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Bank of New York v. Unknown Heirs and Legatees

December 5, 2006

BANK OF NEW YORK, ACTING SOLELY AS TRUSTEE FOR EQCC TRUST 2001-2, PLAINTIFF-APPELLEE, (SHEILA PORTLOCK AND DEWEY J. HALL, INTERVENORS-APPELLEES).
v.
UNKNOWN HEIRS AND LEGATEES, IF ANY, OF RUTH HATCH A/K/A RUTH SLATER, UNKNOWN OWNERS, AND NONRECORD CLAIMANTS, DEFENDANTS-APPELLANTS



Appeal from the Circuit Court of Cook County, Chancery Division No. 03 CH 12460. Honorable Martin S. Agren Judge Presiding.

The opinion of the court was delivered by: Justice Hall

Defendant Jesse M. Hatch appeals, pro se, the trial court's order granting the motion to reconsider of plaintiff, Bank of New York, acting solely in its capacity as trustee for EquiCredit Corporation(EQCC) Trust 2001-2, and the motion to vacate of intervenors Sheila Portlock and Dewey J. Hall. For the reasons that follow, we reverse and remand.

This appeal arises from proceedings relating to a foreclosure complaint filed by plaintiff bank. On July 28, 2003, plaintiff filed a complaint to foreclose a mortgage secured by residential property of the decedent Ruth Hatch, also known as Ruth Slater.

The complaint named as defendants the unknown heirs and legatees, if any, of Ruth Hatch, a/k/a Ruth Slater, unknown owners and nonrecord claimants. On November 7, 2003, plaintiff filed an affidavit as required by section 2-206(a) the Code of Civil Procedure (Code) (735 ILCS 5/2-206(a) (West 2004)), for service by publication. Plaintiff then served the unknown heirs of Ruth Hatch by publication in the Chicago Daily Law Bulletin on November 11, 18, 25, 2003.

On December 4, 2003, defendant, an inmate currently serving a natural-life sentence at the Joliet Correctional Center, filed a pro se motion*fn1 to dismiss the foreclosure complaint, alleging that he was one of Ruth Hatch's heirs (her son) and that service by publication was insufficient as to him because plaintiff failed to conduct a proper investigation to locate his whereabouts and effect personal service upon him prior to service by publication. Attached to the motion was an affidavit from defendant averring that he mailed a copy of the motion to plaintiff's attorneys' office.

On December 8, 2003, defendant wrote the clerk of the court inquiring as to the status of his motion to dismiss. On December 12, 2003, another of Ruth Hatch's sons, Hosie Hatch, filed an answer and appearance, along with an application to sue or defend as an indigent person.

On January 14, 2004, plaintiff mailed defendant a notice of motion advising him that the case was set for hearing in February 2004, at which time plaintiff would move for entry of orders for summary judgment, default, judgment of foreclosure and sale, and appointment of a foreclosure sale officer.

On February 3, 2004, defendant filed a supplemental motion to dismiss for insufficiency of service of process. In the supplemental motion, defendant argued that plaintiff's pleadings were not signed by an attorney of record and therefore should be stricken. He also argued that the action should be dismissed because the insufficient service defrauded defendants out of their right to be served with copies of the summons and complaint thereby preventing them from setting forth reasonable and informed answers and defenses.

On February 5, 2004, at a hearing on plaintiff's motion for judgment of foreclosure and sale, counsel for defendant's brother, Elijah R. Hatch, was granted leave to file substitute appearance on his behalf and given seven days to answer or otherwise plead. The matter was then continued to February 26, 2004.

On February 26, 2004, a judgment for foreclosure and sale and related orders were entered. On the same date, the trial court also entered summary judgment in favor of plaintiff and against Hosie Hatch and Elijah R. Hatch. The trial court entered the judgment for foreclosure and sale without ruling upon defendant's prior motion to dismiss and supplemental motion to dismiss.

Elijah R. Hatch was appointed the supervised administrator of Ruth's estate on April 8, 2004. On May 28, 2004, defendant again wrote the clerk of the circuit court inquiring as to whether his pro se motions to dismiss had been ruled upon and if not, to alert the trial court to his inquiry and request for a ruling in the matter.

On July 13, 2004, the subject property was sold at auction to third-party bidder Thuruthikara Kurian for an amount in excess of the debt secured by the property. The judicial sale was approved by the trial court on August 19, 2004, with a 30-day stay on possession.

On September 7, 2004, defendant filed a motion to vacate the judgment of foreclosure and sale. On October 15, 2004, he filed a motion for hearing and/or ruling upon his motion for relief from judgment. The trial court maintained it first became aware of defendant's existence the first week of November 2004, when a letter from defendant postmarked September 28, 2004, made its way to the court.

On December 16, 2004, Thuruthikara Kurian sold the subject property to Sheila Portlock and Dewey J. Hall ...


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