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Deutsche Bank National Trust Company, As Trustee For Morgan Stanley, Msac 2007-He5 v. Jan Gryc

October 26, 2012

DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY, MSAC 2007-HE5, PLAINTIFF-APPELLEE,
v.
JAN GRYC, DEFENDANT-APPELLANT UNITED CALIFORNIA SYSTEMS INTERNATIONAL, INC., UNKNOWN OWNERS, AND NON-RECORD ,
CLAIMANTS, DEFENDANTS.



Appeal from the Circuit Court of Kane County. No. 08-CH-3433 Honorable Mark A. Pheanis Judge, Presiding.

The opinion of the court was delivered by: Justice Hudson

JUSTICE HUDSON delivered the judgment of the court, with opinion. Justices McLaren and Birkett concurred in the judgment and opinion.

OPINION

¶ 1 Defendant Jan Gryc appeals from the orders approving the report of sale and distribution in a foreclosure action and the predicate default foreclosure order. The orders were in favor of plaintiff, Deutsche Bank National Trust Company, as trustee for Morgan Stanley, MSAC 2007-HE5. Gryc asserts that the clerk of the court did not properly sign his summons and that the summons was therefore invalid. We hold that the signature was proper under the rule stated in National City Bank v. Majerczyk, 2011 IL App (1st) 110640, as we further develop it here. We therefore affirm the orders.

¶ 2 I. BACKGROUND

¶ 3 On October 29, 2008, plaintiff filed a complaint to foreclose a mortgage. It named as defendants Gryc, United California Systems International, Inc., unknown owners, and non-record claimants.

¶ 4 On the summons to Gryc, in the area for the court clerk's signature, the name "Deb Seyller" appears, handwritten in a cursive script. The handwriting does not closely resemble the signature of the clerk of the court, Deborah Seyller, as it appears as registered with the Secretary of State for a facsimile signature.

¶ 5 No defendant appeared within 30 days, and on February 6, 2009, the court entered a judgment of foreclosure. This included a finding under Illinois Supreme Court Rule 304(a) (eff. Jan. 1, 2006) that no just reason existed to delay enforcement or appeal.

¶ 6 On March 2, 2011 (before the sheriff's sale), Gryc filed a motion to quash service. The court struck this motion "without prejudice" when Gryc's counsel withdrew. New counsel filed an appearance on May 20, 2011, and, three days later, filed a new motion to quash service. The motion, which was similar to the earlier motion, asserted that the only methods by which the clerk can properly sign a summons are by his or her own hand and by a facsimile signature (as permitted by section 8 of the Clerks of Courts Act (Act) (705 ILCS 105/8 (West 2010))). Gryc's theory was that any other form of signature does not comply with Illinois Supreme Court Rule 101(a) (eff. May 30, 2008), which sets requirements for summonses: "The summons shall be issued under the seal of the court, tested in the name of the clerk, and signed with his name."

¶ 7 The court denied Gryc's motion on September 12, 2011. On October 3, 2011, the court approved the order of sale and distribution and granted an order of possession. Gryc filed a timely notice of appeal.

¶ 8 II. ANALYSIS

¶ 9 On appeal, Gryc again asserts that the summons was not properly signed and was therefore invalid. He argues first that the only two acceptable methods for the clerk of the court to sign a summons are personally and by way of a facsimile signature. He argues in the alternative that, if the law allows a deputy to sign for the clerk, he or she must do so in a format that indicates which deputy did the signing-that is, a format such as "[clerk's name] by [deputy's name]." This, he says, is necessary to show that the person signing the clerk's name was actually a deputy.

¶ 10 "We review de novo issues of law and questions involving statutory interpretation." People v. Rich, 2011 IL App (2d) 101237, ¶ 8. The issues that defendant raises are ones of law and include issues of interpretation of statutes and supreme court rules.

ΒΆ 11 Concerning the claim that the clerk of the court must sign a summons personally or by means of his or her facsimile signature, we follow Majerczyk as to what constitutes a valid signature. The holding in Majerczyk points to a definition of "signature" that is broad enough to encompass the ...


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