PNC Bank, Nat'l Ass'n v. Kusmierz

• Decision Date: 28 August 2020
• Docket Number: No. 2-19-0521,2-19-0521
• Parties: PNC BANK, NATIONAL ASSOCIATION, Plaintiff-Appellee, v. Jerzy KUSMIERZ; Halina Kusmierz; The Township of York; and PNC Bank, National Association, Defendants (Jerzy Kusmierz and Halina Kusmierz, Defendants-Appellants; Brian T. Heath, Naillisa S. Ragland, and Mortgage Electronic Registration Systems, Inc., Respondents-Appellees).
• Court: United States Appellate Court of Illinois

2020 IL App (2d) 190521

161 N.E.3d 1181

443 Ill.Dec. 529

PNC BANK, NATIONAL ASSOCIATION, Plaintiff-Appellee,

v. Jerzy KUSMIERZ; Halina Kusmierz; The Township of York; and PNC Bank, National Association, Defendants(Jerzy Kusmierz and Halina Kusmierz, Defendants-Appellants;Brian T. Heath, Naillisa S. Ragland, and Mortgage Electronic Registration Systems, Inc., Respondents-Appellees).

No. 2-19-0521

Appellate Court of Illinois, Second District.

Opinion filed August 28, 2020

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

Meredith Pitts, of Heavner, Beyers & Mihlar, LLC, of Decatur, for appellee PNC Bank, National Association.

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

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

¶ 1 Plaintiff, PNC Bank, National Association (Bank), filed a foreclosure complaint against defendants, Jerzy and Halina Kusmierz, concerning property in Lombard.¹ Ultimately, in February 2012, the trial court entered a default judgment against defendants, and the property was sold through a judicial sale.

¶ 2 Six years later, on September 12, 2018, defendants filed a petition for relief from void judgments, pursuant to section 2-1401(f) of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-1401(f) (West 2016)), arguing that all orders entered against them in the foreclosure action were void because defendants were not properly served and, therefore, the trial court lacked personal jurisdiction over them. The Bank moved to dismiss the petition, pursuant to section 2-619.1 of the Code (id. § 2-619.1), as did subsequent purchasers. The court granted the motions. Defendants appeal. For the following reasons, we affirm.

¶ 3 I. BACKGROUND

¶ 4 On March 30, 2011, the Bank filed the foreclosure complaint and summons against defendants, relating to real estate located at 1405 Wisconsin Avenue in Lombard. The record reflects that, on March 31, 2011, Jennifer I. Magida, an employee of Metro Detective Agency, LLC, attempted service at the subject address, but the property consisted of only a vacant lot, with no structures.

¶ 5 On April 4, 2011, the court entered an order appointing Metro Detective Agency, LLC, as special process server.

¶ 6 An affidavit of service dated the next day, April 5, 2011, reflects that, on April 1 , 2011, Magida served Jerzy by abode service when she handed the complaint and summons to his wife, Halina at 1107 West Eaton Court, Palatine, IL, 60067. According to the affidavit, on April 4, 2011, Magida also sent Jerzy the summons via United States mail to the same Palatine address. A second affidavit, also dated April 5, 2011, attests to personal service of Halina on April 1 , 2011, at the Palatine address. Both affidavits attest: "I am a registered employee of a Private Detective Agency licensed by the Illinois Department of Financial and Professional Regulation and thereby authorized to serve process within the State of Illinois pursuant to 735 ILCS 5/2-202(a)."

¶ 7 On February 27, 2012, the Bank filed a motion for foreclosure and judgment of sale. It noted April 1, 2011, as the date of service for defendants but also noted that defendants never appeared.

¶ 8 On February 28, 2012, the court entered an order of default against defendants and a judgment of foreclosure in the amount of $132,418.51. The property was sold at a judicial sale, with the Bank being the successful bidder. On June 12, 2012, the court entered an order confirming the judicial sale. In 2013, Brian T. Heath and Naillisa S. Ragland purchased the property from the Bank.

¶ 9 On September 12, 2018, approximately six years after the default judgment was entered, defendants filed a section 2-1401 petition seeking relief from the judgments. They noted that they were served in Cook County but argued that the court never acquired personal jurisdiction over them, because there was no order in the record appointing a special process server for Cook County, in violation of section 2-202(a) of the Code ( 735 ILCS 5/2-202(a) (West 2016)).² Defendants argued that the jurisdictional defect affirmatively appeared on the face of the record and that the default judgment was void. In their prayer for relief, defendants requested that the court

—quash the service;

—vacate all orders and judgments in the case as void ab initio ;

—find that the lack of jurisdiction is apparent on the face of the record;

—find that defendants are the owners of the property;

—restore possession of the property to them and order that the Bank and the purchasers pay defendants, "as restitution, reasonable use and occupancy of [the property] from July 12, 2012, through and including the date [defendants] are restored to possession," or, alternatively, "in the event that possession is not restored" to defendants, that the Bank and purchasers pay defendants "as restitution" the value of the property on the date that the petition is granted, plus reasonable use and occupancy of the residence from July 12, 2012, through and including the date that restitution is paid in full;

—order the Bank and the purchasers to pay defendants, "as restitution," all profits that they derived from the residence; and

—stay further proceedings until all restitution is made to defendants.

¶ 10 The Bank filed a section 2-619.1 motion to dismiss the petition, arguing, in sum, that the petition was barred by the laches doctrine, was moot, and requested improper relief.

¶ 11 Heath and Ragland also filed a section 2-619.1 motion, arguing, in sum, that they were entitled to bona fide -purchaser protections under section 2-1401(e) (id. § 2-1401(e) ), the laches doctrine barred the petition, and defendants' requested relief was improper. In addition, they attested that, in 2013, they purchased the vacant lot from the Bank for $24,000. They further attested that they constructed a five-bedroom home on the property, paying $42,000 and obtaining two mortgage loans to finance construction: "from STC Capital Bank (‘STC’), to wit: (a) a $220,400.00 loan secured by a mortgage lien interest in the Premises delivered to Mortgage Electronic Registration Systems, Inc. (‘MERS’), as nominee for STC, on May 17, 2013; and (b) a home equity line of credit in the amount of $72,250.00 secured by a subordinate mortgage lien interest in the Premises delivered to STC on May 7, 2015." Further, they attested that they remitted around $29,500 for real estate taxes and $6500 in property insurance. MERS later joined the section 2-619.1 motion to dismiss filed by Heath and Ragland (hereinafter, we refer to Heath, Ragland, and MERS collectively as "the purchasers").

¶ 12 On May 21, 2019, after hearing oral argument, the trial court granted both motions to dismiss with prejudice, noting that it found that the purchasers were bona fide under section 2-1401(e) and that laches applied as to both motions. On June 18, 2019, defendants filed their notice of appeal.

¶ 13 II. ANALYSIS

¶ 14 A. Motion to Dismiss Appeal

¶ 15 Preliminarily, we note that, similar to the posture below, on appeal the Bank and the purchasers each filed a separate response brief. In addition, the purchasers, in a motion that we ordered taken with the case, have moved to dismiss the appeal. They argue, in sum, that this appeal is moot because, pursuant to sections 13-107.1 and 13-109.1 of the Code ( 735 ILCS 5/13-107.1, 13-109.1 (West 2018)), they have acquired title to the premises through adverse possession and, therefore, their interest in the property would not be affected by vacating the foreclosure orders.

¶ 16 We deny the motion to dismiss the appeal as moot. We faced almost-identical motions in JP Morgan Chase Bank, N.A. v. Robinson , 2020 IL App (2d) 190275, 2020 WL 1847076, and Bank of New York v. Rodriguez , 2020 IL App (2d) 190143, 2020 WL 1503117, and denied both, noting in Robinson that, to rule on the merits of the motion, we had to rule on the merits of the case. Robinson , 2020 IL App (2d) 190275, ¶ 29 n.2.

¶ 17 B. Standard of Review

¶ 18 We note that, on appeal, defendants do not contend that they were not actually served but, rather, that the foreclosure judgments against them were void and the trial court erred in dismissing the section 2-1401 petition. Defendants argue that service in Cook County required appointment of a special process server, which did not happen until April 4, after personal service occurred on April 1; the defect in service was apparent on the face of the record, as the service address was in Cook County, such that the purchasers were not bona fide ; the doctrine of laches does not apply to petitions to vacate void judgments; and they are entitled to restitution.

¶ 19 For the following reasons, we conclude that dismissal of the petition against both the purchasers and the Bank 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 pleading 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. In addition, we review de novo a judgment on a section 2-1401 petition claiming voidness due to 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.

¶ 20 C. Dismissal of Petition as to the Purchasers

¶ 21 Defendants contend that service was improper because it was conducted by an unauthorized person in that, although the special process server had not yet been appointed by the court, service was conducted in Cook County, which, according to section 2-202(a) of the Code ( 735 ILCS 5/2-202(a) (West 2010)), required service by the sheriff or a court-appointed special process server. Defendants argue that the service affidavit, reflecting service on April 1,...