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BAC Home Loans Servicing, LP v. Pieczonka

Court of Appeals of Illinois, First District, Third Division

January 14, 2015

BAC HOME LOANS SERVICING, LP, f/k/a Countrywide Home Loans Servicing, LP, Plaintiff-Appellee,
v.
JACEK PIECZONKA, a/k/a Jacob Pieczonka, Defendant-Appellant.

Held [*]

The trial court’s dismissal of defendant’s motion to quash service of a complaint to foreclose the mortgage on the home where he lived was affirmed, regardless of his contention that substitute service of process on him did not strictly comply with the statutory requirements, since defendant did not contest that, contrary to section 15-1505.6 of the Code of Civil Procedure, more than 60 days elapsed between the filing of his initial and additional appearances in the case and the date he filed his second motion to quash service of process, and, therefore, the motion to quash was untimely.

Appeal from the Circuit Court of Cook County, No. 10-CH-41048; the Hon. Alfred M. Swanson, Judge, presiding

Counsel on Charles Aaron Silverman, of Charles Aaron Silverman PC, of Chicago, for appellant. Appeal

Phil Schroeder, of Pierce & Associates, PC, of Chicago, for appellee.

Panel JUSTICE LAVIN delivered the judgment of the court, with opinion. Presiding Justice Pucinski and Justice Mason concurred in the judgment and opinion.

OPINION

LAVIN, JUSTICE

¶ 1 Defendant Jacek Pieczonka, also known as Jacob Pieczonka, appeals the judgment of the circuit court of Cook County denying his motion to quash service of process of a complaint to foreclose the mortgage on the home in which he lived. Defendant contends that the court erred in denying that motion because the record shows that substitute service of process on him did not strictly comply with the statutory requirements. He thus requests that we reverse the court's order and remand for further proceedings.

¶ 2 The pleadings in the common law record show that on September 22, 2010, BAC Home Loans Servicing, LP, formerly known as Countrywide Home Loans Servicing, LP, filed a complaint to foreclose the mortgage that was executed in December 2013 between defendant and Countrywide Home Loans on the property commonly known as 3631 West 65th Street, Chicago, Illinois. Special process server Gary Somerville submitted a sworn affidavit indicating he served process on defendant "Jacek Pieczonka AKA Jacob Pieczonka" on September 24, 2010. Therein he averred, inter alia, that he served defendant via substitute service at his usual place of abode, 3631 West 65th Street, Chicago, Illinois, by leaving a copy of the summons and complaint with co-resident Jacob Pieczonka, who was over the age of 13, and informing him of the contents of those documents. Somerville described Jacob as a white male, age approximately 51 to 55 years old, and averred that he spoke limited English but stated the defendant did live in the house, but was not at home.

¶ 3 The common law record further shows that defendant failed to appear and/or file a responsive pleading in this case and that on October 16, 2012, an order of default was entered against him. A judgment of foreclosure and sale of the home was entered on that same date.

¶ 4 On January 30, 2013, defendant filed an appearance through his attorney and on February 6, 2013, filed a motion to quash service. In his motion, defendant argued, inter alia, that he was not served at his usual place of abode, as required by section 2-203(a)(2) of the Code of Civil Procedure (the Code) (735 ILCS 5/2-203(a)(2) (West 2012)). In support of his motion, defendant attached an affidavit that he represented was his affidavit and that was in the name of Jakub M. Pieczonka. Defendant averred that he was never given a summons and complaint in this case, that in September 2010, his place of residence was 1716 Norwood Avenue in Itasca, Illinois, and that he is currently 30 years of age, but was 28 years old in September 2010. Defendant also attached a lease reflecting that Jakub Pieczonka was listed as an occupant in an apartment located at 1716 Norwood Avenue in Itasca, Illinois, from February 2010 through February 2011.

¶ 5 On February 20, 2013, a different attorney filed an appearance on behalf of defendant, and on March 28, 2013, defendant filed a motion to substitute that attorney for the attorney who was listed on the first appearance filed on his behalf. In that motion, defendant stated that the law firm that originally represented him had broken up and that he was seeking to be represented by a former partner at that firm.

¶ 6 On April 11, 2013, defendant voluntarily withdrew his motion to quash service. On April 22, 2013, defendant filed an amended motion to quash service wherein he argued that pursuant to Somerville's service affidavit, service was not effected on him but, rather, on someone named Jacob Pieczonka. Defendant maintained that "Jacob" or "Jakub" was a common name, which could refer to his son. Defendant further argued that substitute service on him was improper in that it did not strictly comply with section 2-203(a)(2) of the Code (735 ILCS 5/2-203(a)(2) (West 2012)) because the person whom Somerville served did not live at defendant's usual place of abode. In support thereof, defendant attached the same affidavit from Jakub Pieczonka that had been attached to his original motion to quash, as well as the same lease. However, defendant no longer purported to be Jakub Pieczonka.

¶ 7 On July 8, 2013, the circuit court denied defendant's motion to quash service. The property was sold on the following day, and the sale was confirmed on September 13, 2013. Defendant now appeals from that denial order, and our review is de ...


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