W. Suburban Bank v. Advantage Fin. Partners, LLC

• Decision Date: 17 November 2014
• Docket Number: No. 2–13–1146.,2–13–1146.
• Citation: 23 N.E.3d 370
• Parties: WEST SUBURBAN BANK, Plaintiff–Appellee, v. ADVANTAGE FINANCIAL PARTNERS, LLC, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

23 N.E.3d 370

WEST SUBURBAN BANK, Plaintiff–Appellee
v.
ADVANTAGE FINANCIAL PARTNERS, LLC, Defendant–Appellant.

No. 2–13–1146.

Appellate Court of Illinois, Second District.

Nov. 17, 2014.
Rehearing Denied Dec. 31, 2014.

23 N.E.3d 372

Stephen D. Richek, of Leading Legal LLC, and Stewart T. Kusper and Paul C. Mallon, Jr., both of Kusper Law Group, Ltd., both of Chicago, for appellant.

Robert G. Black, of Law Offices of Robert G. Black, of Naperville, for appellee.

OPINION

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

¶ 1 The plaintiff, West Suburban Bank (WSB), issued a loan to the defendant, Advantage Financial Partners, LLC, and Advantage collateralized that loan with the mortgages of 23 properties in Cook, Du Page, and other counties. Advantage defaulted on the loan, and WSB filed foreclosure actions against the mortgaged properties. In almost all of the actions, a private detective agency called MPSI, Inc., was appointed and acted as a special process server. After WSB obtained judgments and the properties were sold, Advantage filed petitions under section 2–1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2–1401 (West 2012) ) to set aside the judgments for lack of personal jurisdiction. Advantage alleged that service was defective, because MPSI was not properly certified when its employees served process in the lawsuits. The trial court dismissed the petitions and Advantage appealed. We reverse and remand.

¶ 2 BACKGROUND

¶ 3 In 2005, WSB issued a $10 million revolving-credit promissory note to Advantage, secured by multiple mortgages on properties owned by Advantage in several counties. Advantage defaulted on the note in 2008.

¶ 4 Beginning in December 2008, WSB filed 23 foreclosure actions against Advantage on the properties that secured the promissory note. In all but one of these cases,¹

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WSB sought and obtained orders appointing MPSI, Inc., license No. 117–000774, as special process server, and MPSI employees served process upon Advantage. WSB subsequently obtained default judgments of foreclosure in all of the cases. In 2009, the properties were sold to WSB at sheriff's sales and the sales were confirmed by the court. WSB later sold the properties to third parties.

¶ 5 About four years later, in April 2013, Advantage filed section 2–1401 petitions for relief from judgment in all 23 cases. As relevant here, the petitions alleged that service was defective because MPSI was not certified to act as a process server at the time its employees served the summonses in the cases. Accordingly, the trial courts had never acquired personal jurisdiction over Advantage, and the orders subsequently entered in the cases were void. (The section 2–1401 petitions also alleged other defects in the service, but they are not relevant here in light of our disposition.)

¶ 6 WSB sought consolidation as to all of the cases and the supreme court granted it as to all but one case, a Cook County case. The 22 remaining cases were consolidated into the present case, No. 08–CH–4874, which proceeded before the circuit court of Du Page County. WSB then filed a motion to dismiss the section 2–1401 petitions.

¶ 7 During the briefing of the motion to dismiss, multiple exhibits were presented that established the following facts, all of which appear to be undisputed. MPSI was first licensed by the Department of Financial and Professional Regulation (Department) in 1994 under a different name; the name was changed to MPSI in 2000. The agency was founded by Alfred J. Chiappano, a licensed private detective himself. Chiappano was identified in government records as the licensed “private detective in charge” of MPSI.

¶ 8 On August 31, 2008, MPSI's license expired. It has never been renewed. Later that year, in November 2008, MPSI was involuntarily dissolved by the Secretary of State. Thus, when MPSI employees served process on Advantage in the cases herein, MPSI was neither licensed nor an Illinois corporation. (After Advantage filed its section 2–1401 petitions, MPSI sought and received reinstatement as an Illinois corporation. However, it never renewed its private detective agency license.) Chiappano's individual license remained valid at all times.

¶ 9 On September 24, 2013, the trial court heard oral argument and granted WSB's motion to dismiss Advantage's section 2–1401 petitions in 21 cases,² reasoning that, even though MPSI itself was not licensed at the time of service, its employees who served the summonses were licensed, and thus there was no defect in service. It also stated that allowing the section 2–1401 petitions to proceed more than five years after the properties were sold would be “inequitable.” Advantage appealed.

¶ 10 ANALYSIS

¶ 11 On appeal, Advantage raises several arguments as to why service was defective. However, as we find its first argument dispositive, we do not reach the others.

¶ 12 Advantage argues that, because MPSI was not a licensed private detective agency when its employees served process, service was defective. We agree. In explaining why, we begin with the plain language of the statute that governs who may

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serve process in Illinois, section 2–202 of the Code. 735 ILCS 5/2–202 (West 2012).

¶ 13 Subsection (a) of that statute provides that “[p]rocess shall be served by a sheriff” or, in counties with populations of less than 2 million, “process may be served, without special appointment, by a person who is licensed or registered as a private detective under the Private Detective, Private Alarm, Private Security, Fingerprint Vendor, and Locksmith Act of 2004 [ (Private Detective Act) (225 ILCS 447/5–5 et seq. (West 2012)) ] or by a registered employee of a private detective agency certified under that Act as provided in Section (a–5). ” (Emphasis added.) 735 ILCS 5/2–202(a) (West 2012).

¶ 14 Subsection (a–5) governs the service of process through special process servers appointed by the court, and it provides:

“Upon motion and in its discretion, the court may appoint as a special process server a private detective agency certified under the Private Detective * * * Act * * *. Under the appointment, any employee of the private detective agency who is registered under that Act may serve the process. The motion and the order of appointment must contain the number of the certificate issued to the private detective agency by the Department * * *. A private detective or private detective agency shall send, one time only, a copy of his, her, or its individual private detective license or private detective agency certificate to the county sheriff in each county in which the detective or detective agency or his, her, or its employees serve process, regardless of size of the population of the county. As long as the license or certificate is valid and meets the requirements of the Department * * *, a new copy of the current license or certificate need not be sent to the sheriff.” (Emphasis added.) 735 ILCS 5/2–202(a–5) (West 2012).

The provision also defines who is a “registered employee” of a private detective agency and requires the agency to maintain a list of such employees and to provide the list under certain circumstances. Id.

¶ 15 Of the 23 foreclosure cases filed by WSB, the great majority (15) were in Cook County, which has a population of more than 2 million. In those cases, WSB was required to rely on the sheriff's office to serve summons or else seek appointment of a special process server. As noted above, in 22 of the cases, WSB elected to seek the appointment of MPSI as a special process server under section 2–202(a–5) of the Code. The question before us is whether the resulting appointments of MPSI were valid under section 2–202(a–5), given the undisputed fact that MPSI's private detective agency license expired prior to those appointments and prior to the service of process.

¶ 16 In construing a statute, our task is to “ascertain and give effect to the legislature's intent.” Lieb v. Judges' Retirement System, 314 Ill.App.3d 87, 92, 247 Ill.Dec. 36, 731 N.E.2d 809 (2000). The best indicator of the legislature's intent is the plain language of the statute. Lee v. John Deere Insurance Co., 208 Ill.2d 38, 43, 280 Ill.Dec. 523, 802 N.E.2d 774 (2003). “When the statute's language is clear, it will be given effect without resort to other aids of statutory construction.” Id. We will not depart from the plain language of a statute by reading into it exceptions, limitations, or conditions that conflict with the express legislative intent. Petersen v. Wallach, 198 Ill.2d 439, 446, 261 Ill.Dec. 728, 764 N.E.2d 19 (2002). “One of the fundamental principles of statutory construction is to view all provisions of an enactment as a whole,” and thus “words and phrases must be interpreted in light of

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other relevant provisions of the statute.” J.S.A. v. M.H., 224 Ill.2d 182, 197, 309 Ill.Dec. 6, 863 N.E.2d 236 (2007).

¶ 17 In this case, the statute's language is clear: a court may appoint, as a special process server, only a private detective agency that is “certified” under the Private Detective Act...