Ocwen Loan Servicing, LLC v. DeGomez

• Decision Date: 30 December 2020
• Docket Number: No. 2-19-0774,2-19-0774
• Parties: OCWEN LOAN SERVICING, LLC, Plaintiff-Appellee, v. Guadalupe DEGOMEZ, Augustin Olea, Teresa Trujillo, Eric Gomez, Unknown Owners, and Nonrecord Claimants, Defendants (Guadalupe DeGomez and Teresa Trujillo, Defendants-Appellants).
• Court: United States Appellate Court of Illinois

2020 IL App (2d) 190774
180 N.E.3d 760
449 Ill.Dec. 835

OCWEN LOAN SERVICING, LLC, Plaintiff-Appellee,
v.
Guadalupe DEGOMEZ, Augustin Olea, Teresa Trujillo, Eric Gomez, Unknown Owners, and Nonrecord Claimants, Defendants

(Guadalupe DeGomez and Teresa Trujillo, Defendants-Appellants).

No. 2-19-0774

Appellate Court of Illinois, Second District.

Opinion filed December 30, 2020

Giovanni Raimondi, of RAI Law, LLC, of Chicago, for appellants.

Jena Valdetero, Jessica D. Pedersen, and Kristin Howard Corradini, of Bryan Cave Leighton Paisner LLP, of Chicago, for appellee.

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

449 Ill.Dec. 837

¶ 1 In March 2010, plaintiff, Ocwen Loan Servicing, LLC (Ocwen), filed a foreclosure action against defendants, Guadalupe DeGomez and Teresa Trujillo, concerning a property in Wood Dale. Defendants were served. In June 2010, the court entered a default judgment of foreclosure and the property was sold through a sheriff's sale. The court confirmed the report of sale. In June 2011, Diana Bahena and Salvador Bahena (the purchasers) purchased the property.

¶ 2 In September 2018, more than eight years after the filing of the foreclosure action, defendants filed a petition for relief from void judgment, seeking to vacate the judgment of foreclosure and sale, pursuant to section 2-1401(f) of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-1401(f) (West 2018)). They argued that all orders entered against them in the foreclosure action were void because defendants were not properly named on the summons and, therefore, the court lacked personal jurisdiction over them. Ocwen moved to dismiss the petition, pursuant to section 2-619.1 of the Code ( 735 ILCS 5/2-619.1 (West 2018) ). The trial court granted Ocwen's motion. Defendants appeal. For the following reasons, we affirm.

¶ 3 I. BACKGROUND

¶ 4 On March 17, 2010, Ocwen filed a foreclosure complaint against defendants. The property was commonly known as 407 Itasca Road, Wood Dale, Illinois, 60191. Ocwen named defendants in the complaint as owners and mortgagors of the property. Ocwen served its complaint through a summons bearing a caption reading in its entirety: Ocwen Loan Servicing, LLC vs. Guadalupe DeGomez, et al. " Attached to the summons was a page stating, in relevant part:

"PLEASE SERVE THE FOLLOWING DEFENDANTS AT THE FOLLOWING ADDRESSES:

Guadalupe DeGomez; 407 Itasca Road; Wood Dale, IL 60191 - DU

Teresa Trujillo; 407 Itasca Road; Wood Dale, IL 60191—DU

Teresa Trujillo; 13 School St; Addison, IL 60101—DU"

180 N.E.3d 763

449 Ill.Dec. 838

¶ 5 On March 21 and March 30, 2010, Trujillo and DeGomez, respectively, were served with the summons and the complaint. On June 29, 2010, the trial court entered a default judgment against defendants for, inter alia , failure to appear or plead and entered a judgment of foreclosure. The property was sold at a judicial sale to Federal Home Loan Corporation (Federal Home). On October 22, 2010, the court entered an order confirming the judicial sale. On June 6, 2011, Federal Home executed and delivered a special warranty deed transferring title to the property to the purchasers. On the same day, a mortgage from the purchasers to Mortgage Electronic Registration Systems (MERS) was recorded. On February 27, 2013, a mortgage from the purchasers to MERS was recorded. On March 1, 2013, a satisfaction of mortgage from MERS to the purchasers was recorded.

¶ 6 On September 27, 2018, defendants filed their petition to vacate the judgment of foreclosure and sale, pursuant to section 2-1401(f) of the Code ( 735 ILCS 5/2-1401(f) (West 2018)), against Ocwen, MERS, and the purchasers. Defendants argued that the judgment was void because the court did not acquire personal jurisdiction over them, since the summons did not identify them as defendants, was not directed to anyone, and did not contain Trujillo's name. Defendants also alleged that the lack of jurisdiction was apparent on the face of the record. Defendants asked the court to, inter alia , (1) quash service for defendants; (2) vacate all orders and judgments entered in the case as void ab initio ; (3) find that the lack of personal jurisdiction was apparent on the face of the record; (4) find that defendants are the owners of the property; (5) restore possession of the property and order Ocwen, the current occupants, Federal Home, and the purchasers to pay restitution for reasonable use and occupancy of the property from November 2010, through and including the date defendants are restored to possession; (6) order Ocwen, the current occupants, Federal Home, the purchasers, and MERS to pay defendants as restitution all profits they derived from the property; and (7) stay further proceedings until all restitution is made to defendants.

¶ 7 Ocwen filed a combined motion to dismiss pursuant to section 2-619.1 of the Code (id. § 2-619.1), arguing that (1) defendants' petition was deficient in that it failed to plead sufficient facts to support the petition, failed to identify which Illinois Supreme Court Rules the summons allegedly violated, contained vague and conclusory allegations, and failed to attach the summons upon which the petition was based; (2) the summons was legally sufficient to confer personal jurisdiction; (3) defendants' petition was moot because (a) defendants failed to establish that they had any current rights or interest in the property and (b) under section 2-1401(e) of the Code (id. § 2-1401(e) ), there was no jurisdictional defect on the face of the record to support displacing the bona fide purchasers; and (4) the foreclosure action remained effective against the remaining parties even if jurisdiction had not been established for defendants.

¶ 8 MERS also filed a combined motion to dismiss pursuant to a section 2-619.1 of the Code (id. § 2-619.1), arguing that (1) the summons served in the foreclosure action was sufficient to afford personal jurisdiction over defendants, (2) MERS was entitled to the protections of section 2-1401(e) of the Code as a bona fide purchaser, (3) laches barred defendants' claim, and (4) the petition requested improper relief.

¶ 9 On May 30, 2019, pursuant to a settlement, the trial court entered an order dismissing defendants' petition with prejudice as to the purchasers and MERS

180 N.E.3d 764

449 Ill.Dec. 839

and quieting title to the property in the purchasers subject only to MERS's mortgage lien. The trial court then ordered briefing on the issue of mootness.

¶ 10 Defendants filed their memorandum of law regarding mootness. Ocwen filed its response arguing that defendants' petition was moot and that it was barred by laches . Defendants replied, noting that Ocwen inappropriately raised the affirmative defense of laches for the first time in its response.

¶ 11 On August 8, 2019, during the hearing on defendants' petition, defendants stated that the only relief they sought against Ocwen was restitution in the form of money damages. The court noted that Ocwen raised the defense of laches in its motion to dismiss and invited defendants to motion up an evidentiary hearing regarding "why it took ten years for them to assert their right to the detriment of Ocwen." Defendants' counsel replied, "I don't have the authority one way or the other, so, if the order is what seems to be that laches bars this, if [defendants] want to bring an evidentiary hearing, I think within 30 days they can bring a motion."

¶ 12 The trial court then dismissed defendants' petition with prejudice as to Ocwen. The court stated that, due to defendants' settlement with the purchasers, defendants' petition was moot as to Ocwen regarding the following relief sought by defendants: possession, use, and occupancy of the property. The court also found that laches barred defendants' remaining requests for relief. The court stated that its order was final with no just reason to delay appeal. On September 6, 2019, defendants filed a timely notice of appeal.

¶ 13 II. ANALYSIS

¶ 14 A. Standard of Review

¶ 15 Defendants appeal the dismissal of their petition. For the following reasons, we conclude that dismissal was proper under section 2-619(a)(9) of the Code, which permits dismissal of an action where "the claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim." 735 ILCS 5/2-619(a)(9) (West 2018). We review de novo the dismissal of a complaint pursuant to section 2-619(a)(9). McIntosh v. Walgreens Boots Alliance, Inc. , 2019 IL 123626, ¶ 17, 434 Ill.Dec. 189, 135 N.E.3d 73. We also review de novo a judgment on a section 2-1401 petition claiming voidness due to a lack of personal jurisdiction. Deutsche Bank National Trust Co. v. Hall-Pilate , 2011 IL App (1st) 102632, ¶ 12, 354 Ill.Dec. 330, 957 N.E.2d 924.

¶ 16 B. Dismissal of Petition

¶ 17 Defendants argue that the trial court lacked personal jurisdiction over them in the foreclosure action and erred by dismissing their petition to vacate." Defendants contend that the summons violated Illinois Supreme Court Rules because it did not name Trujillo on its face and did not direct the summons to...