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U.S. Bank National Association, As Trustee For v. Michael Luckett

March 4, 2013

U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR
CREDIT SUISSE FIRST BOSTON HEAT 2005-5,
PLAINTIFF-APPELLEE,
v.
MICHAEL LUCKETT, RUBY WILSON, AND UNKNOWN OCCUPANTS, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County No. 11 M1 714759 Honorable James L. Kaplan and George F. Scully, Jr., Judges Presiding.

The opinion of the court was delivered by: Justice Delort

JUSTICE DELORT delivered the judgment of the court, with opinion. Justices Cunningham and Rochford concurred in the judgment and opinion.

OPINION

¶ 1 Plaintiff, U.S. Bank National Association, as trustee for Credit Suisse First Boston HEAT 2005-5 (U.S. Bank),*fn1 filed a forcible entry and detainer action against defendants, Michael Luckett, Ruby Wilson, and unknown occupants. In its complaint and accompanying notice, which were properly served to defendants, U.S. Bank identified itself as "Bank National Association, as Trustee for Credit Suisse First Boston HEAT 2005-5." On October 31, 2011, the circuit court entered an order of possession against defendants, which also identified U.S. Bank as Bank National Association, as trustee for Credit Suisse First Boston HEAT 2005-5. Defendants then moved to dismiss the case and stay the order of possession, claiming Bank National Association, as trustee for Credit Suisse First Boston HEAT 2005-5, was not a proper plaintiff and, thus, had no right to possession of the property. The court denied defendants' motion and ordered U.S. Bank to file a written motion to amend its complaint. U.S. Bank filed its motion to amend the complaint and order of possession. On December 14, 2011, the court granted U.S. Bank's motion and amended the complaint and October 31, 2011 order of possession nunc pro tunc "to reflect U.S. Bank National Association, as Trustee for Credit Suisse First Boston HEAT 2005-5 as the proper party plaintiff." Defendants appeal from the December 14, 2011 order. We affirm the judgment of the circuit court and modify the court's October 31, 2011 order to remove the nunc pro tunc language so that the amendments relate back to the original documents in question.

¶ 2 BACKGROUND

¶ 3 About five years ago, Jean Prabhakaran fell into default on a mortgage held on her property in Maywood, Illinois. The circuit court entered orders foreclosing on the mortgage and confirming the sale of the property back to U.S. Bank, which was the original mortgagee's successor. After the foreclosure case had been completed, Prabhakaran filed a flurry of motions to forestall U.S. Bank's repossession of the property. The court denied these motions, but Prabhakaran appealed. This court recently affirmed those rulings, finding that the foreclosure and sale were valid. U.S. Bank National Ass'n v. Prabhakaran, 2013 IL App (1st) 111224.

¶ 4 While the Prabhakaran appeal was pending, U.S. Bank discovered that Prabhakaran's relatives Michael Luckett and Ruby Wilson, were actually living at the Maywood property. On July 8, 2011, U.S. Bank filed a new action under the Forcible Entry and Detainer Act (735 ILCS 5/9-101 et seq. (West 2010)) claiming that it was entitled to possession of the property from Luckett and Wilson. That case is the subject of the present appeal.

¶ 5 Before filing this case, attorneys for U.S. Bank issued a preeviction notice pursuant to section 15-701 of the Illinois Mortgage Foreclosure Law (735 ILCS 5/15-1701 (West 2010)). The preeviction notice was on the law firm's letterhead, which bore the firm's name, address, and phone number. It stated that the property was now owned by "Bank National Association, as Trustee for Credit Suisse First Boston HEAT 2005-5" and that the same entity demanded possession. The name of the owner in the preeviction notice deviated from the correct name only through the omission of the characters "U.S." Both the caption of the complaint filed below and the original possession order now on appeal herein contain the same omission. The complaint itself contains only three paragraphs, none of which reference plaintiff by name. However, attached to the complaint was a copy of the order of confirmation of sale entered in the Prabhakaran case, which correctly lists plaintiff's name with the additional characters "U.S." in the caption, and a notice listing contact information for the real estate management personnel responsible for the property, including their phone numbers and email address.

¶ 6 Luckett and Wilson were served with summonses on August 24, 2011, requiring them to appear "for trial" on August 31, 2011. The record is unclear on the point, but it appears they did not appear in court that day. The court continued the case to October 31, 2011. Again, the record does not make clear whether Luckett and Wilson appeared for trial. After hearing the matter for trial, the court entered an order of possession in favor of U.S. Bank and against Luckett and Wilson. The court stayed the order of possession until November 7, 2011. That order disposed of all issues in the case.

¶ 7 Through an attorney, Luckett and Wilson filed their first pleadings in the eviction case on November 4, 2011. The attorney representing Luckett and Wilson in the case below is one of the same attorneys who represented Prabhakaran in the later stages of the foreclosure case.

¶ 8 Instead of filing a motion to vacate or a motion for a new trial, counsel for Luckett and Wilson filed a notice of motion indicating he would present "Motions to Quash Service of Process, Dismiss for Lack of Jurisdiction, and Stay Order for Possession."*fn2 The motion is hardly a model of draftsmanship. First, despite the title in the notice of motion, nothing in the motion seeks to quash service of process. The motion is divided into two parts. The first part is labeled "Motion to Dismiss for Lack of Jurisdiction (Wrong Plaintiff)." This part does contain a prayer for relief asking the court to vacate the order of possession, but cites none of the usual statutory authority, such as section 2-1301 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1301 (West 2010)), to support a request to vacate. Nor does it or defendants' appellate briefs recite any of the usual standards applicable to motions to vacate, such as "substantial justice between the parties." See Northern Trust Co. v. American National Bank & Trust Co. of Chicago,265 Ill. App. 3d 406, 412 (1994).

¶ 9 The second part of the motion is labeled "Motion to Stay Order for Possession." This part begins with a citation to section 2-1203 of the Code (735 ILCS 5/2-1203 (West 2010)), which allows courts to grant new trials. However, nothing else in the motion requests a new trial. This part of the motion simply cites the pendency of the Prabhakaran appeal as a reason to stay the October 31 possession order.

¶ 10 The court below denied the defendants' motions to dismiss and to stay possession. The court did, however, order plaintiff to file a written motion to amend the complaint, and it set a briefing schedule on that motion. In its written motion, U.S. Bank indicated that the "Bank National Association" appellation was a misnomer created by a scrivener's error. On December 14, 2011, the court granted U.S. Bank's motion to amend, and ordered that the complaint and October 31, 2011 order of possession be amended nunc pro tunc to add "U.S." before "Bank National Association, as Trustee for Credit Suisse First Boston HEAT 2005-5."

ΒΆ 11 On December 15, 2011, defendants filed a timely notice of appeal. The notice of appeal is also problematically drafted. The notice states that the only "judgment/order being appealed from" is dated "12/14/11" -- a date which refers only to Cook County Circuit Court Judge George Scully's order granting plaintiff's motion to amend. One line below, the notice of appeal contains a seemingly contradictory statement indicating that the relief sought from this court includes not only reversing the December 14, 2011 order allowing the amendment, but also reversing the November 17 order denying defendants' motion to ...


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