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The Bank of New York Mellon v. Laskowski

Supreme Court of Illinois

January 19, 2018

THE BANK OF NEW YORK MELLON, Appellee,
v.
MARK E. LASKOWSKI et al. (Pacific Realty Group, LLC, Appellant

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

          OPINION

          THOMAS JUSTICE

         ¶ 1 The issue we must decide is whether Pacific Realty Group, LLC, timely filed its motion to quash service. We hold that it did.

         ¶ 2 BACKGROUND

         ¶ 3 On June 11, 2010, in its capacity as the trustee for certain certificate holders of an alternative loan trust, the Bank of New York Mellon (the Bank) filed a residential mortgage foreclosure complaint against Mark Laskowski, Pacific Realty Group, LLC (Pacific), and others in Will County circuit court. In July 2010, the Bank filed an affidavit for service by publication stating that, after a due diligence search, it was unable to locate or serve Pacific. The Bank's search included both directory assistance records and the Illinois Secretary of State's business registration records. After service by publication was made, Pacific failed to appear or otherwise respond to the complaint. In July 2012, the trial court entered an order of default and a judgment of foreclosure. In the judgment, the trial court made a specific finding that service of process was properly made as to Pacific. In February 2013, the subject property was sold at a sheriff's sale.

         ¶ 4 In April 2013, the Bank filed a motion requesting an order approving the report of the sale of the property and the proposed distribution of the proceeds, as well as an order of possession. The motion was noticed up for April 18, 2013, and on that date Pacific's attorney showed up for the first time and filed an appearance. However, because the Bank failed to appear, the trial court on its own motion dismissed the Bank's case for want of prosecution (DWP). Shortly thereafter, the Bank moved to vacate the DWP. On May 30, 2013, the trial court granted the Bank's motion and reinstated the case.

         ¶ 5 On July 18, 2013, Pacific filed a motion to quash service of process. The motion alleged that Pacific is a foreign LLC registered in New Mexico and that it does not have a registered agent in Illinois. According to Pacific, this means that service by publication was improper because section 1-50 of the Limited Liability Company Act (805 ILCS 180/1-50 (West 2010)) does not allow an unregistered foreign LLC to be served in that manner. In May 2014, the trial court denied Pacific's motion. In doing so, the trial court first found that the motion was untimely because it was filed more than 60 days after Pacific filed its appearance in the case. See 735 ILCS 5/15-1505.6(a) (West 2012). The trial court also denied the motion on the merits, holding that service by publication was proper. The trial court subsequently entered an order approving the report of the sheriff's sale and the proposed distribution of the proceeds.

         ¶ 6 Pacific appealed, and a divided appellate court affirmed the trial court's decision denying Pacific's motion. 2017 IL App (3d) 140566. On appeal, Pacific argued both that its motion to quash service was timely and that it should have been granted on the merits. The appellate court majority began with the timeliness question, citing section 15-1505.6(a) of the Illinois Mortgage Foreclosure Law (735 ILCS 5/15-1505.6(a) (West 2012)). In relevant part, that section states that, "unless extended by the court for good cause shown, " the deadline for filing a motion to quash service in a residential foreclosure case is "60 days after *** the date that the moving party filed an appearance." Id. § 15-1505.6(a)(i). The majority explained that, although Pacific filed its appearance on April 18, 2013, it did not file its motion to quash service until July 18, 2013, which was nearly 90 days later. 2017 IL App (3d) 140566, ¶ 16. As importantly, Pacific did not seek or obtain an extension of the 60-day deadline "for good cause, " as section 15-1505.6(a) allows. Id. Consequently, the majority held, Pacific's motion to quash was clearly untimely, and the trial court was correct to deny it as such. Id. As a final matter, the majority stated that, because it affirmed the trial court's finding that Pacific's motion was untimely, it "need not address *** whether the service by publication on Pacific in this case was proper." Id. ¶ 17.

         ¶ 7 Justice Holdridge dissented. His position was that, under the principles announced by this court in Case v. Galesburg Cottage Hospital, 227 Ill.2d 207 (2007), "the 60-day deadline for contesting service could not have applied" while the case was DWP. 2017 IL App (3d) 140566, ¶ 23 (Holdridge, J., dissenting). Rather, that deadline began to run only when the case was reinstated, which occurred on May 30, 2013. Id. Pacific's motion to quash therefore was timely, as it was filed 49 days later, on July 18, 2013. Id.

         ¶ 8 We granted Pacific's petition for leave to appeal (Ill. S.Ct. R. 315 (eff. Mar. 15, 2016)).

         ¶ 9 DISCUSSION

         ¶ 10 In this court, Pacific raises the same two arguments that it raised in the appellate court below. First, Pacific argues that its motion to quash service was timely. Second, Pacific argues that its motion to quash service should have been granted because service by publication was improper in this case. We will begin with the timeliness question.

         ¶ 11 Timeliness

         ¶ 12 Pacific's timeliness argument raises a question of statutory interpretation, and the principles governing such inquiries are familiar and well settled. The cardinal rule of statutory construction is to ascertain and give effect to the legislature's intent. People v. Johnson, 2017 IL 120310, ¶ 15. The most reliable indicator of legislative intent is the language of the statute, given its plain and ordinary meaning. Id. That said, a court also will presume that the legislature did not intend absurd, inconvenient, or unjust results. Id. Consequently, where a plain or literal ...


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