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Deutsche Bank National Trust Company v. Nichols

Court of Appeals of Illinois, First District, Sixth Division

August 30, 2013

DEUTSCHE BANK NATIONAL TRUST COMPANY, Plaintiff-Appellee,
v.
TIJUANA NICHOLS, Defendant-Appellant.

Held [*]

In a mortgage foreclosure proceeding, the trial court’s entry of a final order approving the sale of the property was upheld over defendant’s contention that the order was void because it was entered while defendant’s petition for substitution of judge for cause was still pending, since defendant failed to pursue a ruling on the petition and the petition did not meet the threshold requirements for such a petition, including the requirement that it allege bias stemming from an extrajudicial source.

Rehearing denied Date November 15, 2013

Appeal from the Circuit Court of Cook County, No. 11-CH-13270; the Hon. David B. Atkins, Judge, presiding.

Tijuana L. Nichols, of Glenwood, appellant pro se.

Keith H. Werwas, of Potestivo & Associates, P.C., of Chicago, for appellee.

JUSTICE REYES delivered the judgment of the court, with opinion. Justice Hall concurred in the judgment and opinion. Justice Gordon dissented, with opinion.

OPINION

REYES JUSTICE

¶ 1 Following the entry of default judgment of foreclosure and the subsequent confirmation of the sale of the related property, pro se defendant Tijuana Nichols (Nichols) filed an appeal challenging the trial court's final order approving the sale. Nichols filed a petition to substitute judge for cause after the trial court denied her leave to file an answer and affirmative defenses in the matter. Nichols argues the order approving the sale of the property must be voided because the trial court entered the order before ruling on her petition. For the following reasons, we affirm the decision of the circuit court of Cook County.

¶ 2 BACKGROUND

¶ 3 On April 7, 2011, plaintiff Deutsche Bank National Trust Co. (Deutsche Bank) filed a complaint in the circuit court of Cook County initiating mortgage foreclosure proceedings against Nichols. Upon Deutsche Bank's request, the trial court then appointed a special process server who, on April 25, 2011, effected substitute service pursuant to section 2-203(a)(2) of the Code of Civil Procedure (735 ILCS 5/2-203(a)(2) (West 2010)) by serving Nichols' abode located at 417 West Holly Court in Glenwood, Illinois.[1] On July 20, 2011, Deutsche Bank presented a motion for entry of default judgment of foreclosure as Nichols had not yet filed an answer or appearance in the case. Nichols did not appear in court on July 20, 2011, and the trial court therefore granted default judgment in favor of Deutsche Bank.

¶ 4 On November 18, 2011, however, Nichols filed a motion for leave to file an answer and affirmative defenses in the matter.[2] The trial court denied this motion on December 1, 2011, holding "service occurred over seven months ago [and Nichols'] request came post judgment and sale of the property."[3] A week later, on December 7, 2011, Nichols filed a petition[4] to substitute judge for cause pursuant to section 2-1001(a)(3) of the Code of Civil Procedure (735 ILCS 5/2-1001(a)(3) (West 2010)). Nichols asserted two reasons as evidence of judicial bias: (1) Deutsche Bank allegedly "never served [her] with notice of [default judgment]"; and (2) the trial judge denied her motion for leave to file an answer and affirmative defenses. Nichols spindled her petition with the clerk of the court, scheduling the matter to be heard on January 26, 2012.

¶ 5 Subsequently, Deutsche Bank filed a motion requesting the trial court enter an order approving the sale of the property. The clerk of the court scheduled a hearing on this motion for January 25, 2012 and, consequently, the trial court entered an order approving the sale of the property on that date. There is no record of Nichols' appearing in court on January 25 to contest the confirmation of the sale. The record also does not reflect whether Nichols delivered a copy of her petition to the judge or whether she appeared in court on January 26 to present and argue her petition. In any event, the record does indicate the trial court never entered an order granting or denying Nichols' petition for substitution of judge. Nichols now appeals the trial court's final order as void.[5]

¶ 6 ANALYSIS

¶ 7 On appeal, Nichols argues the trial court lacked the authority to enter the final order in this case while her substitution of judge petition was still pending. The question of whether the trial court had legal authority to enter final judgment in this case is a question of law. SeeCrittenden v. Cook County Comm'n on Human Rights, ...


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