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J.P. Morgan Mortgage Acquisition v. Joseph L. Straus A/K/A Joseph Straus

October 30, 2012


Appeal from the Circuit Court of Cook County. No. 09 CH 40063 Honorable Jesse G. Reyes, Judge Presiding.

The opinion of the court was delivered by: Justice MURPHY*fn1

JUSTICE MURPHY delivered the judgment of the court with opinion. Justices Quinn and Connors concurred in the judgment and opinion.


¶ 1 On October 19, 2009, the underlying complaint to foreclose mortgage was filed in the circuit court of Cook County by the original plaintiff, Credit Based Asset Servicing and Securitization, LLC. Defendant, Joseph Straus, filed his appearance and answer, pro se, on November 20, 2009. Counsel for defendants filed an additional appearance with the clerk of the circuit court on behalf of Joseph Straus on March 16, 2010, and on behalf of Alice Straus on October 25, 2010. Counsel's additional appearances contained the following certification of service signed by counsel, "I certify that a copy of the within instrument was served on all parties who have appeared and have not heretofore been found by the Court to be in default for failure to plead." On May 12, 2010, Credit Based Asset Servicing and Securitization LLC, moved to substitute J.P. Morgan Mortgage Acquisition Corp. (J.P. Morgan) as plaintiff because the mortgage had been assigned to J.P. Morgan, transferring all right, title and interest in the mortgage.

¶ 2 On May 12, 2010, J.P. Morgan filed motions: for summary judgment; for default judgment against Alice Straus and First Eagle Bank; to dismiss party defendant "unknown owners and non-record claimants"; and for judgment of foreclosure and sale. J.P. Morgan averred in the notices of motion that the notices and motions were served on Joseph Straus, Alice Straus, First Eagle Bank, and unknown owners via United States mail. On May 21, 2010, the trial court entered orders granting plaintiff's motions: to substitute J.P. Morgan as plaintiff; for default judgment against Alice Straus and First Eagle Bank; for summary judgment against Joseph Straus; and for a judgment for foreclosure and sale.

¶ 3 Pursuant to the judgment for foreclosure and sale, a judicial sale was held on August 24, 2010. On September 3, 2010, plaintiff filed a motion for an order approving the sale and distribution of the property. Notice was provided to defendants again by United States mail. At the October 25, 2010, hearing on the motion, the parties were represented by counsel. On that date, counsel for defendants filed and presented in open court an appearance on behalf of Alice Straus and a motion to quash service of process on behalf of Alice. Plaintiff withdrew its motion to confirm the sale of the property. On October 29, 2010, Joseph filed a motion to vacate and void the judgment of foreclosure and sale. Joseph argued that the judgment was void because his counsel met with plaintiff's counsel prior to the March 26, 2010, hearing and presented his March 26, 2010, additional appearance on behalf of Joseph. Joseph asserted that his counsel did not receive notice of any subsequent hearings in violation of Supreme Court Rule 11 (Ill. S. Ct.

R. 11 (eff. Dec. 29, 2009)).

¶ 4 Plaintiff responded that it was not served with notice of counsel's appearance and that counsel failed to properly seek leave of the trial court to file the appearance; therefore, it properly provided notice of its motions to defendants. In his response brief, Joseph asserted that "it is extraordinarily unusual for attorney Gertzman to file an Additional Appearance, mid-day, 35 minutes [to] a scheduled court hearing, and not deliver a copy of said Appearance to opposing counsel." Joseph added:

"It is so unbelievable that it remains extraordinarily coincidental that attorney Gertzman's Additional Appearance was filed on March 16, 2010, midday, only 35 minutes before the noticed 2:00 p.m. scheduled court hearing, but, however, Plaintiff's counsel fails to recall receiving attorney Gertzman's Additional Appearance. *** Apparently, Plaintiff's counsel suggests that attorney Gertzman filed an Appearance 35 minutes before a scheduled court hearing, became aware by telepathic waves that Plaintiff's counsel was withdrawing Plaintiff's Motion allegedly resulting in attorney Gertzman's departure from the courthouse without serving a copy of said Appearance on Plaintiff's counsel. Hogwash!!!"

¶ 5 After briefing the issue, a hearing was held on March 11, 2011. Plaintiff argued that it was never served with defense counsel's appearance as required by Rule 11 and, furthermore, that counsel filed the appearance without leave of court. Joseph argued that counsel delivered a copy of the appearance to plaintiff's counsel in open court on March 16, 2010. Joseph also argued that the rules do not require that a party seek leave to file an appearance. The trial court indicated that defendant's exhibit attached to his motion, purportedly to demonstrate proof that counsel filed an appearance, was illegible and it could not be considered in support of defendant's argument. Joseph's counsel admitted the copy was illegible, but attached the exhibit because it was the best copy that could be made. However, counsel also argued that the docket for the case indicated that the appearance was filed and plaintiff should have reviewed the docket and provided notice.

¶ 6 The trial court continued the matter to May 18, 2011, when the motion was denied. The judicial sale was granted on July 18, 2011. Defendants filed a notice of appeal seeking vacature of the May 18, 2011, and July 18, 2011, orders. On appeal, defendants assert only a single issue. They contend that the trial court order denying the motion to vacate and void the judgment of the foreclosure sale was erroneous and all subsequent orders of the trial court are void. Defendants note that this issue is a legal question and the standard of review is de novo. City of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191 (1998).

¶ 7 Defendants assert that defense counsel filed an appearance on behalf of Joseph Straus on March 26, 2010, prior to the date that plaintiff's motions for default judgment and summary judgment were filed. Defendants contend that Joseph's counsel's appearance was served on plaintiff's counsel the day it was filed. They argue that, pursuant to Rule 11(a), "[i]f a party is represented by an attorney of record, service shall be made upon the attorney," and service was improper because it was not made on the attorney of record. Ill. S. Ct. R. 11(a) (eff. Dec. 29, 2009). Defendants note that this mandatory language cannot be disregarded by the trial court.

¶ 8 Defendants also argue that plaintiff's argument before the trial court that the appearance filed by defendant's counsel was improper because leave of court had not been sought prior to filing the appearance must fail. Defendants note that this claim is contrary to the mandatory requirements of Supreme Court Rule 13(c)(1), which provides: "An attorney shall file his written appearance or other pleading before he addresses the court unless he is presenting a motion for leave to appear by intervention or otherwise." Ill. S. Ct. R. 13(c)(1) (eff. Feb. 16, 2011). Accordingly, defendants argue, counsel's appearance was properly filed and personally served on plaintiff's counsel and that triggered the obligation to provide service only upon the attorney of record.

ΒΆ 9 Defendants claim that it is axiomatic that plaintiff's failure to provide notice to an attorney of record renders the orders that follow fatally defective. Defendants assert that such orders are void and a trial court errs when it refuses to vacate the orders. Defendants cite to Wilson v. Moore, 13 Ill. App. 3d 632 (1973), for "this long-standing and universally-accepted principle of Illinois law." They contend that this principle is so ingrained in Illinois law that "there is no need ...

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