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TCF National Bank v. Richards

Court of Appeals of Illinois, First District, Fifth Division

October 28, 2016

TCF NATIONAL BANK, Plaintiff-Appellee,
CHRISTINE RICHARDS, Defendant-Appellant.

          Rule 23 order withdrawn October 17, 2016

          Opinion filed October 28, 2016

         Appeal from the Circuit Court of Cook County, No. 13-CH-27302; the Hon. Darryl B. Simko, and the Hon. Anna M. Loftus, Judges, presiding.


          Christine Richards, of Chicago, appellant pro se.

          Scott R. Chandler, Matteo A. Crawford, and Sandra L. Makowka, of David T. Cohen & Associates, Ltd., of Orland Park, for appellee.

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


          REYES, JUSTICE

         ¶ 1 In this mortgage foreclosure action, plaintiff, TCF National Bank, served process on defendant, Christine Richards, by publication. When the defendant did not appear or answer, the circuit court entered a default judgment and ordered a judicial sale of defendant's property. The day before the sale was to occur, defendant filed an emergency motion to stay the sale, which the circuit court granted. One week later, defendant filed a motion to quash the service of process by publication. The circuit court denied the motion to quash (as well as numerous other motions filed by defendant including a motion to vacate, motions to reconsider, and a petition to vacate pursuant to section 2-1401(f) of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401(f) (West 2012)) and ultimately entered an order approving the sale. Defendant now appeals pro se arguing that the circuit court erred when it (1) denied her motion to quash because plaintiff did not meet the requirements for service by publication, (2) denied her motions to reconsider the denial of her motion to quash and motion to vacate, (3) denied her section 2-1401(f) petition, and (4) entered a personal deficiency against her in the order approving the sale. For the reasons that follow, we affirm.

         ¶ 2 BACKGROUND

         ¶ 3 This matter commenced as a mortgage foreclosure action pursuant to the Illinois Mortgage Foreclosure Law (Foreclosure Law) (735 ILCS 5/15-1501 et seq. (West 2012)). Plaintiff filed a complaint on December 10, 2013, alleging defendant was in default for failure to make payments toward the mortgage on the property located at 543 East 92nd Street in Chicago. The relief plaintiff requested included a judicial sale of the real estate involved and a personal deficiency judgment against defendant as guarantor of the note. Under an order entered by the circuit court on September 30, 2013, plaintiff was authorized to serve summons on defendants in all mortgage foreclosure cases through Elite Process Serving & Investigations, Inc. (Elite), until December 31, 2013.

         ¶ 4 On January 8, 2014, plaintiff filed an affidavit for service by publication pursuant to section 2-206(a) of the Code of Civil Procedure (735 ILCS 5/2-206(a) (West 2012)). In the affidavit, counsel for plaintiff averred that she had made "a due and diligent inquiry to find Defendant[ ] to this action, and to ascertain [her] respective places of residence" and that "upon due inquiry such Defendant[ ] cannot be found." In addition to that affidavit, plaintiff filed three additional affidavits. In the first affidavit, special process server Gary McDaniels (McDaniels) of Elite averred that he attempted to serve defendant at the property address seven times between December 12 and 18, 2013. The affidavit further indicated that McDaniels attempted to serve defendant multiple times during the day including twice around 9:30 p.m. After each attempt of service, McDaniels averred that he made no contact with defendant and "was unable to gain access onto the property."

         ¶ 5 In the second affidavit, special process server Christopher Gornik (Gornik) of Elite attested that he attempted to serve defendant at the property address seven times between December 22 and 29, 2013. Gornik averred he was not able to gain entry to the property, but noted that on two occasions dogs were present within the yard of the property and on one occasion the lights inside the property were on.

         ¶ 6 The third affidavit contained the averments of Juliann Pawlowski (Pawlowski) of Elite. Pawlowski averred that her search revealed only one known address for defendant, 543 East 92nd Street in Chicago. Pawlowski attested that on January 2, 2014, upon conducting a "skip trace" of defendant as well as a search of multiple databases (including, but not limited to, social security, employment, voter registration, professional licenses, the department of corrections, and other property records), no other addresses or contact information were found for defendant. Pawlowski further attested that she attempted to call defendant on December 31, 2013, using three different phone numbers, but was unable to contact defendant. Pawlowski also averred that a 1986 Toyota Tercel was registered to defendant at the property address.

         ¶ 7 On January 21, 2014, plaintiff filed a "Certificate of Publication" from the Chicago Daily Law Bulletin, which indicated that the publication notice regarding this foreclosure matter was published on January 6, 13, and 20, 2014.

         ¶ 8 As defendant had failed to file an appearance or answer in the matter, plaintiff moved for a default judgment and a judgment of foreclosure and sale, which were granted on May 23, 2014, by the circuit court. On May 29, 2014, plaintiff filed a "Notice of Entry of Default Judgment, Judgment of Foreclosure, " pursuant to Illinois Supreme Court Rule 113(d) (eff. May 1, 2013), which indicated the notice of default had been mailed to defendant at the property address on May 27, 2014.

         ¶ 9 Thereafter, notice of the judicial sale of the property was then mailed to defendant at the property address on August 14, 2014, and indicated the sale would take place on August 26, 2014, at 10:30 a.m.

         ¶ 10 The day the property was set to be sold, defendant appeared in court pro se and presented an emergency motion to stay the sale of the property. Defendant did not challenge the circuit court's jurisdiction in this motion. Over plaintiff's objection, the circuit court granted defendant's motion and stayed the sale of the property until October 21, 2014.

         ¶ 11 Thereafter, defendant filed a series of motions pro se. On September 2, 2014, defendant filed a motion to "vacate all orders and judgments and dismiss with prejudice." In relevant part, defendant argued that the service that was attempted on her was improper as it occurred during a "known holiday season" when she was visiting relatives. However, defendant's affidavit, which was attached to her motion, only averred that service was attempted on her "during the holiday vacation season."

         ¶ 12 On September 16, 2014, the circuit court denied defendant's motion to vacate. That same day, defendant filed another motion to quash in which she argued that plaintiff (1) did not obtain leave to have a special process server serve the summons and (2) did not produce any affidavits describing the diligent efforts to inquire about her whereabouts. Defendant further argued that she received no notices from the clerk of the circuit court of Cook County. This motion was also supported by defendant's own affidavit in which she attested that (1) she resided at the property address "at all times relevant to said Complaint, " (2) she had not been concealed within the state, (3) her "place of residence and whereabouts may be readily ascertained by records ...

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