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Deutsche Bank National Trust Company v. Carolyn A. Hall-Pilate and John J. Pilate

September 2, 2011

DEUTSCHE BANK NATIONAL TRUST COMPANY,
PLAINTIFF-APPELLEE,
v.
CAROLYN A. HALL-PILATE AND JOHN J. PILATE, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County 07 CH 24019 Honorable Jesse G. Reyes, Judge Presiding.

The opinion of the court was delivered by: Justice McBRIDE

JUSTICE McBRIDE delivered the judgment of the court, with opinion. Justice Garcia and Justice R.E. Gordon concurred in the judgment and opinion.

OPINION

¶ 1 Plaintiff Deutsche Bank National Trust Company filed a mortgage foreclosure action against defendants Carolyn A. Hall-Pilate and John J. Pilate. The special process server executed two returns of service indicating that John Pilate was served with a summons and complaint for himself and on behalf of his wife, Carolyn Hall-Pilate. Several months after the entry of final judgment, defendants filed a motion to quash service, asserting that Pilate was out of state when the service of process occurred. The trial court denied the motion. On appeal, defendants argue that the trial court erred in denying their motion to quash service because defendants did not make any filings prior to the entry of the default judgment.

¶ 2 On August 31, 2007, plaintiff filed a complaint to foreclose a mortgage against defendants for property commonly known as 1227 East 169th Street, South Holland, Illinois, 60473. On September 3, 2007, Ed Tomaszek, the special process server, swore affidavits that he personally served John Pilate a copy of the summons and complaint at 7:35 a.m. on September 3, 2007 for himself and as substitute service for his wife, Carolyn Hall-Pilate, at the address 1227 East 169th Street in South Holland. He described Pilate as a black male between the ages of 46 and 50.

¶ 3 On February 4, 2008, plaintiff filed a motion for order of default against defendants. In the motion, plaintiff asserted that defendant had been served and no motion or answer had been filed by the defendants. On March 18, 2008, the trial court entered a continuance order because John Pilate had appeared pro se before the court and requested time to consult with an attorney. The order granted defendants 28 days to file an appearance and answer or otherwise plead to the complaint. Plaintiff's motion for default was continued for hearing to April 23, 2008.

¶ 4 On April 23, 2008, after defendants failed to file an appearance or any other motion, the trial court granted plaintiff's motion for default judgment. The court also entered orders appointing a foreclosure sale officer and for judgment for foreclosure and sale. On July 29, 2008, plaintiff filed a motion for an order approving the report of sale and distribution following a judicial sale which took place on July 25, 2008.

¶ 5 On September 12, 2008, an "additional" appearance was filed by the Law Offices of Ernesto D. Borges, P.C., as counsel for defendants. On that date, defendants' attorney filed an emergency motion to stay approval of the property sale. The motion stated that "this office has recently been retained by the defendants to determine the correct value of the mortgage and requests, in the alternative, time to examine the mortgage foreclosure documents as well as to determine the accuracy of the foreclosure amounts." On September 15, 2008, the trial court denied defendants' emergency motion for a stay. The court also entered an order approving the report of sale and distribution, confirming the sale and order of possession.

¶ 6 On May 29, 2009, defendants, represented by new attorneys, filed a motion to quash service. Defendants alleged that they were never served with process in this case. Defendants stated that at the date and time stated by the special process server Tomaszek, John Pilate was in Griffith, Indiana. He was performing in a recording session which began at 7:30 a.m. and ran until 12:30 p.m. Defendants attached two unsworn and undated affidavits in support. One affidavit was from John Pilate, in which he stated that he participated in recording sessions from September 1 to September 4, 2007, from 7:30 a.m. to 12:30 p.m. in Griffith, Indiana. Pilate further stated that he arrived early for each session at 7:15 a.m. The second affidavit was from Milton Hall. Hall stated that he was the executive director of the Educational Design Associates and the children's music education division contracted with Pilate to perform backup music. Hall stated that he acted as key carrier for the recording studio from September 1 to September 4, 2007, and Pilate was at the studio each day at 7:15 a.m. for recording sessions that ran from 7:30 a.m. to 12:30 p.m. Defendants also attached Pilate's contracts for the recording sessions. Since Pilate was not home at the time Tomaszek swore in his affidavit, then no personal service occurred in this case for Pilate and substitute service did not occur for Hall-Pilate. Defendants asked the trial court to quash service and vacate any and all orders entered against them.

¶ 7 On September 14, 2009, following briefing and a hearing, the trial court denied defendants' motion to quash service. On October 13, 2009, defendants filed a motion to reconsider the denial of their motion to quash service. In the motion, defendants alleged that the trial court erred in denying their motion to quash service. The parties fully briefed the motion to reconsider. On July 30, 2010, the trial court denied defendants' motion to reconsider with a written opinion.

¶ 8 In that opinion, the trial court found that "prior to contesting this court's jurisdiction, the Defendants engaged in several actions which acknowledged notice and appealed to the court's jurisdiction." The court noted Pilate's appearance on March 18, 2008, and his request for a continuance to obtain counsel and to respond or otherwise plead. Then, the court discussed the emergency motion to stay approval of the sale, which "was not a motion to extend time to answer, nor was it a motion to appear before the court. The Defendants gave no indication that there was any objection to the court's jurisdiction neither at the time the motion was filed nor during the hearing on the motion to stay before the court." The court held that defendants' emergency motion to stay the approval of the judicial sale was "a voluntary appeal for this court to exercise its jurisdiction over the Defendants and was a waiver of their jurisdictional objection."

¶ 9 This appeal followed.

¶ 10 On appeal, defendants argue that the trial court erred in denying their motion to quash service because no filing was made by either defendant before the entry of the default judgment. Plaintiff responds that defendants waived their jurisdictional objections when they filed their emergency motion for stay the approval of a judicial sale prior to final judgment in the case.

ΒΆ 11 Though the postjudgment motion to quash service did not indicate under what statutory authority the motion was filed, defendants agree on appeal that the motion was in essence a motion seeking relief from a final judgment pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2008)) as it sought relief from a final judgment more than 30 days from the judgment's entry. See Sarkissian v. Chicago Board of Education, 201 Ill. 2d 95, 104-05 (2002). Generally, a section 2-1401 petition must show the existence of a meritorious defense to the original action and must show due diligence in bringing the petition. Sarkissian, 201 Ill. 2d at 103; see also 735 ILCS 5/2-1401(b), (c) (West 2008). However, the supreme court in Sarkissian held that pursuant to paragraph (f) of section 2-1401, the general rules for filing a section 2-1401 petition do not apply to petitions challenging a judgment on voidness grounds. Sarkissian, 201 Ill. 2d at 104. "Petitions brought on ...


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