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BAC Home Loans Servicing, LP v. Mitchell

Supreme Court of Illinois

March 20, 2014

BAC HOME LOANS SERVICING, LP, f/k/a COUNTRYWIDE HOME LOANS SERVICING, LP, Appellee,
v.
KIM E. MITCHELL, Appellant

Page 163

Reversed and remanded.

SYLLABUS

Where a debtor's first appearance in a defaulted mortgage proceeding was posttrial, with a motion to vacate based on defects in the substituted service which had been attempted, the debtor had made a waiver, but it was prospective only and did not retroactively validate earlier orders entered without personal jurisdiction, which should be vacated.

For Kim E. Mitchell, Appellant: Mr. Daniel John Voelker, Ms. Tricia Lynn Putzy, Voelker Litigation Group, Chicago, IL.

For BAC Home Loans Servicing, Appellee: Ms. Amy Elizabeth Breihan, Mr. Steven Russel Smith, Ms. Ashley Hattrishe Nall, Bryan Cave LLP, Chicago, IL.

JUSTICE KILBRIDE delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Freeman, Thomas, Karmeier, Burke, and Theis concurred in the judgment and opinion.

OPINION

KILBRIDE, JUSTICE.

Page 164

[¶1] In this case, we consider whether a party's waiver of objections to the circuit court's personal jurisdiction applies retroactively to validate orders entered prior to the party's submission to the court's jurisdiction. The appellate court held that the waiver applied both prospectively and retroactively. For the following reasons, we hold that a party's waiver of personal jurisdiction is prospective only and does not serve to validate retroactively orders entered by the circuit court without personal jurisdiction. Accordingly, we reverse the appellate court's judgment and remand to the circuit court for further proceedings.

[¶2] I. BACKGROUND

[¶3] Defendant, Kim E. Mitchell, executed a promissory note with Countrywide Home Loans, Incorporated, in the amount of $75,400. The note was secured by a mortgage on defendant's home in Chicago. Approximately four years later, plaintiff BAC Home Loans Servicing, LP, formerly known as Countrywide Home Loans Servicing, LP, filed a complaint to foreclose the mortgage.

[¶4] The special process server's affidavit states defendant was served with summons and complaint by substituted service on November 14, 2009. According to the affidavit, a copy of the process was left at defendant's residence with her daughter, Michelle Foreman, who also lived at the residence.

[¶5] Defendant did not answer the complaint. Plaintiff mailed defendant a notice stating it intended to move for entry of a judgment of foreclosure and sale on June 9, 2010. On June 3, 2010, plaintiff filed a motion for order of default, a motion for judgment of foreclosure and sale, and a motion to appoint a selling officer. On June 9, 2010, the circuit court of Cook County granted plaintiff's motions, entering an order of default, an order appointing a selling officer, and a judgment for foreclosure and sale.

[¶6] A notice of sale was mailed to defendant's address and a judicial sale was held on September 13, 2010. On August 2, 2011, plaintiff filed a motion for an order confirming the report of sale and distribution and for possession. Notice of the motion was mailed to defendant. The circuit court entered an order confirming the sale on September 14, 2011.

[¶7] On October 12, 2011, defendant filed an appearance and a motion to vacate the circuit court's September 14, 2011, order confirming the report of sale and distribution and for possession. Defendant asserted " to the best of her knowledge" she was never served with summons, she did not receive notice of the motion for default judgment, she was informed by plaintiff that a loan modification had been approved, and she did not receive notice of the September 14, 2011, order. Defendant

Page 165

asked the court to vacate the order " in the interest of justice."

[¶8] Defendant later withdrew her motion and filed a motion to quash the September 14, 2011, order or, in the alternative, a petition for relief fro judgment under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2010)) and section 15-1508 of the Illinois Mortgage Foreclosure Law (735 ILCS 5/15-1508 (West Supp. 2011)). Defendant essentially repeated the allegations of her previous motion to vacate. Defendant added that " justice was not done, and the sale of her home was fraudulent and a due process violation." The motion was stricken without prejudice. Defendant refiled her motion the following day, this time attaching exhibits referenced in the motion.

[¶9] In its response to the motion, plaintiff asserted defendant was served by substituted service on November 14, 2009. Plaintiff attached a copy of the affidavit of service. The affidavit stated substituted service was made by:

" leaving a copy of this process at [defendant's] usual place of abode with: Michelle Foreman (Relationship) Daughter, a person residing therein who is of the age of 13 years or upwards and informed that person of the contents thereof and that further mailed a copy of this process in a sealed envelope with postage paid addressed to the defendant at his/her usual place of abode on 11-17-09."

[¶10] Defendant filed a reply, asserting the substituted service was defective because she does not have a daughter. Defendant asserted her only child is a son named William Mitchell and she does not know anyone named Michelle Foreman. ...


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