Mid-America Federal Sav. and Loan Ass'n v. Kosiewicz

• Decision Date: 23 May 1988
• Docket Number: MID-AMERICA,No. 2-87-0797,2-87-0797
• Parties: , 120 Ill.Dec. 633 FEDERAL SAVINGS AND LOAN ASSOCIATION, Plaintiff, v. Robert J. KOSIEWICZ, et al., Defendants-Appellees (Paul Javaras et al., Intervenors-Appellants).
• Court: United States Appellate Court of Illinois

Page 663

524 N.E.2d 663

170 Ill.App.3d 316, 120 Ill.Dec. 633

MID-AMERICA FEDERAL SAVINGS AND LOAN ASSOCIATION, Plaintiff, v. Robert J. KOSIEWICZ, et al., Defendants-Appellees (Paul

Javaras et al., Intervenors-Appellants).

No. 2-87-0797.

Appellate Court of Illinois,

Second District.

May 23, 1988.

Herbert J. Bell, Downers Grove, for Paul Javaras, Frank C. Skach, Mid-America Federal Sav. & Loan Ass'n.

Botti, Marinaccio, DeSalvo & Pieper, Ltd., Oak Brook, Law Offices of John N. Pieper, John N. Pieper, Oak Brook, for Robert J. Kosiewicz, Shirley A. Kosiewicz.

Connolly & Ekl, P.C., Clarendon Hills, Patrick J. Williams, for defendants-appellees.

Justice DUNN delivered the opinion of the court:

Intervenors, Paul Javaras and Frank Skach, appeal the judgment of the circuit court granting the motion of defendant, Robert Kosiewicz, to quash summons and set aside a judgment of foreclosure entered against him. Intervenors contend that the sheriff's return of summons was valid on its face and that the court therefore erred in permitting defendant to attack collaterally the judgment of foreclosure. We reverse and remand.

Defendant, his late wife, Shirley, and their two children formerly resided on the subject property. On October 24, 1984, plaintiff, Mid-America Federal Savings and Loan Association, filed a complaint to foreclose the mortgage against defendants Robert and Shirley Kosiewicz. On November 4, 1984, Du Page County deputy sheriff Joseph Brancato personally served Shirley Kosiewicz at the family residence. The return of service signed by Brancato also reflects substituted service on Robert Kosiewicz by leaving copies of the summons and complaint with his wife. Neither defendant appeared, and the court entered a default judgment of foreclosure and sale on December 17, 1984. Intervenors purchased the property at a sheriff's sale on January 29, 1985. The redemption period expired without defendant Robert Kosiewicz appearing or challenging the sale.

Intervenors obtained a writ of assistance against defendants. On January 4, 1986 Skach went to the Kosiewicz residence to inform defendants of the writ. That same day Shirley Kosiewicz was found dead of an apparently self-inflicted gunshot wound.

On March 27, 1986, Robert Kosiewicz (hereinafter referred to as defendant) filed a special and limited appearance, along with a petition pursuant to section 2-1401 of the Code of Civil Procedure (Ill.Rev.Stat.1985, ch. 110, par. 2-1401) seeking to vacate the judgment of foreclosure. The basis of the petition was that the court had no jurisdiction to enter the orders complained of because defendant had never been served with process.

The court initially denied defendant's petition. On defendant's motion for reconsideration, the court conducted an evidentiary hearing. At the hearing, Brancato testified that on November 4, 1984, he served two summonses and two complaints on Shirley Kosiewicz. He did not specifically recall his conversation with Shirley Kosiewicz on that date, but stated on cross-examination that he normally would have explained the contents of the papers to the person upon whom he served them. He testified that he did not personally mail copies of the summons and complaint to defendant and did not observe anyone else do so.

Anthony Heying testified that he is the office manager of the civil division of the Du Page County sheriff's office. He stated that in the case of substituted service, it was the policy of the office that the actual mailing was done by a woman in the office. Theresa Bucholz testified that it is generally her responsibility to process papers returned by the sheriff's deputies for mailing. She did not have a specific recollection of addressing an envelope to Robert Kosiewicz, but identified a notation on the summons as being in her handwriting and indicating that the papers had been mailed. She does not personally put stamps on the envelopes, but merely puts them in a mail basket in the office. She does not have any personal knowledge of whether stamps are ever placed on the envelopes or if they are ever deposited in a United States mailbox.

Defendant's affidavit submitted in connection with the petitions states that he never had any knowledge of the pendency of the foreclosure action and never received any copies of the summons and complaint from his wife. Defendant first learned of the proceedings when Skach informed him on January 4, 1986, that he had purchased the property at a judicial sale and was preparing to take possession. Defendant's affidavit also states that his wife committed suicide without ever informing him of the proceedings or the default. Defendant avers that he is currently able to cure the default and redeem the property. Based on this evidence, the trial court granted defendant's motion, quashed the summons, and vacated the judgment of foreclosure.

The intervenors appeal, contending the trial court erred in ordering an evidentiary hearing and subsequently granting defendant's petitions. They argue that, as bona fide purchasers of the property, they are immune from collateral attack upon the judgment unless the jurisdictional defect appears on the face of the record. They contend that the sheriff's return is not facially defective, thus precluding defendant's challenge. Defendant responds that the return is defective in several ways, in that (1) it does not affirmatively state that it was Deputy Brancato who mailed the summons to defendant; (2) it does not definitively state that it was mailed to Robert J. Kosiewicz, but rather recites that it was sent to "defendant Kosiewicz, Robert J. and Shirley A."; (3) it does not state that the summons was sent in a sealed envelope with postage fully prepaid; and (4) "[p]erhaps most importantly, the return does not on its face reflect that two copies of the summons and two copies of the complaint were in fact, delivered to Shirley A. Kosiewicz on November 4, 1984."

Normally, a judgment may be attacked at any time by a necessary party who does not have notice. But where defects are not apparent from the record and a bona fide purchaser has intervened, the necessary party will be precluded from attacking the otherwise void judgment. (City of Rockford v. Lemar (1987), 157 Ill.App.3d 350, 352-53, 109 Ill.Dec. 507, 510 N.E.2d 128; Uptown Federal Savings & Loan Association v. Vasavid (1981), 94 Ill.App.3d 531, 534, 49 Ill.Dec. 811, 418 N.E.2d 831.) Since it is undisputed that intervenors are bona fide purchasers of the subject property, we must carefully examine the return to determine whether any defects are apparent upon its face.

In granting defendant's petition, the trial court relied on State Bank v. Thill (1986), 113 Ill.2d 294, 100 Ill.Dec. 794, 497 N.E.2d 1156. In Thill, defendant wife had, without the knowledge of her husband, allowed the mortgage on their home to go into default. When plaintiff began foreclosure proceedings, defendant husband was purportedly served by substituted service left with the wife. The wife never told the husband about the foreclosure proceedings, and the husband subsequently sought to vacate the judgment of foreclosure on the basis that he never received notice. The supreme court found that the return of service was defective in several respects:

"First, the affidavit of service does not show that any summons was served, noting only service of a complaint. Second, the affidavit fails to show that an additional copy of the summons was left with Nancy Thill for the defendant. Finally, and most importantly, the affidavit is defective because it does not affirmatively recite that a copy of the summons was subsequently mailed in a sealed envelope with postage fully prepaid to the defendant at the Pebble Creek Drive address. Accordingly, we must hold that these defects appearing on the face of the affidavit of service rendered the return defective. ( Thill, 113 Ill.2d at 311, 100 Ill.Dec. 794, 497 N.E.2d 1156.)

We think the return in the instant case is not subject to the same criticisms as the Thill return.

Defendant's attack on the return attempts to show that it was facially defective. However, under the Thill analysis, the question is whether a third-party purchaser at a judicial sale would reasonably be put on notice that there was a jurisdictional defect in the underlying proceedings. The instant return in no way evidences such a defect.

Defendant first complains that the return does not affirmatively state that Deputy Brancato himself mailed copies of the summons and complaint to defendant. Defendant bases his objection on the statement in Thill that in order to establish proper substituted service, the return must affirmatively state "that the officer or other authorized person making service sent a copy of the summons in a sealed envelope with postage fully prepaid, addressed to the defendant at his usual place of abode." ( Thill, 113 Ill.2d at 310, 100 Ill.Dec. 794, 497 N.E.2d 1156.) The court, in turn, took the mailing requirement from section 2-203 of the Code of Civil Procedure, which authorizes abode service. (Ill.Rev.Stat.1985, ch. 110, par. 2-203.) The Code essentially provides two steps for obtaining valid abode service: leaving a copy with a member of the household over 13 years of age and mailing a copy to the defendant at this address. The statute merely provides that "the officer or other authorized person making service" send a copy to the defendant. Nothing in the statute or in Thill requires that the authorized person serving the summons and the authorized person mailing the copy must be the same person, and we will not impose such a requirement. The testimony of the sheriff's department employees reveals an efficient system for serving and mailing notice, in which different employees take sole responsibility for different aspects of the process. Defendant has failed to demonstrate how requiring Deputy Brancato to have mailed the additional copy personally...