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Onewest Bank, Fsb, As Assignee of Mortgage Electronic Registration Systems, Inc v. Bogumil Topor

March 4, 2013


Appeal from the Circuit Court of Cook County, No. 10 CH 13233 Honorable David B. Atkins, Judge Presiding.

The opinion of the court was delivered by: Justice Delort

JUSTICE DELORT delivered the judgment of the court, with opinion.

Presiding Justice Hoffman and Justice Rochford concurred in the judgment and opinion.


¶ 1 The defendants in this mortgage foreclosure case, Bogumil Topor and Agnes Z. Topor, never appeared in court and allowed the case to proceed to final judgment. Months after their home was sold and the circuit court of Cook County confirmed the sale, the defendants finally appeared to claim that they were never properly served with the complaint and summons. In response, the plaintiff, OneWest Bank, FSB, as assignee of Mortgage Electronic Registration Systems, Inc., as nominee of IndyMac Bank (Bank), turned the tables and claimed that it was never properly served with the defendants' motion to quash the plaintiff's allegedly invalid service. This dispute, which presents the legal equivalent of standing between two mirrors and seeing infinite reproductions of one's image, gives us the opportunity to clarify the relationship between petitions to vacate final judgments pursuant to section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2010)) and motions to quash service of process. For the following reasons, we dismiss the appeal for lack of a final order.


¶ 3 The plaintiff filed this case on March 30, 2010, alleging that the defendants were in default on their mortgage for property located at 8136 South Natchez in Burbank, Illinois. The record contains affidavits from a special process server indicating that he personally served Agnes on April 10, 2010 at 8:25 p.m. at the subject property, and that he served Bogumil on April 4, 2010 at 9:30 a.m. at a nearby address, 8038 South Natchez.

¶ 4 On July 30, 2010, counsel for the plaintiff sent a notice of motion to both defendants indicating presentment of a motion to default them on August 2, 2010. The record shows that the defendants neither appeared for the mandatory case management conference on June 3, nor a subsequent default hearing on August 2. On that date, the court entered a default order of foreclosure and sale against the defendants.

¶ 5 On October 20, 2010, counsel for plaintiff sent a third notice to the defendants, advising them of the impending sale of the property. On March 10, 2011, the court entered an order confirming the sale of the subject property and directing the sheriff to evict the Topors, an order which would normally terminate the case.

¶ 6 On July 1, 2011, almost three months after the March 10 order confirming the sale, the Topors finally became active in the case. An attorney filed an appearance and a motion to quash on their behalf. The motion to quash contained affidavits from the defendants and a large number of other persons attesting to the defendants' whereabouts at the time of the alleged service. The motion was accompanied by a proof of service indicating merely that it was mailed to the plaintiff's counsel.

¶ 7 The plaintiff objected to the motion to quash on two grounds. First, the Bank objected to the manner in which the motion was served upon it, arguing that since more than 30 days had passed since the final judgment order, the defendants were obligated to serve the motion on the actual corporate plaintiff and not merely mail it to the plaintiff's counsel. Rather than simply rest on that jurisdictional issue, the plaintiff presented a second argument, apparently in the interests of expedition and judicial economy. The Bank also claimed that the affidavits were insufficient on their face to even trigger the need for an evidentiary hearing, much less support quashing service.

¶ 8 The trial court's disposition of the motion to quash is memorialized only in two brief handwritten orders. On September 19, 2011, the court "denied" the motion to quash and ordered that the defendants had 21 days to "file a [section] 2-1401 petition, and serve plaintiff." The record contains no transcript of the arguments or ruling on the motion. It seems clear, however, from the court's use of the word "serve" that it found the plaintiff's jurisdictional argument to be meritorious. The defendants asked the court to reconsider that ruling, but the court denied the motion on November 29, 2011, finding that a section "2-1401 petition is the proper procedural vehicle to bring a motion to quash 30 days after final judgment." The record is silent regarding any attempts the defendants made to serve the corporate plaintiff with the motion to quash. This appeal followed.


ΒΆ 10 Before we address the central issue briefed by the parties, we pause to discuss the quandary caused by the plaintiff's seemingly self-contradictory strategy to attack both the service of the defendants' motion upon itself and the merits of defendants' affidavits. It has long been said that making substantive arguments, or filing substantive pleadings, while simultaneously attacking service of process, risks waiver of the jurisdictional claims. However, this doctrine is grounded in the specific statutory language of section 2-301(a-5) of the Code (735 ILCS 5/2-301(a-5) (West 2010)), which provides that a party waives jurisdictional arguments if it first files some ...

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