MidFirst Bank v. McNeal

• Decision Date: 17 March 2016
• Docket Number: No. 1–15–0465.,1–15–0465.
• Citation: 402 Ill.Dec. 457,52 N.E.3d 378
• Parties: MIDFIRST BANK, Plaintiff–Appellee, v. Devita McNEAL, Individually, Appellant (Devita McNeal, as Independent Executor of the Estate of Inez E. McNeal, a/k/a Inez Elese McNeal, Deceased; Unknown Owners; Nonrecord Claimants; and Unknown Occupants, Defendants).
• Court: United States Appellate Court of Illinois

52 N.E.3d 378

402 Ill.Dec. 457

MIDFIRST BANK, Plaintiff–Appellee

v.Devita McNEAL, Individually, Appellant (Devita McNeal, as IndependentExecutor of the Estate of Inez E. McNeal, a/k/a Inez Elese McNeal, Deceased; Unknown Owners; Nonrecord Claimants; and Unknown Occupants, Defendants).

No. 1–15–0465.

Appellate Court of Illinois, First District, Fourth Division.

March 17, 2016.

David A. Shelton, Chicago, for appellant.

Joseph M. Herbas, of Shapiro Kreisman & Associates, LLC, Bannockburn, for appellee.

OPINION

Presiding Justice McBRIDEdelivered the judgment of the court, with opinion.

¶ 1Inez Elese McNeal purchased a home located in Chicago in 2003, and subsequently passed away in 2008.Her mortgage became delinquent and in 2012, her mortgage lender, MidFirst Bank, filed a complaint to foreclose that mortgage.After Inez Elese McNeal's will was admitted to probate, MidFirst Bank filed an amended complaint, naming her daughter, Devita McNeal(Ms. McNeal), as defendant in her capacity as the executor of her mother's estate.The court entered a judgment of foreclosure, and Ms. McNeal filed several motions to reconsider and to vacate or set aside that judgment, in both her representative capacity, and later, in her individual capacity.Those motions were unsuccessful, and Ms. McNeal appeals, contending that the foreclosure judgment was void because she was not personally named as a defendant in the proceedings.

¶ 2 The record shows that on January 9, 2003, MidFirst Bank provided a loan to Inez Elese McNeal, who executed a note secured by a mortgage on her property located in Chicago.Inez Elese McNeal passed away on February 18, 2009, and the note fell into default in December 2011.On June 28, 2012, MidFirst Bank filed a complaint in the circuit court of Cook County for foreclosure pursuant to the Illinois Mortgage Foreclosure Law (735 ILCS 5/15–1101 et seq.(West 2012)).The complaint named the unknown heirs and/or legatees of Inez Elese McNeal, deceased, as well as unknown owners, nonrecord claimants, and unknown occupants.On July 13, 2012, a notice of foreclosure lis pendens was recorded against the property.

¶ 3 On September 26, 2012, MidFirst Bank filed a motion for leave to file an amended complaint and motion to appoint a special representative for the deceased mortgagor.The motions were granted, and on October 25, 2012, MidFirst Bank filed an amended complaint which named Julia Fox as special representative for the estate of Inez Elese McNeal, Sabrina McNeal and Devita McNeal as heirs, and Devita McNeal as Executor of Inez Elese McNeal's will.Ms. McNeal, in her capacity as executor, appeared in open court on October 25, 2012, and was served with summons and the amended complaint on November 3, 2012.

¶ 4 On December 28, 2012, a probate case was filed for the deceased Inez Elese McNeal.Her will was admitted to probate on February 27, 2013, and Ms. McNeal was appointed an independent executor of the estate.

¶ 5 On July 15, 2013, MidFirst Bank filed a second amended complaint, naming Ms. McNeal as the independent executor of the Estate of Inez Elese McNeal, as defendant.Ms. McNeal, in her capacity as executor, filed an answer to the second amended complaint on August 22, 2013.

¶ 6 On November 14, 2013, MidFirst Bank filed a motion for summary judgment and motion for judgment of foreclosure.Ms. McNeal, in her capacity as executor, failed to respond to these motions, and the court granted them on December 5, 2013.

¶ 7 On December 18, 2013, Ms. McNeal, as executor, filed a motion to “set aside default * * * judgment of foreclosure” pursuant to section 2–1301 of the Code of Civil Procedure(Code)(735 ILCS 5/2–1301(West 2012) ).The court denied her motion without prejudice on January 7, 2014.

¶ 8 On February 14, 2014, Ms. McNeal, as executor, filed a “Motion to Reconsider Entry of Judgment and to Dismiss Complaint to Foreclose Mortgage.”In that motion, Ms. McNeal argued, among other things, that because the property had been left to her in her mother's will, she was a necessary party to the foreclosure proceedings and a “mortgagor” pursuant to the Illinois Mortgage Foreclosure Law.She claimed that MidFirst Bank failed to comply with the requirements to foreclose the mortgage because it had not named her as a party to the proceedings, rendering the foreclosure decree void.The court denied Ms. McNeal's motion on May 23, 2014.

¶ 9 On August 18, 2014, the property was sold pursuant to the terms of the judgment of foreclosure.The “Selling Officer's Report of Sale and Distribution” was filed with the court on September 5, 2014, and on September 25, the court entered an order confirming the sale and granting MidFirst Bank possession of the property as of October 25, 2014.

¶ 10 On October 23, 2014, Ms. McNeal, this time in her individual capacity, filed a motion under section 2–1203 to set aside void judgment of foreclosure.She argued, among other things, that she had an ownership interest in the property which vested on the death of her mother, and that MidFirst Bank's failure to name and serve her rendered the foreclosure decree void.MidFirst Bank responded to Ms. McNeal's motion, and initially challenged her standing to bring the motion because she was not a party to the case and had not sought leave to intervene.Alternatively, MidFirst Bank pointed out that her motion was essentially a second motion to reconsider the judgment of foreclosure, and that her arguments were “virtually identical” to the arguments found in her first motion to reconsider that she filed as executor.MidFirst Bank also alleged that Ms. McNeal was not a necessary party to the foreclosure proceedings, and, because a lis pendens had been filed prior to the will being admitted to probate, whatever interest Ms. McNeal acquired in the property was subject to the pending foreclosure.

¶ 11The trial court held a hearing on Ms. McNeal's motion on January 12, 2015.After oral argument, the court stated that it was “certainly a problem that Miss McNeal never actually sought to intervene in the case,” but that the “larger problem” was that “the lis pendens was filed and the case proceeded” before Ms. McNeal gained an interest in the real estate.The court denied the motion, and Ms. McNeal, individually, now appeals, contending in this court that the judgment of foreclosure is void because she was a “known heir” but was not named as a defendant.

¶ 12 As an initial matter, MidFirst Bank maintains that this court lacks jurisdiction over this appeal because Ms. McNeal was not a party to the foreclosure proceedings and she lacks standing to bring this appeal.As an appellate court, we have the duty to consider our jurisdiction to decide an appeal, and to dismiss the appeal if we find that jurisdiction is lacking.Brentine v. DaimlerChrysler Corp.,356 Ill.App.3d 760, 765, 292 Ill.Dec. 621, 826 N.E.2d 1057(2005)Pestka v. Town of Fort Sheridan Co.,371 Ill.App.3d 286, 292, 308 Ill.Dec. 841, 862 N.E.2d 1044(2007).

¶ 13 In arguing that this court lacks jurisdiction, MidFirst Bank points out that Ms. McNeal, individually, was not a party to the underlying foreclosure case, and she never sought leave to intervene in the trial court in her individual capacity.In arguing that this court lacks jurisdiction, MidFirst Bank cites Success National Bank v. Specialist Eye Care Center, S.C.,304 Ill.App.3d 74, 76, 237 Ill.Dec. 852, 710 N.E.2d 482(1999), in which the Second District dismissed an appeal based on the appellant's lack of standing to bring it.Ms. McNeal does not contest MidFirst Bank's contention that she was a nonparty in the trial court, and provides no authority to show that she had standing to file motions in the court below.

¶ 14 Generally, a person who is not made a party need not and cannot appear in an action unless the appearance is acquiesced in by the plaintiff, or unless the third person makes himself or herself a party by some recognized form of proceeding.6 C.J.S.Appearances§ 5(2015);City of Chicago v. Chatham Bank of Chicago,54 Ill.App.2d 405, 419, 203 N.E.2d 788(1964).Likewise, as a general matter, only parties may bring motions in respect to pleadings.SeeConley v. Rust,12 Ill.App.3d 26, 29, 297 N.E.2d 397(1973);Shanklin v. Hutzler,294 Ill.App.3d 659, 665–66, 229 Ill.Dec. 71, 691 N.E.2d 7(1997);Jackson v. Pioletti,346 Ill.App. 569, 573, 105 N.E.2d 779(1952).Ms. McNeal, however, was not a party to the foreclosure proceedings and she never sought leave to intervene in the proceedings.

¶ 15 There are specific procedures in place for a nonparty who wishes to intervene in a proceeding, and Illinois does not recognize intervention by implication.In re Special Prosecutor,164 Ill.App.3d 183, 187, 115 Ill.Dec. 271, 517 N.E.2d 682(1987).The general rule for intervention is found in section 2–408 of the Code, which allows, in certain circumstances, nonparties to intervene in proceedings.735 ILCS 5/2–408(West 2012).The statute recognizes that intervention may be either permissive or of right, but in either circumstance, a timely application to intervene must be made.Id.;Feiertag v. Reichmann,21 Ill.App.2d 215, 217, 157 N.E.2d 818(1959).Specifically in the foreclosure context, section 15–1501 allows for a nonparty to intervene in foreclosure proceedings, either by right or in the court's discretion, depending on the circumstances, up until the time that an order confirming the sale is entered.735 ILCS 5/15–1501(West 2012).

¶ 16 In this case, Ms. McNeal did not make any attempt to engage in the standard intervention methods.Ms. McNeal had actual notice of the foreclosure, was a party to the lawsuit as the independent executor of the estate of Inez Elese McNeal, and first appeared in court on October 25, 2012.As the executor of her mother's estate, Ms. McNeal had been fully able to represent her own interest as an heir to the property.Indeed, Ms. McNeal did so, by filing an answer and motions to reconsider the...