agency Act (Act) ( 225 ILCS 425/1 et seq. (West 2010)). We affirm.

¶ 2 On January 8, 2010, Aurora filed its complaint to foreclose mortgage against defendant and Elzbieta Kmiecik, pursuant to the Illinois Mortgage Foreclosure Law (Foreclosure Law) (735 ILCS 5/15–1101 et seq. (West 2010)). The complaint alleged as follows: on March 21, 2007, defendant and Elzbieta, as mortgagors, executed a mortgage in the amount of $303,000 to Mortgage Electronic Registration Systems, Inc. (MERS), “as nominee for HLB Mortgage,” for the property commonly known as 7537 Mansfield Avenue in Burbank, Illinois (Property). Aurora claimed it was the agent for the holder of the mortgage and note and that defendant and Elzbieta were in default for not making the monthly payments beginning in September 2009 through the present. Aurora requested that a judgment of foreclosure and sale be entered against defendant and Elzbieta.

¶ 3 Copies of the mortgage and note were attached to the complaint. The mortgage defined defendant and Elzbieta, “husband and wife as joint tenants,” as the borrowers, HLB Mortgage as the lender, and MERS as the mortgagee “acting solely as a nominee for Lender and Lender's successors and assigns.” Section 20 of the mortgage provided that the “Note or partial interest in the Note (together with the this Security Instrument) can be sold one or more times without prior notice to Borrower.” Each page of the mortgage was initialed by defendant and Elzbieta, and the mortgage and note were both signed by defendant and Elzbieta. The mortgage was notarized on March 21, 2007.

¶ 4 According to the affidavit of a special process server, defendant was served with a summons and a copy of the complaint on January 12, 2010, and the approximate age of the individual with whom a copy of the process was left was 26 to 30 years old.

¶ 5 On July 23, 2010, Aurora filed its first motion for default. The July motion stated that defendant had been personally served on January 12, 2010, and that a period of 60 days had expired since the date of service with no motion or answer on file. The motion was set for a hearing on August 19, 2010, in courtroom 2801 of the Daley Center at 8:45 a.m.

¶ 6 On August 13, 2010, Aurora filed a second motion requesting an order of default against defendant and Elzbieta, along with a motion for a judgment of foreclosure and sale, and a motion to appoint a selling officer.

¶ 7 On August 19, 2010, when the motion for default was set to be heard, defendant appeared before the trial court in courtroom 2801 and stated that he was trying to modify the loan. The court entered a written order allowing defendant an extension of time to answer Aurora's complaint until September 16, 2010, and set a hearing on Aurora's motion for default for September 22, 2010 in courtroom 2801 at 8:45 a.m. In the order, the court also stated that if defendant did not “file an answer by [September 16, 2010], present a valid defense, or settle the case with the lender before the hearing date, it is very likely that the court will enter an order of foreclosure and sale on the hearing date.”

[372 Ill.Dec. 589]¶ 8 On September 22, 2010, defendant again appeared in courtroom 2801 before the same trial judge who granted the previous continuance. The court granted defendant another continuance and gave him an additional 14 days to answer or otherwise plead. The answer was then due on October 6, 2010. The case, however, was continued for further status until October 13, 2010, in courtroom 2801 at 8:45 a.m., and the motion for default and judgment was continued generally to October 13.

¶ 9 On October 13, 2010, at the 8:45 a.m. status hearing in courtroom 2801, the same judge who had presided over the two previous court hearings entered a default judgment against defendant after a prove-up and defendant's failure to appear and answer the complaint. On the same day, at 3:30 p.m., the defendant filed a pro se general appearance and a verified answer to the complaint to foreclose mortgage in the Circuit court clerk's office, admitting he was the mortgagor of the mortgage on the Property for $303,000. However, defendant alleged he had insufficient information with which to admit or deny that Aurora was the agent for the holder of the mortgage and note or that he was in default on the mortgage.

¶ 10 Approximately nine months later, a judicial sale of the Property took place on June 9, 2011, and Aurora was the highest bidder. Aurora filed a motion for an order approving the report of sale and distribution and possession and, on July 13, 2011, the trial court entered an order approving the report of sale and distribution, confirming the sale, and permitting Aurora's possession of the Property.

¶ 11 On August 12, 2011, approximately one year after the first motion for default was filed, defendant, represented by an attorney, filed a combined motion to quash service and motion to vacate pursuant to section 2–1301 of the Code. In the motion, defendant argued that service was improper because the affidavit of the special process server stated the individual served was a male between the ages of 26 and 30 years while defendant was 61 years old. Defendant also argued that the trial court's judgments were void because Aurora was not a registered debt collector as required by the Act.

¶ 12 On September 9, 2011, Aurora filed a response to the motion, arguing in pertinent part that defendant had waived any objection he had to the court exercising personal jurisdiction over him when he filed a verified answer without objecting to jurisdiction, that the notes of the special process server showed the individual served was approximately 50 years old and the information was “erroneously transcribed” onto the affidavit, that defendant's motion to quash was untimely pursuant to section 15–1505.6 of the Code (735 ILCS 5/15–1505.6 (West Supp.2011)), and that Aurora was exempt from the requirements of the Act. Attached to the response was a field sheet from the special process server, in which the special process server had handwritten that the individual served was approximately 50 years old.

¶ 13 On September 29, 2011, the trial court denied defendant's motion to quash and granted him leave to amend the motion to vacate. In his amended motion to vacate, defendant restated his prior motion and also argued that “if the Motion to Quash is denied because defendant filed an answer, then the Judgement should be Vacated as Plaintiff is seeking to utilize relief based on a filing that served no purpose.” Aurora responded that although the “answer was filed late, the waiver of jurisdictional objections still occurred when the answer was filed, as there is no exception to the statute.”

¶ 14 On January 18, 2012, with counsel for both parties present, after hearing oral argument and being “fully advised,” the trial court denied the amended motion to vacate.

¶ 15 On appeal, defendant first contends that the trial court erred in denying his motion to quash service because, according to the affidavit of the special process server, the individual served was between the ages of 26 and 30, and defendant was 61 years old. Where the trial court's denial of a motion to quash service is based on documentary evidence only, our review on appeal is de novo. Central Mortgage Co. v. Kamarauli, 2012 IL App (1st) 112353, ¶ 26, 366 Ill.Dec. 652, 980 N.E.2d 745.

¶ 16 Aurora argues that defendant waived this argument and submitted to the personal jurisdiction of the court when he filed his verified answer. Defendant agrees that “the filing of an Answer submits” a party to the court's jurisdiction; however, he claims that because Aurora is “seeking to use the filed answer” to show defendant waived any objection to personal jurisdiction, “the default should be vacated because a default cannot exist when an answer is filed.”

¶ 17 A party may object to the court's jurisdiction over his person by filing a motion to quash service of process and arguing either that the party is not “amenable to process” of an Illinois court or that process was insufficient. 735 ILCS 5/2–301(a) (West 2010). However:

“If the objecting party files a responsive pleading or a motion (other than a motion for an extension of time to answer or otherwise appear) prior to the filing of a motion in compliance with subsection (a), that party waives all...