U.S. Bankm N.A. v. Dzis

• Decision Date: 03 August 2011
• Docket Number: No. 1–10–2812.,1–10–2812.
• Citation: U.S. Bankm N.A. v. Dzis, 354 Ill.Dec. 390, 957 N.E.2d 1183, 2011 IL App (1st) 102812 (Ill. App. 2011)
• Parties: U.S. BANK, N.A., Plaintiff–Appellee, v. Yaroslav DZIS, Defendant–Appellant.
• Court: Appellate Court of Illinois

2011 IL App (1st) 102812

354 Ill.Dec. 390

957 N.E.2d 1183

U.S. BANK, N.A., Plaintiff–Appellee,

v.Yaroslav DZIS, Defendant–Appellant.

No. 1–10–2812.

Appellate Court of Illinois, First District, Third Division.

June 15, 2011.Rehearing Denied July 29, 2011.As Modified Aug. 3, 2011.

Law Offices of Christopher Kruger, Evanston (Christopher Kruger, of counsel), Stephen Richek, Chicago (Stephen Richek, of counsel), for appellant.

Goldberg Kohn, Ltd., Chicago (Steven A. Levy, David J. Chizewer, Deborah Rzasnicki, of counsel), for appellee.

OPINION

Justice NEVILLE delivered the judgment of the court, with opinion.

[354 Ill.Dec. 393] ¶ 1 This case centers on the validity of a general order entered by the presiding judge of the chancery division of the circuit court of Cook County. The general order allowed law firms to obtain standing orders permitting them to arrange for certain detective agencies, rather than the sheriff, to serve process on defendants in mortgage foreclosure cases. We hold that (1) the presiding judge had authority to enter the general order, (2) the order did not impermissibly privatize a service public officials usually perform, and (3) the general order did not violate the rights to due process and equal protection of defendants in mortgage foreclosure cases.

¶ 2 BACKGROUND

¶ 3 On April 23, 2008, U.S. Bank loaned Yaroslav Dzis $375,250 in exchange for a mortgage on property Dzis owned in Chicago. On September 10, 2009, U.S. Bank, through its lawyers, Codilis & Associates, sued to foreclose its mortgage. That same day Codilis filed a motion for appointment of a special process server. Codilis attached to the motion a standing order, entered about two weeks before U.S. Bank filed this lawsuit, in which the court appointed four private detective agencies to act as special process servers for any mortgage foreclosure cases filed by Codilis between August 25, 2009, and November 30, 2009. Based upon that order, one of the listed detective agencies attempted to serve process on Dzis at several locations, including the mortgaged property. The special process server presented affidavits detailing all of its unsuccessful attempts to serve Dzis personally. From October 9, 2009, through October 23, 2009, the Chicago Daily Law Bulletin published notice of the foreclosure lawsuit.

¶ 4 The trial court entered a default order against Dzis because he failed to appear in response to the service by publication and the efforts to serve him personally. The court entered a judgment of foreclosure on February 26, 2010, setting the redemption period to end on April 28, 2010. On March 18, 2010, the Judicial Sales Corporation mailed to Dzis's addresses a notice of the impending foreclosure sale. The Judicial Sales Corporation sold the property to U.S. Bank at a public auction held on April 29, 2010.

¶ 5 Dzis first appeared in court on May 6, 2010. He moved to quash service of process on grounds that the standing order for appointment of a special process server violated the Illinois Constitution and several statutes, arguing that the court had no authority to enter an order for a special process server on August 25, 2009, two weeks before U.S. Bank filed its complaint against Dzis. Codilis explained that it followed the procedure established in General Administrative Order 2007–03 (the GAO) for using special process servers in mortgage foreclosure cases. The presiding judge of the chancery division entered the GAO in 2007.

¶ 6 The trial court denied the motion to quash, and on September 16, 2010, the court entered an order approving the sale of the property to U.S. Bank. Dzis now appeals.

¶ 7 ANALYSIS

¶ 8 Rule 341

¶ 9 At the outset, we note several improprieties in the brief Christopher Kruger filed on behalf of Dzis in this appeal. Kruger asserts, in the certificate of compliance attached to the brief, that the brief conforms to the requirements of subsections (a) and (b) of Supreme Court Rule 341. Ill. Sup. Ct.R. 341 (eff. July 1, 2008). He does not explain why he felt no need to comply with other subsections of Rule 341. The brief includes no statement of the issues presented (see Ill. S.Ct. R. 341(h)(3)) and no statement of jurisdiction (see Ill. Sup. Ct.R. 341(h)(4)). Because the brief includes no appendix (see Ill. S.Ct. R. 341(h)(9)), it also lacks a copy of the judgment and a table of contents of the record on appeal (see Ill. S.Ct. R. 342(a) (eff.Jan.1, 2005)).

¶ 10 We adopt the pertinent reasoning from Niewold v. Fry, 306 Ill.App.3d 735, 737, 239 Ill.Dec. 785, 714 N.E.2d 1082 (1999):

“The rules of procedure concerning appellate briefs are rules and not mere suggestions. [Citation.] It is within this court's discretion to strike the [appellants'] brief and dismiss the appeal for failure to comply with Rule 341 [citation]. [Citation.] However, * * * because the record is not long and the issues are simple, we will not penalize the [appellant] so severely for the lapses of [his] counsel.”

We choose to address the appeal on its merits despite the many ways in which the brief violates the rules. But appellate attorneys must remember that this court has discretion to dismiss an appeal when counsel fails to comply with the rules.

¶ 11 Jurisdiction and Standard of Review

¶ 12 Supreme Court Rule 301 (Ill. S.Ct. R. 301 (eff.Feb.1, 1994)) gives this court jurisdiction to hear this appeal from the order approving the sale of the mortgaged property. See In re Marriage of Verdung, 126 Ill.2d 542, 555, 129 Ill.Dec. 53, 535 N.E.2d 818 (1989).

¶ 13 On appeal Dzis argues only that the court should have quashed service of process. Because the court denied the motion to quash based solely on documentary evidence, we review the order denying the motion de novo. Equity Residential Properties Management Corp. v. Nasolo, 364 Ill.App.3d 26, 31, 301 Ill.Dec. 467, 847 N.E.2d 126 (2006).

¶ 14 Dzis does not deny that Codilis followed the GAO when it obtained the standing order dated August 25, 2009, which apparently authorized Codilis to use the detective agency to serve process on Dzis. Dzis does not deny that the special process server followed established procedures for serving process on Dzis, and for using service by publication as a substitute when the special process server failed to serve process on the defendant personally. Dzis challenges only the validity of the GAO, arguing that the court lacked authority to enter the GAO and the GAO deprives mortgagors of procedural due process, substantive due process, and equal protection of the laws.

¶ 15 Standing

¶ 16 U.S. Bank contends that Dzis lacks standing to challenge the GAO. The court obtained jurisdiction over Dzis through service by publication. The GAO set procedures only for having an approved agency serve process in certain cases; it had no effect on procedures for service by publication.

¶ 17 Our supreme court established the fundamental standard for determining whether a party has standing to challenge the actions of government officials. “ One who is adversely affected in fact by governmental action has standing to challenge its legality, and one who is not adversely affected in fact lacks standing.” (Emphasis in original.) Greer v. Illinois Housing Development Authority, 122 Ill.2d 462, 488, 120 Ill.Dec. 531, 524 N.E.2d 561 (1988).

¶ 18 Dzis claims that the GAO adversely affected him because the court would not have jurisdiction to foreclose the mortgage on his property but for the GAO. If the GAO here has no legal effect, then U.S. Bank never obtained the requisite permission to attempt service of process by a special process server in this case, and, therefore, U.S. Bank never properly attempted personal service on Dzis. Section 2–206 of the Illinois Code of Civil Procedure (Code) permits service by publication only when the plaintiff presents an affidavit showing that “the defendant resides or has gone out of this State, or on due inquiry cannot be found, or is concealed within this State, so that process cannot be served upon him or her.” 735 ILCS 5/2–206 (West 2008). The trial court should not lend credence to an assertion that process cannot be served on a defendant if the plaintiff has not even attempted proper service of process. If the GAO did not validly permit Codilis to obtain an order for appointment of special process servers for all mortgage foreclosure cases Codilis filed between August 25, 2009, and November 30, 2009, then the trial court here should not have permitted service on Dzis by publication. Accordingly, we find that Dzis has standing to challenge the validity of the GAO.

¶ 19 Authority to Enter the GAO

¶ 20 Supreme Court Rule 21(c) authorizes the chief judge of a circuit court to “enter general orders in the exercise of his or her general administrative authority.” Ill. S.Ct. R. 21(c) (eff.Dec.1, 2008). Illinois courts have interpreted the rule to permit the chief judge of a circuit court to delegate his authority to enter general orders to the presiding judges of the circuit court's divisions. Blair v. Mackoff, 284 Ill.App.3d 836, 220 Ill.Dec. 78, 672 N.E.2d 895 (1996); People v. Hattery, 183 Ill.App.3d 785, 132 Ill.Dec. 58, 539 N.E.2d 368 (1989). In Blair, 284 Ill.App.3d at 843, 220 Ill.Dec. 78, 672 N.E.2d 895, the appellate court held that the presiding judge of the domestic relations division of the circuit court of Cook County had authority to promulgate a general administrative order, and in Hattery, 183 Ill.App.3d at 800–01, 132 Ill.Dec. 58, 539 N.E.2d 368, the appellate court held that the presiding judge of the criminal division of the circuit court had similar authority. Accordingly, we hold that Rule 21(c) authorized the presiding judge of the chancery division to enter general orders in the exercise of her general administrative authority.

¶ 21 Dzis argues that the GAO conflicts with section 2–202 of the Code. The GAO provides:

“For many years, service of summons in most mortgage foreclosure cases * * * has been...