of either joining "unknown owners and non-record claimants" as defendants or seeking to bind those parties by publication (a subject discussed at some length by Judge Marshall and expanded upon in this opinion).
Now another of this Court's colleagues, Honorable Charles Norgle, has issued a recent memorandum order in Home Savings of America, F.A. v. American National Bank & Trust Company of Chicago, 762 F. Supp. 240 (N.D. Ill. 1991), expressing his agreement with the analysis employed by this Court and Judge Marshall and his disagreement with Judge Leighton's reasoning.
This Court of course continues to agree with that result, but it finds itself troubled by one possible implication -- though perhaps unintended -- of Judge Norgle's Home Savings opinion. Because subject matter jurisdiction is nonwaivable and must therefore be addressed at the outset of any newly-filed action,
this opinion is being issued sua sponte in this new foreclosure suit.
No mortgagee can evade the thrust of this Court's John Hancock case and Judge Marshall's General Electric Credit opinion by the end-run device of not naming "unknown owners and non-record claimants" as defendants, while at the same time seeking to bind them by filing an appropriate affidavit and proceeding via publication as permitted by Ill. Rev. Stat. ch. 110, paras. 2-413 and 15-105 as to pre-July 1, 1987 mortgages (see id. para. 15-1106(f)) and 15-1502 as to later mortgages. But any mortgagee clearly remains free to eschew any binding determination of the rights and interests of any unknown owners and non-record claimants by pursuing neither of those avenues. That does not differ in concept or effect from a situation in which a mortgagee, though inadvertence or otherwise, does not join as a party defendant any known or knowable claimant (a junior lienholder, a tenant or anyone else), in which event the purchaser at the foreclosure sale ends up with title encumbered by the rights of any such non-joined claimants.
And that result is not altered in legal terms if, for example, a mortgagee is successful in persuading a title insurer to provide insurance coverage to the purchaser at the foreclosure sale despite the mortgagee's deliberate omission, from the named defendants in the proceedings, of the truly unknown risks -- the "unknown owners and non-record claimants."
Thus this Court remains of the same view that it originally expressed in its John Hancock opinion. And it does not view any aspects of Judge Norgle's recent Home Savings opinion as threatening this Court's subject matter jurisdiction in cases such as this one. Although "unknown owners and non-record claimants must be considered to be more than nominal parties" ( Home Savings, 762 F. Supp. at 242) where they are either named as parties or are sought to be bound by publication, and although this Court therefore continues to disagree with Judge Leighton's treatment of the issue, federal subject matter jurisdiction remains where neither of those things is true. This action therefore remains pending.