APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION
534 N.E.2d 453, 179 Ill. App. 3d 129, 128 Ill. Dec. 271 1989.IL.67
Appeal from the Circuit Court of Cook County; the Hon. Anthony J. Scotillo, Judge, presiding.
PRESIDING JUSTICE FREEMAN delivered the opinion of the court. McNAMARA and WHITE, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FREEMAN
Plaintiff, Commonwealth Eastern Mortgage Company, filed a mortgage foreclosure action against defendant, Gregory Vaughn, in the circuit court of Cook County on July 23, 1987. The trial court granted plaintiff's motion for summary judgment on November 23, 1987. On March 16, 1988, defendant filed a motion under section 2-1401 of the Civil Practice Law (Ill. Rev. Stat. 1987, ch. 110, par. 2-1401) to vacate the judgment of foreclosure and sale. The trial court denied the motion on March 28, 1988. On April 25, 1988, defendant filed what the trial court treated as a second motion to vacate the foreclosure judgment and to stay all proceedings. The trial court denied that motion on April 29, 1988. Defendant appeals from the denial of this second motion to vacate.
Defendant's section 2 -- 1401 motion to vacate the foreclosure judgment alleged that neither he nor his attorney received notice of the motion for summary judgment although they were both entitled to notice. It further alleged that the "Notice of Motion" for summary judgment filed on November 23, 1987, was defective on its face in that the "Proof of Service By Mail" portion thereof stated that the notice was mailed on November 23, the date of the hearing for summary judgment. It also alleged that defendant's attorney first learned of the entry of judgment when he received a notice of motion to amend the judgment in January 1988. Finally, the motion alleged that the judgment deprived defendant of an opportunity to assert "any defenses or affirmative matters."
Plaintiff's response to the motion to vacate asserted that the notice of motion for summary judgment was served upon defendant's counsel on November 13, 1987. Attached to the response was the affidavit of the scrivener of the notice of motion, a paralegal for plaintiff's attorneys. The affiant stated that she mailed the notice of motion on November 13, 1987, to defendant's counsel at his address and that she inadvertently typed" November 23, 1987" as the mailing date. Plaintiff further contended that Supreme Court Rule 11 (107 Ill. 2d R. 11) required only service of the notice of motion upon defendant's counsel, not defendant as well, and that it sent the notice to the former in compliance with the rule. Finally, plaintiff asserted that defendant had not met the requirements under section 2 -- 1401 by failing to show due diligence and a meritorious defense to plaintiff's claim.
"[The] affidavits concerning the scrivener's error and the other documents" convinced the trial court that the notice of the motion for summary judgment was mailed on November 13, "which was sufficient time." The court also concluded that defendant's allegations of a meritorious defense were insufficient, especially in view of the failure of defendant's amended answer to the complaint to allege any defenses. As such, the trial court denied the motion to vacate.
On appeal, defendant contends that the judgment of foreclosure was entered without proper notice either to him or his attorney and is therefore void. Defendant asserts that the notice of motion for summary judgment filed by plaintiff failed, on its face, to meet the requirements therefor under Supreme Court Rules 11 and 12. (107 Ill. 2d Rules 11, 12; Ill. Rev. Stat. 1987, ch. 110, par. 2-620.) Specifically, defendant asserts that the proof of service by mail portion of the notice form "implies and indicates" that the form was mailed to defendant at his attorney's address. Defendant notes that Supreme Court Rule 11 required, inter alia, that service of the notice be mailed to defendant's attorney at the attorney's business address or to defendant at his business address or residence.
Defendant also repeats his argument below that the proof of service reflects that the notice was mailed on November 23, 1987, the date upon which plaintiff was going to move for summary judgment. Defendant thus asserts that the notice was insufficient under Supreme Court Rule 12, providing, inter alia, that service by mail is complete four days after mailing. He also asserts that it violated Cook County Circuit Court Rule 2.1(e), providing that summary judgment motions will not be heard until 10 days after service of the notice of motion under Supreme Court Rule 11.
Proceeding from the defects in the notice of motion, defendant concludes that it is clear that neither he nor his attorney received notice of the entry of summary judgment for plaintiff until January 25, 1988, when his attorney received notice of the motion to amend the foreclosure judgment.
We agree with defendant that the notice of motion is defective under Supreme Court Rule 11, although not entirely for the reasons stated by defendant.
The notice of motion contains, at the very top of the form, the names of the parties. The name and address of plaintiff's attorney appear in the "To" portion just below the caption of the case. However, in the "Proof of Service By Mail" portion it indicates that it was mailed to the "above-named defendant" at "his address," not, as defendant contends, at his attorney's address. Supreme Court Rule 11 provides that, if a party is represented by an attorney of record, service "shall be made upon the attorney." Thus, service should have been made upon ...