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GreenPoint Mortg. Funding, Inc. v. Poniewozik

Court of Appeals of Illinois, First District, First Division

December 8, 2014

GREENPOINT MORTGAGE FUNDING, INC., Plaintiff-Appellee,
v.
MARIUSZ PONIEWOZIK, Defendant-Appellant. (Edward Poniewozik; Janina Poniewozik; One South Leavitt Condominium Association, NFP; Mortgage Electronic Registration System, Inc., GreenPoint Mortgage Funding, Inc., unknown owners and nonrecord claimants, Defendants

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[Copyrighted Material Omitted]

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Appeal from the Circuit Court of Cook County. No. 08 CH 44711. Honorable Robert E. Senechalle, Judge Presiding.

For PLAINTIFF-APPELLEE: Jena Valdetero, Leighton O'Connell-Miller, BRYAN CAVE LLP, Chicago, Illinois; CODILIS & ASSOCIATES, P.C., Burr Ridge, Illinois.

For DEFENDANT-APPELLANT: Stephen D. Richek, Chicago, Illinois.

JUSTICE CONNORS delivered the judgment of the court, with opinion. Presiding Justice Delort and Justice Harris concurred in the judgment and opinion.

OPINION

CONNORS, JUSTICE.

Page 528

[¶1] Defendant Mariusz Poniewozik appeals from an order of the circuit court dismissing his petition brought pursuant to section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2012)) tat sought to quash service of process in a foreclosure proceeding. On appeal, defendant contends the circuit court improperly found that his claim was barred by section 15-1505.6 of the Illinois Mortgage Foreclosure Law (Mortgage Foreclosure Law) (735 ILCS 5/15-1505.6 (West 2012)), which became effective on August 12, 2011. Pub. Act 97-329 (eff. Aug. 12, 2011). That statute requires that a motion to quash service of process in a residential foreclosure action must be brought within 60 days of the date that the moving party files an appearance or participates in a hearing without filing an appearance, unless the court grants an extension for good cause. 735 ILCS 5/15-1505.6 (West 2012). For the following reasons, we affirm.

[¶2] The record reveals that on December 1, 2008, plaintiff, GreenPoint Mortgage Funding, Inc. (GreenPoint), filed a complaint to foreclose a mortgage for a property located at 1 South Leavitt Street, Unit No. 404, in Chicago, Illinois, against defendant and two other mortgagors.[1] GreenPoint subsequently attempted to serve defendant at 1 South Leavitt and three other addresses. According to an affidavit, the process server was informed by the current resident of the 1 South Leavitt property, Derick Pawlak, that defendant was the absentee owner. Additional affidavits indicated that during the other attempts at service, the process server was informed that defendant also did not live at the three other addresses.

[¶3] On December 31, 2008, GreenPoint filed an affidavit to allow service by publication. Notice of the impending foreclosure action was published in the Chicago Daily Law Bulletin three times between January 6, 2009, and January 20, 2009.

[¶4] On August 28, 2009, GreenPoint filed a notice of motion that on September 4, 2009, it would present a motion for default and judgment of foreclosure and sale. On September 3, 2009, an attorney entered an appearance on behalf of defendant and the two other mortgagors. The next day, the court entered an order stating that: (1) defendant's motion for time to answer or otherwise plead was granted; (2) defendant was given leave to file his appearance instanter ; and (3) defendant had 28 days, until October 2, 2009, to file his answer or otherwise plead to GreenPoint's complaint.

[¶5] In November 2009, GreenPoint filed a motion for entry of an order of default and judgment of foreclosure and sale. Notice of this ...


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