BAC Home Loans Servicing, LP v. Mitchell

• Decision Date: 03 June 2013
• Docket Number: No. 1-12-1713,1-12-1713
• Citation: 2013 IL App (1st) 121713
• Parties: BAC HOME LOANS SERVICING, LP, f/k/a COUNTRYWIDE HOME LOANS SERVICING, LP, Plaintiff-Appellee, v. KIM E. MITCHELL, Defendant-Appellant, (AMERIFIRST HOME IMPROVEMENT FINANCE FINANCE CO.; UNKNOWN HEIRS and LEGATEES OF KIM E. MITCHELL, IF ANY; UNKNOWN OWNERS and NONRECORD CLAIMANTS, Defendants.)
• Court: United States Appellate Court of Illinois

2013 IL App (1st) 121713

BAC HOME LOANS SERVICING, LP, f/k/a COUNTRYWIDE HOME LOANS SERVICING, LP, Plaintiff-Appellee,

v. KIM E. MITCHELL, Defendant-Appellant,(AMERIFIRST HOME IMPROVEMENT FINANCE FINANCE CO.; UNKNOWN HEIRS and LEGATEESOF KIM E. MITCHELL, IF ANY; UNKNOWN OWNERS and NONRECORD CLAIMANTS, Defendants.)

No. 1-12-1713

APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT FIRST DIVISION

June 3, 2013

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the

Circuit Court of

Cook County.

No. 2009 CH 43660

Honorable

Laura C. Liu,

Judge Presiding.

JUSTICE ROCHFORD delivered the judgment of the court.

Presiding Justice Hoffman and Justice Delort concurred in the judgment.

ORDER

¶ 1 Held: After defendant's residence was foreclosed on and a judicial sale held, defendant moved to quash the order approving the report of sale based on the circuit court lacking personal jurisdiction over her. We affirmed the denial of defendant's motion to quash because defendant voluntarily submitted to the court's jurisdiction and waived any objection by failing to comply with the requirements of section 2-301 of the Code of Civil Procedureand section 15-1505.6 of the Illinois Mortgage Foreclosure Law for challenging the court's jurisdiction over her person.

¶ 2 This appeal arises from a mortgage foreclosure action in which the circuit court entered an order of default against defendant, Kim E. Mitchell, and a judgment of foreclosure and sale, and later, an order approving report of sale and distribution. Defendant moved to vacate the order approving report of sale asserting several grounds, but withdrew the motion upon its presentation. Defendant then filed a motion to quash the order approving report of sale, which was stricken without prejudice by the circuit court. Defendant then filed another motion to quash the order approving report of sale, which the circuit court denied on May 24, 2012. Defendant appeals the May 24, 2012, order. We affirm.

¶ 3 Defendant was the owner of a residence located at 9648 South Perry Avenue in Chicago. On March 9, 2005, defendant executed a mortgage and note with Countrywide Home Loans, Inc., pursuant to which defendant agreed to pay $75,400. On November 15, 2009, plaintiff, BAC Home Loans Servicing, LP, f/k/a Countrywide Home Loans Servicing, LP, filed a complaint to foreclose the mortgage.

¶ 4 The affidavit of the special process server stated that defendant was served on November 14, 2009, via substitute service on defendant through Michelle Foreman. The affidavit stated that Michelle Foreman is defendant's daughter and resides at 9648 South Perry Avenue in Chicago.

¶ 5 On April 9, 2010, plaintiff filed a motion for an order of default against defendant. The motion stated that 60 days had expired since the date of service, and that no motion or answer was filed by defendant. On June 3, 2010, plaintiff again filed a motion for order of default against defendant, as well as a motion for a judgment for foreclosure and sale and a motion for theappointment of a selling officer. The record indicates notice for the June 3, 2010, motions was mailed to defendant at 9648 South Perry Avenue on May 21, 2010.

¶ 6 On June 9, 2010, the circuit court entered an order of default against defendant. On that same day, the court also entered a judgment for foreclosure and sale and an order to appoint a selling officer.

¶ 7 The record indicates notice of the judicial sale was mailed to defendant at 9648 South Perry Avenue on August 20, 2010. On September 13, 2010, a judicial sale was held.

¶ 8 On August 2, 2011, plaintiff filed a motion for an order approving the selling officer's report of sale and distribution and for possession. The record indicates that on August 30, 2011, defendant was mailed notice that on September 14, 2011, plaintiff would move the court for entry of an order approving the foreclosure report of sale and distribution and order for possession. On September 14, 2011, the circuit court entered the approval order.

¶ 9 On October 12, 2011, counsel for defendant entered an appearance in this case and filed a motion to vacate the September 14, 2011, order approving the report of sale and distribution and for possession. Defendant argued, "[t]o the best of her knowledge," she was never served with summons in this case, never received notice of the motion for default, was told by plaintiff that her loan modification had been completed and approved, and never received notice of the September 14, 2011, order. Accordingly, defendant argued, it was in "the interest of justice" that the court vacate the September 14, 2011, order. No other relief was requested. The motion to vacate did not specify it was brought pursuant to any particular section of the Code of Civil Procedure.

¶ 10 On November 16, 2011, the motion to vacate was withdrawn by defendant.

¶ 11 On November 18, 2011, defendant filed a "Motion to Quash the [September 14, 2011,] Order Approving Foreclosure Report of Sale and Distribution and Order for Possession and Deed or, in the Alternative, Petition for Relief from Judgment Pursuant to 735 ILCS 5/2-1401 and 735 [ILCS] 5/15-1508." This motion essentially repeated the allegations of the October 12, 2011, motion to vacate.

¶ 12 On December 8, 2011, the motion to quash was "stricken without prejudice."

¶ 13 On December 9, 2011, defendant refiled her "Motion to Quash the [September 14, 2011] Order Approving Foreclosure Report of Sale and Distribution and Order for Possession and Deed or, in the Alternative, Petition for Relief from Judgment Pursuant to 735 ILCS 5/2-1401 and 735 [ILCS] 5/15-1508." The motion to quash again repeated the allegations of the October 12, 2011, motion to vacate regarding her failure to receive summons in this case.

¶ 14 On April 10, 2012, plaintiff filed its response to the motion to quash. The response stated that defendant was served via substitute service on November 14, 2009; plaintiff attached the affidavit of service as an exhibit. The affidavit of service stated that substitute service was made on defendant by:

"[L]eaving a copy of this process at his/her usual place of abode with: Michelle Foreman (Relationship) Daughter, a person residing therein who is of the age of 13 years or upwards and informed that person of the contents thereof and that further mailed a copy of this process in a sealed envelope with postage paid addressed to the defendant at his/her usual place of abode on 11-17-09."

¶ 15 Defendant filed a reply in support of her motion to quash, stating that the substitute service was defective because she does not have a daughter; her only child is a son named William Mitchell.

Defendant further stated she does not know any person named Michelle Foreman. In support, defendant attached an affidavit in which she averred that she does not have a daughter, that her only child is a son named William Mitchell, and she does not know any person by the name of Michelle Foreman.

¶ 16 On May 24, 2012, the circuit court entered an order denying defendant's motion to quash, ruling that defendant voluntarily submitted to the court's jurisdiction and waived any objection when she filed her initial motion to vacate on October 12, 2011. The order also stated that defendant's alternative section 2-1401 and 15-1508 petitions were denied "as no arguments were made to provide the court with grounds to vacate the judgment or order approving sale." Defendant appeals, contending the circuit court erred in denying her December 9, 2011, motion to quash and her section 2-1401 petition; defendant makes no specific arguments regarding the circuit court's denial of her section 15-1508 petition and accordingly that issue is waived. See Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013).

¶ 17 Initially, plaintiff argues we lack appellate jurisdiction to entertain defendant's appeal. Illinois Supreme Court Rule 303(a)(1) provides that a notice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from, or, if a timely post-judgment motion directed against the judgment is filed, then within 30 days after the entry of the order disposing of the last pending post-judgment motion. Ill. S. Ct. R. 303(a)(1) (eff. June 4, 2008). "A motion not filed within 30 days after the judgment (or any extension allowed) is not 'timely' within the meaning of that word as used in Rule 303(a); and an untimely motion, or one not directed against the judgment, neither stays the judgment nor extends the time for appeal." Searsv. Sears, 85 Ill. 2d 253, 259 (1981).

¶ 18 Our supreme court has held:

"A second post-judgment motion (at least if filed more than 30 days after judgment) is not authorized by either the Civil Practice Act or the rules of this court and must be denied. [Citation.] There is no provision in the Civil Practice Act or the supreme court rules which permits a losing litigant to return to the trial court indefinitely, hoping for a change of heart or a more sympathetic judge. Permitting successive post-judgment motions would tend to prolong the life of a lawsuit-at a time when the efficient administration of justice demands a reduction in the number of cases pending in trial courts-and would lend itself to harassment. There must be finality, a time when the case in the trial court is really over and the loser must appeal or give up. Successive post-judgment motions interfere with that policy. And justice is not served by permitting the losing party to string out his attack on a judgment over a period of months, one argument at a time, or to make the first motion a rehearsal for the real thing the next month. In the interests of finality, and of certainty and ease of administration in determining when the time for appeal begins to run, we [hold] that successive post-judgment motions are impermissible when the second motion is filed more

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