Fed. Nat'l Mortg. Ass'n v. Altamirano

• Decision Date: 31 August 2020
• Docket Number: No. 2-19-0198,2-19-0198
• Parties: FEDERAL NATIONAL MORTGAGE ASSOCIATION, Plaintiff-Appellee, v. Willie ALTAMIRANO, Jose Manuel Garcia-Velazquez, Ernestina Altamirano-Cruz, Anayeli Gonzalez, United States of America, Unknown Owners, and Nonrecord Claimants, Defendants (Jose Manuel Garcia-Velasquez and Ernestina Altamira-Cruz, Defendants-Appellants; Gaspar Huerta, Rosaura Lopez, and Mortgage Electronic Registration System, Inc., Respondents-Appellees).
• Court: United States Appellate Court of Illinois

2020 IL App (2d) 190198

169 N.E.3d 102

446 Ill.Dec. 41

FEDERAL NATIONAL MORTGAGE ASSOCIATION, Plaintiff-Appellee,

v. Willie ALTAMIRANO, Jose Manuel Garcia-Velazquez, Ernestina Altamirano-Cruz, Anayeli Gonzalez, United States of America, Unknown Owners, and Nonrecord Claimants, Defendants(Jose Manuel Garcia-Velasquez and Ernestina Altamira-Cruz, Defendants-Appellants;Gaspar Huerta, Rosaura Lopez, and Mortgage Electronic Registration System, Inc., Respondents-Appellees).

No. 2-19-0198

Appellate Court of Illinois, Second District.

Opinion filed August 31, 2020

Joseph Cho, of JSC Law, of Des Plaines, for appellants.

Ralph T. Wutscher, Coleman J. Braun, and Jeffrey T. Karek, of Maurice Wutscher LLP, of Chicago, for appellee Federal National Mortgage Ass'n.

Nathan B. Grzegorek and James A. Larson, of Plunkett Cooney, P.C., of Chicago, for other appellees.

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

¶ 1 I. INTRODUCTION

¶ 2 Petitioners, Jose Manuel Garcia-Velazquez and Ernestina Altamirano-Cruz, filed a petition under section 2-1401 of the Civil Practice Law ( 735 ILCS 5/2-1401 (West 2018) ), alleging that a judgment entered against them was void for want of personal jurisdiction. The trial court found their claim barred by laches . A motion to dismiss this appeal has also been filed, which we ordered taken with the case. As we explain below, that motion is denied. For the reasons that follow, we affirm.

¶ 3 II. BACKGROUND

¶ 4 On September 30, 2010, respondent, the Federal National Mortgage Association (Fannie Mae), filed a complaint to foreclose a mortgage against Willie Altamirano, Jose Manuel Garcia-Velazquez, Ernestina Altamirano-Cruz, and Anayeli Gonzalez (also named were the United States, unknown owners, and nonrecord claimants). The parcel at issue was residential property located in West Chicago. The summons listed "WILLIE ALTAMIRANO et al " in the caption. Jose Manuel Garcia-Velazquez, Ernestina Altamirano-Cruz, and Anayeli Gonzalez were identified as defendants on an attached service list. A process server filed affidavits attesting that all four defendants were served.

¶ 5 Defendants failed to appear, and a default judgment was entered on February 7, 2012. Fannie Mae purchased the property at a judicial sale. On December 26, 2012, Fannie Mae sold the property to respondents Gaspar Huerta and Rosaura Lopez. The property was mortgaged to respondent Mortgage Electronic Registration System, Inc. (MERS).

¶ 6 On August 13, 2018, petitioners filed their section 2-1401 petition (id. ). In it, they alleged that the judgment of foreclosure was void, as they were not named in the caption to the summons. They contend that this technical defect deprived the trial court of personal jurisdiction over them. Huerta, Lopez, and MERS moved to dismiss on numerous grounds, pursuant to section 2-619.1 of the Civil Practice Law ( 735 ILCS 5/2-619.1 (West 2018) ). The trial court granted the motion, noting the legislature's recent amendment to section 2-201(c) of the Civil Practice Law, which added that "[a] court's jurisdiction is not affected by a technical error in format of a summons" (Pub. Act 100-1048, § 5 (eff. Aug. 23, 2018) (amending 735 ILCS 5/2-201 )) and further finding petitioners' claims barred by laches . Petitioners now appeal.

¶ 7 III. ANALYSIS

¶ 8 On appeal, petitioners raise two main issues. First, they contend that the summons was defective and the trial court lacked personal jurisdiction when it entered the judgment of foreclosure. Second, they contend that laches does not bar their current action. Before addressing those issues, we will examine the motion filed by Huerta, Lopez, and MERS to dismiss this appeal. Because this appeal comes to us following a successful motion to dismiss, our review is de novo . Schloss v. Jumper , 2014 IL App (4th) 121086, ¶ 15, 381 Ill.Dec. 694, 11 N.E.3d 57.

¶ 9 We note that petitioner's first argument raises a potential constitutional issue. In Arch Bay Holdings, LLC-Series 2010B v. Perez , 2015 IL App (2d) 141117, ¶ 19, 397 Ill.Dec. 921, 43 N.E.3d 562, we held that the failure to name a defendant on the face of a summons deprived the trial court of personal jurisdiction. As noted, the legislature subsequently amended section 2-201 of the Civil Practice Law ( 735 ILCS 5/2-201 (West 2018) ) to state that "[a] court's jurisdiction is not affected by a technical error in the format of the summons" (id. § 2-201(c) ). To give the amendment effect in this case, we would have to read it as abrogating the earlier-decided Arch Bay case and validating the still earlier-effected service of process. This conflict raises an arguable separation of powers issue. See First Mortgage Co. v. Dina , 2017 IL App (2d) 170043, ¶ 30, 419 Ill.Dec. 37, 92 N.E.3d 448 (" ‘[W]hile the General Assembly can pass legislation to prospectively change a judicial construction of a statute if it believes that the judicial interpretation was at odds with legislative intent [citation], it cannot effect a change in that construction by a later declaration of what it had originally intended [citation].’ " (Emphasis in original and internal quotation marks omitted.) (quoting Hamilton County Telephone Cooperative v. Maloney , 151 Ill. 2d 227, 233, 176 Ill.Dec. 62, 601 N.E.2d 760 (1992) )). It is axiomatic that we must avoid addressing a constitutional issue unless it is truly necessary. Id. ¶ 20. As such, we will only address petitioner's argument concerning personal jurisdiction if we cannot resolve the case on another basis.

¶ 10 A. MOTION TO DISMISS THIS APPEAL

¶ 11 Huerta, Lopez, and MERS move to dismiss this appeal as moot. They assert that under sections 13-107.1 and 13-109.1 of the Civil Practice Law ( 735 ILCS 5/13-107.1, 13-109.1 (West 2018)), they have established adverse possession of the subject parcel, rendering all other issues moot. Section 13-107.1 provides:

"(a) Actions brought for the recovery of any lands, tenements, or hereditaments of which any person may be possessed for 2 successive years, having a connected title, deductible of record, as a purchaser at a judicial foreclosure sale, other than a mortgagee, who takes possession pursuant to a court order under the Illinois Mortgage Foreclosure Law, or a purchaser who acquires title from a mortgagee or a purchaser at a judicial foreclosure sale who received title and took possession pursuant to a court order, shall be brought within 2 years after possession is taken. When the purchaser acquires title and has taken possession, the limitation shall begin to run from the date a mortgagee or a purchaser at a judicial foreclosure sale takes possession pursuant to a court order under the Illinois Mortgage Foreclosure Law or Article IX of this Code. The vacation or modification, pursuant to the provisions of Section 2-1401, of an order or judgment entered in the judicial foreclosure does not affect the limitation in this Section.

(b) This Section applies to actions filed on or after 180 days after the effective date of this amendatory Act of the 100th General Assembly." Id. § 13-107.1.

Section 13-109.1 states:

"Every person in the actual possession of lands or tenements, under claim and color of title, as a purchaser at a judicial foreclosure sale, other than a mortgagee, who takes possession pursuant to a court order under the Illinois Mortgage Foreclosure Law, or a purchaser who acquires title from a mortgagee or a purchaser at a judicial foreclosure sale who received title and took possession pursuant to such a court order, and who for 2 successive years continues in possession, and also, during such time, pays all taxes legally assessed on the lands or tenements, shall be held and adjudged to be the legal owner of the lands or tenements, to the extent and according to the purport of his or her paper title. All persons holding under such possession, by purchase, legacy, or descent, before such 2 years have expired, and who continue possession, and continue to pay the taxes as above set forth so as to complete the possession and payment of taxes for the term above set forth, are entitled to the benefit of this Section. The vacation or modification, pursuant to the provisions of Section 2-1401, of an order or judgment entered in the judicial foreclosure does not affect the limitation in this Section.

This Section applies to actions filed on or after 180 days after the effective date of this amendatory Act of the 100th General Assembly." Id. § 13-109.1.

Note the final sentence of each statute. Both are limited to actions filed at least 180 days after the effective date of the respective amendments. Both became effective on August 23, 2018. Here, the initial foreclosure was filed in 2010, well before the effective date of these amendments. Even if we were to consider the date petitioners filed their section 2-1401 petition—August 13, 2018—as the relevant date, it would still predate when the amendments became effective.

¶ 12 Somewhat cryptically, respondents assert that, because a section 2-1401 petition is a collateral attack on a previously entered judgment, no action for recovery of land has yet been filed. They then conclude that the " ‘sunrise’ provisions contained in [s]ections 13-107.1 and 13-109.1 are inapplicable." Something has been filed because something is pending before this court. Moreover, this case has been pending since before the effective date of these amendments, a fortiori , this action was filed before that date. We would thus have to give this statute retroactive effect, which would be inappropriate given the legislature's plain statement regarding when these provisions became effective. See Allegis Realty Investors v. Novak , 223 Ill. 2d 318, 330, 307 Ill.Dec. 592, 860 N.E.2d 246 (2006) ("[I]f the legislature has expressly prescribed the statute's temporal reach, the expression of legislative intent must be given effect absent a constitutional prohibition.").

¶ 13 In sum, we find this argument unpersuasive and deny the motion...