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JoJan Corporation v. Brent

October 20, 1999

JOJAN CORPORATION, PLAINTIFF-APPELLEE,
v.
ROBERT BRENT, DEFENDANT-APPELLANT.



The opinion of the court was delivered by: Justice Cerda

Appeal from the Circuit Court of Cook County.

Honorable Stephen Schiller, Judge Presiding.

MODIFIED ON DENIAL OF REHEARING

In this case, defendant, Robert Brent, seeks a declaration that he is the legal owner of property foreclosed on and acquired at a judicial sale by plaintiff, JoJan Corporation, where the foreclosure judgment entered by the circuit court in February 1985 was subsequently set aside as void.

In April 1984, JoJan filed a three-count complaint against Brent and several other parties (collectively "the defendants"), to foreclose two mortgage notes and a mechanic's lien it allegedly acquired by assignment from New World Construction, Inc. (New World), and R.M.C., Inc., respectively, on real property in which the defendants possessed an ownership interest. The complaint also sought recovery for damages as a result of the defendants' alleged breach of contract in not paying the amounts secured by the foregoing instruments.

Because the defendants failed to appear or otherwise respond, the circuit court entered a default judgment of foreclosure on February 13, 1985, in favor of JoJan. The court determined, in relevant part, that service of process by publication had been properly effectuated upon the defendants, and that JoJan was the legal holder of the mortgage notes and "the claim of R.M.C. *** for mechanic lien in the sum of $3,066.54, which *** is *** good and valid." The court further determined the original mechanic's lien of R.M.C. had been "lost or misplaced and [could not] be found" by JoJan, "and in its stead, *** [a] duplicate stamped cop[y] of said *** Mechanic Lien, [had been presented] showing said document[] to have been properly recorded." The court noted that "true copies [of the security instruments] ha[d] been offered in evidence," and were taken by the court as proof thereof. The court ordered the sale of the subject property to satisfy the outstanding debt, and directed the issuance of a sheriff's deed conveying title to the successful bidder in the event the property remained unredeemed by its owners.

The subject property was sold to JoJan at a judicial sale held in March 1985. On April 9, 1985, the circuit court entered an order approving the sheriff's report of sale and distribution of the proceeds. The defendants failed to exercise their redemption rights within the time set by the court, and on October 1, 1985, JoJan received the sheriff's deed issuing it title to the subject property.

On October 11, 1985, Brent filed a special and limited appearance contesting the circuit court's jurisdiction over him at the time the judgment of foreclosure was entered. Following an evidentiary hearing in January 1986, the circuit court found that Brent had been properly served by publication. The court denied Brent's special appearance and upheld the conveyance of the subject property to JoJan. Brent filed an amended motion for reconsideration, which was denied on April 4, 1986.

Three days after the denial of Brent's amended motion to reconsider, on April 7, 1986, JoJan quitclaimed the subject property to a third-party, Jay Shavin.

Brent did not seek review of either the orders denying his special appearance or his motion to reconsider that decision.

On April 28, 1986, Brent instituted a collateral attack on the February 1985 foreclosure judgment by filing a motion to expunge said judgment on the basis that it was void for want of jurisdiction. In his motion, Brent asserted inter alia that JoJan's suit to foreclose the mechanic's lien was not brought within two years of the completion date of R.M.C.'s work as required by section 9 of the Mechanic's Lien Act (Act) (Ill. Rev. Stat. 1979, ch.82, par.9)). According to Brent, the actual completion date of R.M.C's work occurred on March 5, 1982, and not April 15, 1984, as alleged by JoJan in its complaint. In support of this contention, Brent presented a copy of a claim for mechanic's lien filed against the subject property by R.M.C.. That claim had been presented as an exhibit to a complaint filed earlier by R.M.C. against Brent to foreclose on the same mechanic's lien claimed by JoJan, and states that "the last of *** material, fixtures, labor and services was so furnished, delivered and performed on the 5th day of March, 1982." Thus, Brent argued the court lacked jurisdiction to foreclose on the property, and consequently the February 1985 judgment was void.

In response, JoJan filed a special and limited appearance asserting that service of process upon it was necessary before the court could rule on Brent's motion. The court agreed and quashed the motion. Brent filed a notice of appeal from this order in September 1986.

In May 1988, and during the pendency of the appeal, Shavin transferred the subject property to Harris Trust and Savings Bank (Harris Trust), as trustee of trust number 44233, for $107,000. The deed conveyed to Harris Trust was recorded with the recorder's office on May 25, 1988.

On the original appeal, Brent claimed inter alia that the judgment of foreclosure was void for lack of jurisdiction. This court found Brent's motion and the materials submitted in support thereof presented a question of fact as to whether the circuit court had subject matter jurisdiction to foreclose on JoJan's asserted mechanic's lien. This court held that the foreclosure judgment would be void if the date reflected by R.M.C.'s pleadings was indeed the completion date. Therefore, the judgment of foreclosure was reversed, and the case was remanded for a determination of whether JoJan's action was barred for failure to be brought within the time specified by ...


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