State Bank of Lake Zurich v. Thill
| Decision Date | 17 September 1986 |
| Docket Number | No. 62438,62438 |
| Citation | 497 N.E.2d 1156,100 Ill.Dec. 794,113 Ill.2d 294 |
| Parties | , 100 Ill.Dec. 794 STATE BANK OF LAKE ZURICH, et al., v. Charles J. THILL, Jr., et al. (First National Bank of Des Plaines et al., Appellants; Charles J. Thill, Jr., Appellee). |
| Court | Illinois Supreme Court |
Stanley M. Cahn and Susan E. Woods, Chicago, for appellants.
The plaintiff, the State Bank of Lake Zurich, filed a complaint in the circuit court of Lake County to foreclose a mortgage on certain real property. The complaint named Charles J. Thill, Jr., Nancy J. Thill, his wife, and "unknown owners" as defendants. The circuit court, after finding that each defendant had been duly and properly brought before the court, either by personal service of summons, service by publication, or voluntary appearance, entered a judgment of foreclosure and ordered the sale of the property. The plaintiff purchased the property at a sheriff's sale. Title to the property was thereafter conveyed to the First National Bank of Des Plaines in a land trust. The First National Bank of Des Plaines, as land trustee, conveyed title to Edwin T. Magoon, and Gail M. Magoon, his wife. More than a year after the foreclosure judgment, Charles J. Thill, Jr., after entering a special and limited appearance, filed a motion to vacate the judgment of foreclosure and sale, alleging that the circuit court lacked personal jurisdiction to enter the judgment against him, as he purportedly was not served with process in the foreclosure suit. The First National Bank of Des Plaines, as trustee, Robert Christian, and Edwin and Gail Magoon, who claimed title or interest in the subject property pursuant to the judgment in the prior suit to foreclose the mortgage, were granted leave by the circuit court to intervene. The intervenors sought judgment on the pleadings which, as will be discussed later, was granted by the circuit court without an evidentiary hearing. The appellate court reversed the order of the circuit court (135 Ill.App.3d 747, 90 Ill.Dec. 304, 481 N.E.2d 1215) and remanded for an evidentiary hearing to resolve the factual dispute of whether proper service of process was obtained upon Charles J. Thill, Jr. We allowed the intervenors' petition for leave to appeal (94 Ill.2d R. 315) and now affirm the judgment of the appellate court.
In April of 1976, Charles and Nancy Thill purchased a single-family residence at 170 Pebble Creek Drive in Lake Zurich. The Thills financed the purchase of their home, in part, by executing a promissory note in the principal amount of $39,950 to the plaintiff, secured by a mortgage on the subject property. On May 24, 1982, the plaintiff, after determining that the Thills had failed to make monthly payments of principal and interest due in January, February, March, April, and May of 1982, commenced suit to foreclose the mortgage.
On motion of the plaintiff's attorney, the circuit court authorized Walter S. Chambers, Lawrence Steussy, Steven J. Phillips and Michael Szydelko to serve process in this cause. (See Ill.Rev.Stat.1981, ch. 110, par. 2-202(a).) Summons was placed with Steven J. Phillips for service on Charles and Nancy Thill. Phillips, in turn, delivered the documents to Michael Szydelko, who executed an affidavit of service which recited:
[The underlining indicates blanks in the printed form.]
) SS
County of Lake )
I, Michael Szydelko, being first duly sworn on oath, depose and say that service of Complaint for Foreclosure Mortgage, original of which is presently on file with the Clerk of the Circuit Court of Lake County, Illinois, was made on Charles J. Thill & Nancy J., the 11 day of June, 1982, at approximately 5:30 o'clock P.M., in the following manner:
(A) By handing a copy thereof to the within named _________________________, who is a ____________________ (sex), ____________________ (race), of the approximate age of _______________, being at the address of ___________________________________.
(B) By leaving a copy of the above-described document with Nancy J. Thill, at the usual place of abode of the said Respondent at the following address: 170 Pebble Creek, Lake Zurich, IL., with a person of Respondent's family of the age of 13 years or above, who is a female (sex), white (race), of the approximate age of 35, and informing such person of the contents thereof, and also by sending through the United States Mail, by depositing in the United States Post Office at _________________________, on the ____ day of _______________, 19__, a copy thereof in a sealed envelope, with postage fully prepaid addressed to said Respondent at such usual place of abode.
(C) I have duly served the above-described document upon the within named _________________________, by reading and by delivering a true copy thereof to ______________________________, whose Title is _________________________, who is a _______________ (sex), _______________ (race), of the approximate age of __________, being at the address of ___________________________________.
(D) By posting a copy of the above-described document on the premises, no person being in actual possession thereof.
Michael Szydelko (Affiant)
Subscribed and sworn to before me
this 14th day of June, 1982.
Paul Hammer (Notary Public)"
On July 13, 1982, Nancy Thill filed a pro se appearance and answer to the complaint for foreclosure. The answer recited that she tendered the plaintiff a cashier's check for four of the five months in arrears; that the plaintiff refused to accept the check because of the foreclosure proceedings; and that Nancy Thill realized she was behind in mortgage payments but believed she could pay off the indebtedness within 30 to 40 days. No further appearance, answer, or pleading was filed by either of the Thills prior to the entry of judgment of foreclosure and sale.
On September 13, 1982, the plaintiff, after giving notice by mail to Nancy Thill, moved for summary judgment pursuant to section 2-1005 of the Code of Civil Procedure (Ill.Rev.Stat.1981, ch. 110, par. 2-1005) and Supreme Court Rule 191 (87 Ill.2d R. 191). The circuit court entered a judgment of foreclosure after finding that Charles J. Thill, Jr., failed to appear or plead to the complaint; that Nancy J. Thill appeared and filed a responsive pleading; that both Charles and Nancy Thill were personally served with process on June 11, 1982; that all "unknown owners" were duly served by publication; that the court had jurisdiction of the subject matter and of the parties; and that the total indebtedness due to the plaintiff was $42,518.24. The judgment ordered the sheriff of Lake County to sell the subject premises at a public auction. The judgment then gave the defendants, and all those claiming under them, six months after the date of the sale to redeem the premises, barring any attempt to exercise that right thereafter. In the event the premises remained unredeemed, the judgment directed the sheriff to execute and to deliver a deed of conveyance of the premises to the holder of the certificate of sale.
Pursuant to the judgment, a sheriff's sale was held on October 18, 1983, at which the plaintiff purchased the subject property for $42,518.24, leaving no deficiency. The sheriff filed his report of the sale and distribution. The circuit court then entered an order approving, ratifying, and confirming the sheriff's report. No redemption having been made within the time prescribed in the foreclosure judgment, the sheriff executed a sheriff's deed to the plaintiff.
On October 31, 1983, Charles Thill, Jr. (hereinafter the defendant), was granted leave to file a special and limited appearance to contest the jurisdiction of the court. (See Ill.Rev.Stat.1981, ch. 110, par. 2-301.) The special and limited appearance was accompanied by a motion to vacate the summary judgment order, the judgment of foreclosure and sale against him, and the order confirming and ratifying the sheriff's sale. The motion alleged that Charles Thill, Jr., was never properly served with summons, either personally or by substituted service. Therefore, defendant alleged, because the court lacked personal jurisdiction over him, the judgment of foreclosure and sale was void with respect to him.
The affidavits of Charles and Nancy Thill were attached in support of the motion to vacate. In his affidavit, Charles J. Thill, Jr., asserted that he was never served with a summons or a complaint either personally or by mail; that he had no knowledge of the foreclosure proceedings until October 20, 1983, when he received a telephone call from Robert Christian, who told him that he "hated to have or cause [Mr. Thill and his family] to be evicted" from their Lake Zurich residence; that since their marriage his wife has handled exclusively all marital-related and family-related payments, including mortgage and tax matters; that he was never advised by his wife, or any other person, of a mortgage arrearage; and that he had sufficient funds for payment if he had known. In her affidavit, Nancy Thill reiterated that she was responsible for the management of all family financial matters, including mortgage, real estate tax, and insurance payments; that on June 11, 1982, a man came to the Thill residence and handed her several sheets of paper, without explaining their content or informing her that any of the documents were for her husband; that no summons or complaint came to their home by mail; and that she never informed her husband of the mortgage arrearage, the complaint for foreclosure, or her pro se appearance in the foreclosure action.
The plaintiff responded to the defendant's motion to vacate the judgment, asserting that it had relied on the judgment in the foreclosure action, which contained jurisdictional findings that all of the defendants, including Charles J. Thill, Jr., had been duly and properly served and that the court had both jurisdiction of the parties and of the...
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