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U.S. Bank, N.A v. Yaroslav Dzis

June 15, 2011

U.S. BANK, N.A.,
PLAINTIFF-APPELLEE,
v.
YAROSLAV DZIS,
DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. 09 CH 032826 Honorable Darryl B. Simko, Judge Presiding.

The opinion of the court was delivered by: Justice Neville

JUSTICE NEVILLE delivered the opinion of the court, with judgment. Presiding Justice Quinn and Justice Steele concurred in the opinion and judgment.

OPINION

This case centers on the validity of a general order entered by the presiding judge of the chancery division of the circuit court of Cook County. The general order allowed law firms to obtain standing orders permitting them to arrange for certain detective agencies, rather than the sheriff, to serve process on defendants in mortgage foreclosure cases. We hold that (1) the presiding judge had authority to enter the general order, (2) the order did not impermissibly privatize a service public officials usually perform, and (3) the general order did not violate the rights to due process and equal protection of defendants in mortgage foreclosure cases.

BACKGROUND

On April 23, 2008, U.S. Bank loaned Yaroslav Dzis $375,250 in exchange for a mortgage on property Dzis owned in Chicago. On September 10, 2009, U.S. Bank, through its lawyers, Codilis & Associates, sued to foreclose its mortgage. That same day Codilis filed a motion for appointment of a special process server. Codilis attached to the motion a standing order, entered about two weeks before U.S. Bank filed this lawsuit, in which the court appointed four private detective agencies to act as special process servers for any mortgage foreclosure cases filed by Codilis between August 25, 2009, and November 30, 2009. Based upon that order, one of the listed detective agencies attempted to serve process on Dzis at several locations, including the mortgaged property. The special process server presented affidavits detailing all of its unsuccessful attempts to serve Dzis personally. From October 9, 2009, through October 23, 2009, the Chicago Daily Law Bulletin published notice of the foreclosure lawsuit.

The trial court entered a default order against Dzis because he failed to appear in response to the service by publication and the efforts to serve him personally. The court entered a judgment of foreclosure on February 26, 2010, setting the redemption period to end on April 28, 2010. On March 18, 2010, the Judicial Sales Corporation mailed to Dzis's addresses a notice of the impending foreclosure sale. The Judicial Sales Corporation sold the property to U.S. Bank at a public auction held on April 29, 2010.

Dzis first appeared in court on May 6, 2010. He moved to quash service of process on grounds that the standing order for appointment of a special process server violated the Illinois Constitution and several statutes, arguing that the court had no authority to enter an order for a special process server on August 25, 2009, two weeks before U.S. Bank filed its complaint against Dzis. Codilis explained that it followed the procedure established in General Administrative Order 2007-03 (the GAO) for using special process servers in mortgage foreclosure cases. The presiding judge of the chancery division entered the GAO in 2007.

The trial court denied the motion to quash, and on September 16, 2010, the court entered an order approving the sale of the property to U.S. Bank. Dzis now appeals.

ANALYSIS

Rule 341

At the outset, we note several improprieties in the brief Christopher Kruger filed on behalf of Dzis in this appeal. Kruger asserts, in the certificate of compliance attached to the brief, that the brief conforms to the requirements of subsections (a) and (b) of Supreme Court Rule 341. Ill. Sup. Ct. R. 341 (eff. July 1, 2008). He does not explain why he felt no need to comply with other subsections of Rule 341. The brief includes no statement of the issues presented (see Ill. S. Ct. R. 341(h)(3)) and no statement of jurisdiction (see Ill. Sup. Ct. R. 341(h)(4)). Because the brief includes no appendix (see Ill. S. Ct. R. 341(h)(9)), it also lacks a copy of the judgment and a table of contents of the record on appeal (see Ill. S. Ct. R. 342(a) (eff. Jan. 1, 2005)).

We adopt the pertinent reasoning from Niewold v. Fry, 306 Ill. App. 3d 735, 737 (1999):

"The rules of procedure concerning appellate briefs are rules and not mere suggestions. [Citation.] It is within this court's discretion to strike the [appellants'] brief and dismiss the appeal for failure to comply with Rule 341 [citation]. [Citation.] However, *** because the record is not long and the issues are simple, we will not penalize the [appellant] so severely for the lapses of [his] counsel."

We choose to address the appeal on its merits despite the many ways in which the brief violates the rules. But appellate attorneys must remember that this court has discretion to dismiss an ...


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