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State Bank of Lake Zurich v. Thill

OPINION FILED SEPTEMBER 17, 1986.

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).



Appeal from the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court of Lake County, the Hon. George W. Pease, Judge, presiding. JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:

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) 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.] "State of Illinois ) ) SS County of Lake )

I, Michael Syzdelko, 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 ...


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