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State Bank v. Thill

OPINION FILED MAY 30, 1985.

STATE BANK OF LAKE ZURICH, PLAINTIFF AND RESPONDENT-APPELLEE,

v.

CHARLES J. THILL, JR., DEFENDANT AND PETITIONER-APPELLANT (NANCY THILL ET AL., DEFENDANTS; FIRST NATIONAL BANK OF DES PLAINES, TRUSTEE, ET AL., INTERVENING RESPONDENTS-APPELLEES).



Appeal from the Circuit Court of Lake County; the Hon. George W. Pease, Judge, presiding.

PRESIDING JUSTICE NASH DELIVERED THE OPINION OF THE COURT:

Defendant-petitioner, Charles J. Thill, Jr., appeals from an order of the circuit court which denied his motion to vacate a judgment of foreclosure and sale of certain real estate entered in favor of plaintiff, State Bank of Lake Zurich. Defendant contends the trial court lacked personal jurisdiction to enter the judgment of foreclosure and sale against him as he was not served with process, and that First National Bank of Des Plaines, as trustee, Robert Christian, Edwin and Gail Magoon, who claimed subsequent interests in the subject property, were erroneously permitted to intervene and granted judgment on the pleadings against defendant.

The record consists of the pleadings, motions and supporting affidavits of the parties, which disclose that defendant Charles Thill, with his wife Nancy and their children, resided in Lake Zurich in a single-family home against which plaintiff State Bank held a mortgage. On May 24, 1982, the mortgage being five months in arrears, plaintiff commenced foreclosure proceedings against the Thills and unknown owners for the $38,257.60 then due. Summons was issued and, on motion of plaintiff's attorney, Michael Szydelko, Steven J. Phillips and others were authorized by the circuit court to serve process in this cause. See section 13.1(1) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 13.1(1)), which is now section 2-202(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2-202(a)).

The return of service filed in the record with the summons is as follows:

(We note affiant therein states he served a copy of a complaint on Charles and Nancy Thill by leaving a copy with Nancy, but does not state that summons was served on either of them or that a copy of the summons was mailed to defendant.)

The record also discloses that Nancy Thill, who is not a party to this appeal, entered her written appearance as defendant on July 13, 1982, together with a handwritten statement that she realized she was behind in payments, but believed she could pay off the debt within 30 to 40 days. No further appearance, answer or pleading was filed by either of the Thills prior to entry of judgment of foreclosure.

Plaintiff State Bank thereafter on September 13, 1982, after giving notice by mail to Nancy Thill, presented a motion for summary judgment supported by the affidavit of Ronald Spiekout, an officer of the bank. It recited, inter alia, that Charles and Nancy Thill were in default of their mortgage to plaintiff for principal, interest, costs and attorney's fees of $41,463.75 and plaintiff was entitled to judgment as prayed for in the complaint. The trial court granted summary judgment of foreclosure and sale that same day finding, as relevant to this appeal, that defendants Charles and Nancy Thill were each served with process of summons; that Charles Thill failed to appear or plead to the complaint; that Nancy Thill appeared and filed a pleading; and, that the court had jurisdiction over all of the parties. As a part of its judgment order, the trial court specifically found that both Charles and Nancy Thill were personally served with process on June 11, 1982.

The property was ordered to be sold by the sheriff to satisfy the judgment and was so sold to plaintiff State Bank on September 13, 1982, for $42,518.24, leaving no deficiency, and on October 18, 1982, the sheriff's report of sale and satisfaction of the judgment was approved by the trial court.

Thereafter, on October 31, 1983, over one year later, petitioner-defendant, Charles J. Thill, Jr., entered his special and limited appearance to present a motion to vacate the judgment of foreclosure and sale of the property as to him. The motion alleged summons was served only on Nancy Thill and not on Charles Thill, either personally or by substituted service, and the judgment and sale were void with respect to him as the court lacked personal jurisdiction over this defendant.

Defendant's motion was supported by his affidavit in which he stated, inter alia, that he was never served with a summons or complaint either personally or by mail; that he first became aware of this litigation by a telephone call on October 20, 1983, at his place of employment from Bob Christian who said he "hated to have or cause me to be evicted" from the home in Lake Zurich; that affiant was not advised by his wife Nancy Thill, or any other person, of the foreclosure proceedings until that day; that after the call he talked to his wife, with whom he has continuously resided since 1966, and she then told him of the foreclosure proceedings; that since their marriage his wife has exclusively handled all marital- and family-related payments, including mortgage and tax matters, and affiant has never done so; that he had no knowledge of an arrearage and had sufficient funds for payment if he had known.

Nancy Thill also supported the motion to vacate with her affidavit stating she exclusively handled family financial matters and had not informed her husband of the mortgage arrearage; that on June 11, 1982, a man came to their home and handed her several sheets of paper, saying he was sorry to do so, but not explaining their content or that the papers were for Charles Thill; that no complaint or summons came to the home by mail; that she never informed her husband of the complaint for foreclosure or the papers received nor did she advise him of her pro se entry of appearance in the foreclosure action.

On October 31, 1983, defendant also filed a lis pendens notice with the circuit clerk and county recorder.

Plaintiff State Bank's response to the motion to vacate noted the judgment of foreclosure had found that Charles and Nancy Thill were each served with process of summons. Plaintiff also acknowledged the return of the process server indicates substitute abode service on Charles Thill by leaving a copy with Nancy Thill, but failed to show that a copy of the summons was mailed to Mr. Thill. In support, plaintiff attached the affidavit of Steven Phillips who, together with Michael Szydelko, had been appointed as a special process server in this case. Phillips stated that on June 11 or 12, 1982, he received the return of process executed by Szydelko which indicated personal service on Nancy Thill and substitute abode service on Charles Thill; that Phillips delivered the return of process to plaintiff's attorney and received from him an additional copy of the complaint and summons in this case which Phillips then mailed, with proper postage, to Charles Thill at his Lake Zurich home address on June 14, 1982, but did not complete the return of process showing the mailing.

The affidavit of Michael Szydelko was also offered by plaintiff, in which he stated he had delivered a summons and complaint to Nancy Thill on June 11, 1982, at her home and read the caption and title of the complaint to her stating they were for her and her husband. Szydelko said he delivered to Phillips the executed return of process indicating personal service on Nancy Thill and substituted abode service on Charles Thill, but did not ...


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