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Onewest Bank, Fsb v. Bozena Markowicz and Ireneusz Markowicz

April 16, 2012

ONEWEST BANK, FSB,
PLAINTIFF-APPELLEE,
v.
BOZENA MARKOWICZ AND IRENEUSZ MARKOWICZ,
DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County No. 09 CH 22579 Honorable David B. Atkins, Judge Presiding.

The opinion of the court was delivered by: Justice Karnezis

JUSTICE KARNEZIS delivered the judgment of the court with opinion. Justices Hall and Rochford concurred in the judgment and opinion.

OPINION

¶ 1 This appeal arises from orders of the circuit court denying defendants Bozena Markowicz and Ireneusz Markowicz's motion to quash service in plaintiff OneWest Bank, FSB's mortgage foreclosure action against defendants and confirming the foreclosure sale of defendants' mortgaged real property. Plaintiff had obtained a standing order appointing a special process server pursuant to the procedure set forth in General Administrative Order 2007-03 (the GAO). Plaintiff ultimately served defendants by publication. Defendants argue the court erred in refusing to quash service and in confirming the sale because (1) the presiding judge of the chancery division had no authority to enter the GAO and, absent statutory authority, the GAO is void; (2) even if the GAO is valid, Plaintiff's enabling order appointing the special process server did not comply with the requirements of the GAO and is, therefore, invalid; and (3) service by publication was improperly authorized. We affirm.

¶ 2 BACKGROUND

¶ 3 In April 2003, plaintiff entered into a mortgage with defendants. Starting in December 2008, defendants failed to pay plaintiff the amounts due under the mortgage. On July 9, 2009, plaintiff, through its attorneys Codilis & Associates, filed a complaint to foreclose the mortgage. It also filed a motion for appointment of A special process server. To its motion, it attached a copy of a May 14, 2009, order appointing standing special process servers authorized to serve process in mortgage foreclosure cases handled by Codilis & Associates for the three-month period ending on August 30, 2009.

¶ 4 The standing order was obtained pursuant to the GAO, entered on June 22, 2007, by Judge Dorothy Kinnaird, the then-presiding judge of the chancery division of the circuit court of Cook County. The GAO provides, in relevant part:

"For many years, service of summons in most mortgage foreclosure cases filed in the Chancery Division of the Circuit Court of Cook County has been accomplished through the appointment of special process servers. Due to insufficient resources in personnel, equipment, and technological capabilities, the Sheriff of Cook County has been unable to effectuate service of process promptly and accurately in mortgage foreclosure cases.

In the year 2006, mortgage foreclosure filings in the Circuit Court of Cook County increased from 16,494 (2005 filings) to 22,248. Based upon filings for the first five (5) months of 2007, it is estimated that mortgage foreclosure filings for the year 2007 will be in excess of 30,000 cases.

Because of the increase in mortgage foreclosure filings and insufficient resources allocated to the Chancery Division's Clerk's Office, the Clerk of the Court has been unable to process promptly Motions for the Appointment of Special Process Servers and Orders Appointing Special Process Servers. *** Because of the expiration of summonses, these processing delays have created significant problems for plaintiffs' attorneys and their clients. Attempts over the past year to remedy the delays in the Clerk's Office have proved unsuccessful. IT IS HEREBY ORDERED THAT:

1. Effective immediately, each law firm handling mortgage foreclosure cases in the Chancery Division may by Motion seek a Standing Order for the appointment of designated special process servers. Each Order will have a three (3) month or quarterly duration ***.

2. Each Motion and Order for a standing special process server order shall bear the heading 'In the Matter of the Application of the Law Firm of [INSERT NAME] for a Standing Order for the Appointment of a Special Process Server for the Quarter Ending [INSERT DATE].' A law firm may designate one or more individuals or companies to serve as special process servers for each quarter of a year on all cases filed by that firm."

Prior to entry of the GAO, a law firm would have had to file a separate motion for appointment of a special process server and obtain an order appointing such in each mortgage foreclosure action it handled.

¶ 5 Pursuant to Codilis & Associates' standing order, ProVest LLC, a private agency, served as the special process server in attempting to serve defendants. It attempted 14 times to serve defendants at the address for the mortgaged property. No other contact address for defendants could be found. On August 17, 2009, Codilis & Associates filed an affidavit on behalf of plaintiff requesting leave for service by publication. It served defendants by publication from August 21, 2009, to September 4, 2009.

¶ 6 Defendants failed to appear. On December 2, 2009, the court granted plaintiff's motion for entry of an order of default and entered a judgment of foreclosure and sale of defendants' real property. Plaintiff was the high bidder at the judicial sale held on December 1, 2010.

¶ 7 On January 11, 2011, defendants moved to quash service. They argued the order appointing the special process server was inadequate because it did not follow the requirements of the GAO. They also argued the process server who signed the returns of service was not identified in the returns of service as an employee of ProVest. On March 16, 2011, the court denied the motion to quash. The court denied defendants' motion to reconsider on April 5, 2011, and defendants timely appealed on April 14, 2011.

¶ 8 ANALYSIS

¶ 9 1. Validity of General Administrative Order 2007-03

¶ 10 Defendants main argument on appeal is that the court should have granted their motion to quash service because the GAO is void. Judge Dorothy Kinnaird, the then-presiding judge of the chancery division of the Cook County circuit court, issued the GAO. Defendant argues the GAO is void because the presiding judge of the chancery division had no authority to issue and/or enforce the GAO. They argue (a) there is no such authority provided by common law, the 1970 Illinois Constitution or statute; (b) issuance of the GAO violated Illinois Supreme Court RuleS 21(a), (b) and (c), (EFF. Dec. 1, 2008) because it was not adopted by either the majority of circuit court judges in the circuit or by the chief circuit judge; (c) the GAO conflicts with the requirements for appointment of a special process server stated in section 2-202 of the Illinois Code of Civil Procedure (735 ILCS 5/2-202 (West 2010)); (d) the GAO conflicts with the requirements for commencement of civil actions stated in section 2-201 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-201 (West 2010)); (e) the GAO circumvents the proper statutory procedure for service of process; (f) the GAO was entered in the absence of a justiciable question and thus involved a hypothetical conflict; and (g) a copy of the GAO is not readily available because it is not part of the general rules of the circuit court of Cook County.

¶ 11 Plaintiff argues defendants waived any arguments regarding the validity of the GAO because they did not raise these issues below. An order entered without authority or without jurisdiction of the parties or subject matter is void and may be challenged at any time in any court, directly or collaterally. Sarkissian v. Chicago Board of Education, 201 Ill. 2d 95, 103 (2002). Defendants' argument on appeal is that the GAO is void because the presiding judge had no authority to enter or enforce it. Defendants, therefore, did not waive their arguments regarding the validity of the GAO by failing to raise them in the trial court.

¶ 12 a. Authority to Issue the GAO

ΒΆ 13 This court has already decided the main issue at bar, finding in U.S. Bank, N.A. v. Dzis, 2011 Il App (1st) 102812, that the GAO was valid. In Dzis, we held that the presiding judge of the chancery division had the authority pursuant to Illinois Supreme Court Rule 21(c) to enter general orders in the exercise ...


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