Bozek v. Bank of Am., N.A.

Decision Date22 September 2021
Docket Number1-19-1978
Citation2021 IL App (1st) 191978,191 N.E.3d 709,455 Ill.Dec. 402
Parties Josef BOZEK and Eva Bozek, Plaintiffs-Appellants, v. BANK OF AMERICA, N.A.; PNC Bank, N.A., d/b/a PNC Mortgage as Agent for Bank of America; McCalla Raymer Leibert Pierce, LLC, f/k/a Pierce & Associates, P.C.; Judicial Sales Corporation; Anna M. Loftus, as a Circuit Judge of Cook County; Anthony C. Swanagan, as a Circuit Judge of Cook County; Thomas J. Dart, as the Sheriff of Cook County; and John Does 1-20, Defendants-Appellees.
CourtUnited States Appellate Court of Illinois

Josef Bozek and Eva Bozek, both of Hinsdale, appellants pro se.

Natalie Burris and Colleen Cavanagh, of Winston & Strawn LLP, of Chicago, for appellee Bank of America, N.A.

Brian R. Merfeld, of McCalla Raymer Pierce, LLC, of Chicago, for appellee McCalla Raymer Leibert Pierce, LLC.

Kimberly M. Foxx, State's Attorney, of Chicago (Cathy McNeil Stein, Paul A. Castiglione, and Ryan Gillespie, Assistant State's Attorneys, of counsel), for appellee Thomas J. Dart.

Kwame Raoul, Attorney General, of Chicago (Jane Elinor Notz, Solicitor General, and Mary C. LaBrec, Assistant Attorney General, of counsel), for appellees the Hon. Anna Loftus and the Hon. Anthony C. Swanagan.

No brief filed for other appellees.

JUSTICE ELLIS delivered the judgment of the court, with opinion.

¶ 1 What began as a rather straightforward mortgage foreclosure case has morphed into a sprawling civil lawsuit involving a national bank, the sheriff of Cook County, two circuit court judges, and nearly everyone else involved with the foreclosure and attempted eviction of the former homeowners from the property.

¶ 2 In October 2015, Bank of America, N.A. (BoA), obtained summary judgment in a foreclosure lawsuit it had filed against Josef and Eva Bozek, the plaintiffs here. The Bozeks’ property was sold at a judicial sale, and an order confirming the sale was entered in November 2016. A lawsuit for forcible entry and detainer followed to evict the Bozeks from the property, which no longer belonged to them. The court in that action entered an order of possession against the Bozeks, and eviction proceedings began (though they were later aborted by the sheriff).

¶ 3 But there was a catch, ultimately a significant one. Over four years into the foreclosure suit, while BoA's motion for summary judgment was awaiting decision, the Bozeks had attempted to remove the case to federal court. The federal judge immediately flagged the notice of removal as untimely and rejected it—that is, the federal court dismissed the action and terminated the litigation in federal court. But the federal court never formally remanded the matter to the circuit court of Cook County. BoA's position before the circuit court was that jurisdiction had now reattached in the circuit court, and the circuit judge agreed. The court thus proceeded to enter summary judgment for BoA, ultimately paving the way for the judicial sale and the later eviction proceeding.

¶ 4 The Bozeks had appealed the circuit court's entry of summary judgment, claiming that the federal court's lack of a formal remand meant that the circuit court never reacquired jurisdiction, and the circuit court's resultant orders of summary judgment and confirmation of judicial sale were thus void. A panel of this court agreed and held that the orders of summary judgment and confirmation of judicial sale were void. See Bank of America, N.A. v. Bozek , 2018 IL App (1st) 170386-U, ¶¶ 16, 20, 2018 WL 2324172 ( Bozek I ).

¶ 5 By the time Bozek I was handed down in May 2018, the order of possession in the eviction proceeding had already been entered. The next business day after our decision was filed, the sheriff began to evict the Bozeks from their property. The sheriff aborted, fortunately, just over an hour into it, based on the obvious legal questions raised by the Bozeks.

¶ 6 The Bozeks brought this lawsuit, naming essentially every person or entity involved in the underlying foreclosure and eviction cases as a defendant. They sued BoA, the bank that filed the foreclosure case against the Bozeks; PNC Bank, N.A. (PNC Bank), which may or may not have briefly taken possession of the Bozeks’ home following the foreclosure sale; the law firm BoA hired to prosecute its foreclosure case against the Bozeks; Judicial Sales Corporation (JSC), the company that conducted the judicial sale of the Bozeks’ home; Judge Anna M. Loftus, the circuit court judge who presided over the foreclosure case; Judge Anthony C. Swanagan, the circuit court judge who oversaw the eviction case; Cook County Sheriff Thomas J. Dart; and 20 John Doe defendants. Against each of those defendants, the Bozeks asserted claims for, among other things, "wrongful foreclosure," wrongful eviction, fraud, consumer fraud, false imprisonment, and a due process violation under 42 U.S.C. § 1983.

¶ 7 The circuit court dismissed the complaint with prejudice on various grounds as to each defendant. For the reasons that follow, we affirm that judgment in all respects.


¶ 9 On January 26, 2007, the Bozeks obtained a mortgage loan from National City Mortgage (National City) (a division of National City Bank) for $490,000 to purchase property located at 616 The Lane in Hinsdale, Illinois. At some point, National City assigned the mortgage to PNC Bank, which in turn assigned the mortgage to BoA.

¶ 10 In April 2010, the Bozeks defaulted on their mortgage. On November 2, 2010, BoA filed a mortgage foreclosure lawsuit against the Bozeks in the circuit court of Cook County. That case was prosecuted by defendant, the law firm of McCalla Raymer Leibert Pierce, LLC, formerly known as Pierce & Associates, P.C. (the McCalla firm).

¶ 11 On July 31, 2015, the Bozeks filed a notice of removal in the United States District Court for the Northern District of Illinois. On August 25, 2015, the federal court—Judge Blakey—entered a minute order dismissing the Bozeks’ case. The order stated in full:

"On 7/31/15, Josef Bozek filed a notice of removal, attempting to remove to this Court Case No. 10 CH 47361, which he represents is pending in the Circuit Court of Cook County's Chancery Division. He did not attach a copy of the complaint to the removal petition. However, given that the case was apparently initiated in 2010 (which we know because of the case number), it seems highly unlikely that the procedural requirements of the removal statute are met. See, e.g. , 28 U.S.C. Section 1446(b) (requiring the notice of removal to be filed within 30 days after receipt by the defendant of the initial pleading). Certainly, the notice of removal does not permit the Court to conclude that the requirements for removal are met. Accordingly, the case is dismissed without prejudice. Civil case terminated."

What is of note here is that, while Judge Blakey obviously did not believe the notice of removal was timely—coming nearly five years into the foreclosure lawsuit, when removals must occur within 30 days of a lawsuit's receipt by the defendant—the order did not include a formal remand of the case to the circuit court.

¶ 12 In light of that ruling from the federal court, proceedings in state court resumed. On October 28, 2015, the circuit court entered separate orders granting motions for summary judgment, reformation of deed, and judgment of foreclosure that BoA had filed before the Bozeks’ removal attempt. The same day, the court entered an order appointing JSC selling officer for the purpose of conducting a public auction of the Bozeks’ home.

¶ 13 In November 2015, the Bozeks filed a motion to vacate, arguing that the circuit court lacked jurisdiction to enter the orders because the federal court had yet to formally remand the case to the circuit court. On January 6, 2016, Judge Loftus denied the Bozeks’ motion.

¶ 14 On August 11, 2016, JSC conducted the judicial sale of the Bozeks’ home. The record of who, precisely, initially purchased the home at the sale is unclear (the entire record of that case is not before us); it appears that BoA purchased it but shortly thereafter assigned the deed to Diplomat Property Manager, LLC (Diplomat). In any event, it is undisputed that the judicial sales deed names Diplomat as the property owner.

¶ 15 The following month, BoA filed a "Motion for Order Approving Report of Sale and Distribution, Confirming Sale and Order of Possession, and for a Personal Deficiency Judgment." In October 2016, the Bozeks filed a motion challenging the circuit court's subject matter jurisdiction.

¶ 16 On November 15, 2016, Judge Loftus entered an order (1) approving the report of sale, (2) granting BoA possession of the property, and (3) awarding BoA a deficiency judgment for $357,053.66 against the Bozeks. In a separate order entered the same day, Judge Loftus denied the Bozeks’ jurisdictional challenge, stating, "[the] Court has made a finding that it does have subject matter jurisdiction and Defendants [sic ] challenge is denied."

¶ 17 On December 15, 2016, the Bozeks filed a "Petition to Vacate Order Granting Summary Judgment and Order Confirming Sale," which again asserted that the circuit court lacked jurisdiction because the federal court had not yet remanded the case to the circuit court. Judge Loftus construed the petition as a motion to reconsider and, on January 13, 2017, entered a written order denying the petition. With respect to the Bozeks’ claim that the court lacked subject matter jurisdiction, Judge Loftus surmised that the federal court's August 25, 2016 order "dismissed the case without perfecting the removal" and, as a result, "the case was never removed." (Emphasis in original.) From that premise, Judge Loftus concluded that "no remand was necessary."

¶ 18 In February 2017, the Bozeks filed a notice of appeal. That appeal was docketed in this court as case No. 1-17-0386.

¶ 19 In March 2017, the McCalla firm posted a notice on the door of the Bozeks’ home, stating that PNC Bank had purchased the home on August 11,...

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