Deutsche Bank Nat'l Trust Co. v. Sedys
| Decision Date | 08 May 2018 |
| Docket Number | Nos. 2-18-0188 & 2-18-0330 cons.,s. 2-18-0188 & 2-18-0330 cons. |
| Citation | 432 Ill.Dec. 126,129 N.E.3d 14,2019 IL App (2d) 180188 |
| Parties | DEUTSCHE BANK NATIONAL TRUST COMPANY, Plaintiff-Appellee, v. Jurgita SEDYS, Juozas Sedys, Nonrecord Claimants, Unknown Tenants, and Unknown Owners, Defendants (Jurgita Sedys, Defendant-Appellant). Deutsche Bank National Trust Company, Plaintiff-Appellee, v. Leopoldo Araujo, Silvia Araujo, Mortgage Electronic Registration Systems, Inc., The Willows of Fox Valley Condominium Association, Unknown Owners, and Nonrecord Claimants, Defendants (Leopoldo Araujo, Defendant-Appellant). |
| Court | United States Appellate Court of Illinois |
Carla Sherieves, of CMS Law, LLC, of Chicago, for appellants.
Rosa M. Tumialán, of Dykema Gossett PLLC, and Kimberly A. Jansen and Adam Saper, of Hinshaw & Culbertson LLP, both of Chicago, and Dawn N. Williams, of Dykema Gossett PLLC, of Grand Rapids, Michigan, for appellee.
¶ 1 In these consolidated cases, defendants, Jurgita Sedys and Leopoldo Araujo, brought petitions under section 2-1401 of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-1401 (West 2016) ), alleging that the default judgments of foreclosure entered against them were void for lack of personal jurisdiction in that plaintiff, Deutsche Bank National Trust Company, failed to comply with the requirements for service by publication (id. § 2-206). The trial court dismissed the petitions. In each appeal, defendant argues, as below, that the default judgment is void because the record does not reflect that the clerk of the court mailed defendant a copy of the published notice at the address listed in the affidavit that plaintiff prepared in support of service by publication. We affirm because the records on appeal in both cases are insufficiently complete to support defendants' claims of error.
¶ 3 Sedys's case was docketed below as No. 08-CH-2141, and Araujo's case was docketed as No. 08-CH-3321. The section 2-1401 proceedings in the cases were assigned to the same trial judge and conducted simultaneously. The same counsel represented both defendants and raised the same jurisdictional issue. On appeal, Sedys's case was docketed as No. 2-18-0188, and Araujo's case was docketed as No. 2-18-0330. Defendants are represented on appeal by the same counsel as below. We consolidated the appeals for decision on our own motion because defendants raise the same issue and the underlying facts are similar in all relevant respects. Plaintiff, however, has different counsel in the two appeals and does not raise all the same arguments.
¶ 4 The following proceedings occurred in each case. Plaintiff brought a complaint for foreclosure of a mortgage and filed an accompanying affidavit for service by publication. In the affidavit, plaintiff identified defendant's place of residence but claimed unsuccessful attempts at personal service. Plaintiff provided the clerk of the court with a notice for newspaper publication. The record contains no certificate from the clerk that the published notice was mailed to defendant at the address listed in the affidavit.
¶ 5 When defendant failed to appear, plaintiff filed a motion for a default judgment of foreclosure. Subsequently, the court entered judgments of default and for foreclosure. The default judgment specified that the matter had "com[e] on to be heard" by the court. The record, however, contains no report of proceedings of the hearing. In its foreclosure judgment, the trial court found that it had personal jurisdiction over defendant. The property was later sold, and the trial court entered an order approving the sale.
¶ 6 Several years later, defendant filed a petition under section 2-1401, claiming that the default judgment, and all successive judgments, were void. Defendant argued that the court lacked personal jurisdiction over defendant because the clerk of the court failed to mail a copy of the published notice to defendant's address as listed in the affidavit for service by publication. See id. § 2-206(a) ().
¶ 7 Plaintiff filed a motion to dismiss, arguing that the petition was defective on its face and also barred by affirmative matter. The trial court dismissed the petition because defendant failed to provide an affidavit in support of the allegation that the clerk did not mail the notice. See id. § 2-1401(b) ().
¶ 8 Defendant filed an amended petition. Defendant removed the allegation that the clerk did not, in fact, mail a copy of the published notice. Defendant instead alleged that the record contained no indication that the clerk mailed a copy of the notice. Plaintiff moved to dismiss the amended petition. The trial court granted the motion because the amended petition, like the original, lacked a supporting affidavit.
¶ 9 Defendant in each case filed a timely appeal.
¶ 11 Defendants challenge the dismissal of their section 2-1401 petitions. Plaintiff not only defends the grounds on which the trial court dismissed the petitions but also submits various alternative grounds for affirming. See In re Estate of Funk , 221 Ill. 2d 30, 96, 302 Ill.Dec. 574, 849 N.E.2d 366 (2006) ().
¶ 12 In their section 2-1401 petitions, defendants claimed that the trial court lacked personal jurisdiction over them when it entered the default judgments. Personal jurisdiction is established either by service of process in compliance with statutory requirements or by a party's submission to the court's jurisdiction. Arch Bay Holdings, LLC-Series 2010B v. Perez , 2015 IL App (2d) 141117, ¶ 10, 397 Ill.Dec. 921, 43 N.E.3d 562. A judgment entered without personal jurisdiction over a party is void and can be attacked at any time, directly or collaterally. Id. ¶ 9. Section 2-1401 provides a process for seeking vacatur of a final judgment more than 30 days old. Id. ¶ 8 ; see 735 ILCS 5/2-1401 (West 2016). A section 2-1401 petition may be used to attack a judgment as void. U.S. Bank National Ass'n v. Rahman , 2016 IL App (2d) 150040, ¶ 25, 403 Ill.Dec. 725, 54 N.E.3d 866. The petition "must be supported by affidavit or other appropriate showing as to matters not of record." 735 ILCS 5/2-1401(b) (West 2016).
¶ 13 The trial court dismissed defendants' petitions because they did not include affidavits to support their jurisdictional claims. This was error. The claim in each petition was based on an omission in the record, namely the absence of evidence that the clerk mailed a copy of the notice for publication to defendant at the address specified in the affidavit for service by publication. This claim was restricted to the record as it stood, and therefore no affidavit was required to support it.
¶ 14 Though we reject the ground on which the trial court dismissed the petitions, we nonetheless affirm the dismissals. Plaintiff in No. 2-18-0330 argues that the record in that case is insufficiently complete to support defendant's contention that the clerk failed to mail the published notice. We agree and find the same defect in No. 2-18-0188. We reach that conclusion through the following textual analysis of section 2-206(a) of the Code and similarly worded statutes.
Upon the filing of such an affidavit, the clerk of the court shall publish notice of the pendency of the action. Id. Section 2-206(a) further provides:
Id.
A party defending service by publication must demonstrate strict compliance with all requirements of the statute. Concord Air, Inc. v. Malarz , 2015 IL App (2d) 140639, ¶ 34, 400 Ill.Dec. 878, 49 N.E.3d 26.
¶ 16 Illinois cases have long held that personal jurisdiction over a party through service by publication is not successful if the clerk fails to mail a copy of the published notice to each defendant listed in the affidavit filed in support of service by publication, as required by section 2-206(a). See Anderson v. Anderson , 229 Ill. 538, 539-40, 82 N.E. 311 (1907) ; In re Marriage of Wilson , 150 Ill. App. 3d 885, 889, 104 Ill.Dec. 184, 502 N.E.2d 447 (1986) ; Markham v. Markham , 50 Ill. App. 3d 1061, 1065, 8 Ill.Dec. 70, 365 N.E.2d 308 (1977). According to defendants, a certificate of mailing from the clerk is indispensable evidence of mailing, and they rely on the absence of such a certificate from the records in both cases as sufficient grounds for reversal.
¶ 17 In their briefs, defendants make passing references to this court's decision in Wilson . At oral argument, counsel for defendants addressed Wilson more extensively, arguing that the case holds that a clerk's certificate of mailing is necessary proof of mailing under section 2-206(a).
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