Deutsche Bank Nat'l Trust Co. v. Nichols

• Decision Date: 15 November 2013
• Docket Number: Docket No. 1–12–0350.
• Citation: 2013 IL App (1st) 120350,997 N.E.2d 223,375 Ill.Dec. 220
• Parties: DEUTSCHE BANK NATIONAL TRUST COMPANY, Plaintiff–Appellee, v. Tijuana NICHOLS, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2013 IL App (1st) 120350

997 N.E.2d 223

375 Ill.Dec. 220

DEUTSCHE BANK NATIONAL TRUST COMPANY, Plaintiff–Appellee,

v.Tijuana NICHOLS, Defendant–Appellant.

Docket No. 1–12–0350.

Appellate Court of Illinois, First District, Sixth Division.

Aug. 30, 2013.

Rehearing Denied Nov. 15, 2013.

Tijuana L. Nichols, of Glenwood, appellant pro se.

Keith H. Werwas, of Potestivo & Associates, P.C., of Chicago, for appellee.

OPINION

Justice REYES delivered the judgment of the court, with opinion.

¶ 1 Following the entry of default judgment of foreclosure and the subsequent confirmation of the sale of the related property, pro se defendant Tijuana Nichols (Nichols) filed an appeal challenging the trial court's final order approving the sale. Nichols filed a petition to substitute judge for cause after the trial court denied her leave to file an answer and affirmative defenses in the matter. Nichols argues the order approving the sale of the property must be voided because the trial court entered the order before ruling on her petition. For the following reasons, we affirm the decision of the circuit court of Cook County.

¶ 2 BACKGROUND

¶ 3 On April 7, 2011, plaintiff Deutsche Bank National Trust Co. (Deutsche Bank) filed a complaint in the circuit court of Cook County initiating mortgage foreclosure proceedings against Nichols. Upon Deutsche Bank's request, the trial court then appointed a special process server who, on April 25, 2011, effected substitute service pursuant to section 2–203(a)(2) of the Code of Civil Procedure (735 ILCS 5/2–203(a)(2) (West 2010)) by serving Nichols' abode located at 417 West Holly Court in Glenwood, Illinois.¹ On July 20, 2011, Deutsche Bank presented a motion for entry of default judgment of foreclosure as Nichols had not yet filed an answer or appearance in the case. Nichols did not appear in court on July 20, 2011, and the trial court therefore granted default judgment in favor of Deutsche Bank.

¶ 4 On November 18, 2011, however, Nichols filed a motion for leave to file an answer and affirmative defenses in the matter.² The trial court denied this motion on December 1, 2011, holding “service occurred over seven months ago [and Nichols'] request came post judgment and sale of the property.” ³ A week later, on December 7, 2011, Nichols filed a petition ⁴ to substitute judge for cause pursuant to section 2–1001(a)(3) of the Code of Civil Procedure ( 735 ILCS 5/2–1001(a)(3) (West 2010)). Nichols asserted two reasons as evidence of judicial bias: (1) Deutsche Bank allegedly “ never served [her] with notice of [default judgment]”; and (2) the trial judge denied her motion for leave to file an answer and affirmative defenses. Nichols spindled her petition with the clerk of the court, scheduling the matter to be heard on January 26, 2012.

¶ 5 Subsequently, Deutsche Bank filed a motion requesting the trial court enter an order approving the sale of the property. The clerk of the court scheduled a hearing on this motion for January 25, 2012 and, consequently, the trial court entered an order approving the sale of the property on that date. There is no record of Nichols' appearing in court on January 25 to contest the confirmation of the sale. The record also does not reflect whether Nichols delivered a copy of her petition to the judge or whether she appeared in court on January 26 to present and argue her petition. In any event, the record does indicate the trial court never entered an order granting or denying Nichols' petition for substitution of judge. Nichols now appeals the trial court's final order as void.⁵

¶ 6 ANALYSIS

¶ 7 On appeal, Nichols argues the trial court lacked the authority to enter the final order in this case while her substitution of judge petition was still pending. The question of whether the trial court had legal authority to enter final judgment in this case is a question of law. See Crittenden v. Cook County Comm'n on Human Rights, 2012 IL App (1st) 112437, ¶ 81, 362 Ill.Dec. 308, 973 N.E.2d 408. Accordingly, we review this question de novo. Id.

¶ 8 In Illinois, requests for substitution of judge are controlled by statute. See 735 ILCS 5/2–1001 (West 2010). A party may request a substitution of judge either “as of right” or “for cause.” 735 ILCS 5/2–1001(a)(2), (a)(3) (West 2010). A motion for substitution of judge as of right will be granted “if it is presented before trial or hearing begins and before the judge to whom it is presented has ruled on any substantial issue in the case, or if it is presented by consent of the parties.” 735 ILCS 5/2–1001(a)(2)(ii) (West 2010). If a party may no longer bring a timely motion for substitution of judge as of right, that party may still petition the court for a substitution of judge for cause. 735 ILCS 5/2–1001(a)(3)(i) (West 2010). The petition must “set[ ] forth the specific cause for substitution” and must be “verified by the affidavit of the applicant.” 735 ILCS 5/2–1001(a)(3)(ii) (West 2010). Upon the filing of the petition, “a hearing to determine whether the cause exists shall be conducted as soon as possible by a judge other than the judge named in the petition.” 735 ILCS 5/2–1001(a)(3)(iii) (West 2010). However, “a party's right to have a petition for substitution of judge heard by another judge is not automatic.” In re Estate of Wilson, 238 Ill.2d 519, 553, 345 Ill.Dec. 583, 939 N.E.2d 426 (2010). A judge may deny a petition without referring it to another judge if it fails to meet threshold requirements. Id. at 567, 345 Ill.Dec. 583, 939 N.E.2d 426. Specifically, the trial court may deny the petition if it: (1) was not timely filed; (2) failed to include an affidavit; or (3) alleged bias not stemming from an extrajudicial source. Id. In some cases, judges may consider whether the petition was filed in good faith or for purposes of delay, but this “may require a more complex and nuanced analysis.” Id. at 567–68, 345 Ill.Dec. 583, 939 N.E.2d 426.

¶ 9 In arguing the trial court lacked authority to enter any further orders in this case, Nichols directs us to the criminal counterpart of the controlling civil statute. The criminal statute, section 114–5(a) of the Code of Criminal Procedure of 1963, provides “[u]pon the filing of such a motion the court shall proceed no further in the cause but shall transfer it to another judge not named in the motion.” 725 ILCS 5/114–5(a) (West 2010); see also People v. Bell, 276 Ill.App.3d 939, 947, 213 Ill.Dec. 351, 658 N.E.2d 1372 (1995). Of course, this is not a criminal case and, therefore, the Code of Criminal Procedure does not apply here. Further, section 114–5(a) specifically applies to automatic substitutions of judge as of right, not for-cause substitutions similar to the one requested here. See, e.g., People v. Saltzman, 342 Ill.App.3d 929, 932, 277 Ill.Dec. 567, 796 N.E.2d 653 (2003) (“Section 114–5(a) of the [Code of Criminal Procedure] provides a defendant with an absolute right to a substitution of a judge if the defendant files a timely written motion for substitution.”). Moreover, the fact the legislature included the phrase “the court shall proceed no further” in the criminal statute, but did not similarly include it in the civil statute, raises the inference that the filing of the petition should only automatically divest a judge's powers under the circumstances provided under section 114–5(a). Compare 725 ILCS 5/114–5 (West 2010), with 735 ILCS 5/2–1001 (West 2010); see also, e.g., Community Unit School District 200 v. Illinois Insurance Guaranty Fund, 358 Ill.App.3d 1056, 1063, 295 Ill.Dec. 321, 832 N.E.2d 472 (2005) (noting the “presence” of a rule in one part of the statute and simultaneous “absence” of the rule in another part of the statute suggests the “legislature intended” the omission).

¶ 10 Despite this apparent inference, this court has previously stated in civil cases, “once a motion for substitution of judge for cause is brought, that judge loses all power and authority over the case and any orders entered after a judge's removal or after an improper denial of such motion are of no force or effect.” In re Petition of C.M.A., 306 Ill.App.3d 1061, 1067, 239 Ill.Dec. 920, 715 N.E.2d 674 (1999). For this proposition, the court in C.M.A. cited three cases: Jiffy Lube International, Inc. v. Agarwal, 277 Ill.App.3d 722, 727, 214 Ill.Dec. 609, 661 N.E.2d 463 (1996), People v. Bell, 276 Ill.App.3d 939, 946–47, 213 Ill.Dec. 351, 658 N.E.2d 1372 (1995), and In re Marriage of Cummins, 106 Ill.App.3d 44, 47, 61 Ill.Dec. 809, 435 N.E.2d 506 (1982). In light of our supreme court's decision in Estate of Wilson, we no longer find these three cases still stand for the proposition cited in C.M.A.

¶ 11 First, we note People v. Bell is a criminal case governed by a separate criminal statute not applicable here.⁶ Second, Marriage of Cummins considered whether a motion for substitution of judge as of right was timely filed ⁷; this case and C.M.A. both concern for-cause requests. Third, the Illinois Supreme Court has since effectively overruled the language from Jiffy Lube upon which the court in C.M.A. relied. See Estate of Wilson, 238 Ill.2d at 559–60, 345 Ill.Dec. 583, 939 N.E.2d 426.

¶ 12 Regarding this last point, this court stated in Jiffy Lube that a judge may not deny a for-cause petition without referring that petition to another judge. Jiffy Lube, 277 Ill.App.3d at 727, 214 Ill.Dec. 609, 661 N.E.2d 463. According to the court in Jiffy Lube, “[s]uch a procedure is not in compliance with the statute, which mandates that such a petition shall be heard by a judge other than the judge named in the petition.” Id. In Estate of Wilson, however, our supreme court noted such an interpretation of section 2–1001(a)(3) was flawed. See Estate of Wilson, 238 Ill.2d at 560, 345 Ill.Dec. 583, 939 N.E.2d 426. According to the supreme court, the appellate court in Jiffy Lube “applied the plain language of section 2–1001(a)(3) of the Code of Civil Procedure [citation] to...