Bank of America, N.A. v. Kulesza

2014 IL App (1st) 132075, 14 N.E.3d 684

• Court: Appellate Court of Illinois
• Decided: June 27, 2014
• Docket: 1-13-2075
• Status: Unpublished

Opinion

2014 IL App (1st) 132075 No. 1-13-2075 Opinion filed June 27, 2014

FIFTH DIVISION

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

BANK OF AMERICA, N.A., Successor by Merger to ) Appeal from the BAC Home Loans Servicing, LP, f/k/a ) Circuit Court of Countrywide Home Loan Servicing, LP, ) Cook County. ) Plaintiff-Appellee, ) v. ) No. 09 CH 39432 ) MARTA KULESZA and TOMASZ SKUTNIK, ) ) Defendants-Appellants ) ) (National City Bank, Unknown Owners and Nonrecord ) Claimants, ) ) Honorable Defendants). ) Allen Price Walker, ) Judge Presiding.

JUSTICE McBRIDE delivered the judgment of the court, with opinion. Presiding Justice Gordon and Palmer concurred in the judgment and opinion.

OPINION

¶1 Plaintiff, Bank of America, N.A., filed a mortgage foreclosure complaint in October

2009, against defendants Marta Kulesza and Tomasz Skutnik. In August 2010, a default

judgment and judgment for foreclosure and sale were entered in plaintiff's favor. A judicial sale

occurred in November 2011, and the trial court granted plaintiff's motion to confirm the sale in

April 2012. In October 2012, defendants filed a motion to vacate pursuant to section 2-1401 of No. 1-13-2075

the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2012)). Plaintiff filed a motion to

dismiss defendant's motion, which the trial court granted in June 2013.

¶2 Defendants appeal, arguing that the trial court erred in granting the motion to dismiss

because original plaintiff BAC Home Loans Servicing, LP (BAC), is not a subsidiary of

substituted plaintiff Bank of America, N.A. (BoA), and, therefore, BAC is not exempt from the

Illinois Collection Agency Act (Collection Act) (225 ILCS 425/1 et seq. (West 2012)) and any

judgment entered is void.

¶3 In October 2009, plaintiff filed a complaint to foreclose the mortgage against defendants.

The complaint alleged that on February 15, 2006, defendants, as mortgagors, executed a

mortgage in the amount of $1,130,500, for the property located at 2200 Harrison Street in

Glenview, Illinois. The complaint stated that defendants had not paid the monthly payments

since February 2009. Defendants were personally served in October 2009.

¶4 In January 2010, plaintiff filed a motion for entry of an order of default and judgment of

foreclosure and sale. Plaintiff refiled this motion in March 2010, June 2010, and August 2010.

On August 18, 2010, the trial court found defendants to be in default and entered a judgment of

foreclosure and sale. Plaintiff filed a notice of sale for November 22, 2010. On November 17,

2010, Kulesza filed a pro se motion to stop the sheriff's sale. The trial court denied Kulesza's

motion without prejudice on November 19, 2010.

¶5 Plaintiff reset the judicial sale for November 28, 2011. In December 2011, plaintiff filed

a motion for an order approving the report of sale and distribution. Plaintiff also filed a motion

to substitute BoA as named plaintiff because BAC had merged into BoA.

¶6 On January 24, 2012, an attorney filed an appearance for defendants. The trial court set a

briefing schedule for plaintiff's motion to approve the sale, but defendants failed to file a brief.

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On April 11, 2012, the trial court entered an order approving the report of sale and distribution,

confirming the sale and order of possession. The trial court also granted plaintiff's motion to

substitute BoA as party plaintiff.

¶7 On October 15, 2012, defendants filed a motion to vacate pursuant to section 2-1401 of

the Code of Civil Procedure. Defendant argued in their motion as follows.

"1. This lawsuit was filed by BAC Home Loan Service,

LP as Plaintiff.

2. At the time this lawsuit was filed, plaintiff was not a

registered debt collector as shown in the attached IDFPR [Illinois

Department of Financial and Professional Regulation] Inquiry.

See affidavit of Stephen D. Richek attached.

3. Servicing Mortgages is clearly an activity in the purview

of a debt collector and the main business of a Mortgage Service is

a debt collection activity, see 205 ILCS 635/1-4.

4. An unregistered debt collector cannot act as a Plaintiff

in a lawsuit LVNV v. Trice and all orders entered are void.

WHEREFORE, Defendant's pray that all orders in the case be

vacated and the case be dismissed."

¶8 The affidavit attached from their attorney stated that he received a response from the

Secretary of State that BAC "was never registered in Illinois as a debt collector." The

certification from the Secretary of State, dated December 5, 2011, stated that BAC "does not

now hold nor has ever held a license" under the Collection Act.

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¶9 In February 2013, plaintiff filed a motion to dismiss defendants' section 2-1401 petition.

In its motion, plaintiff argued that defendants' section 2-1401 petition should be dismissed

pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2012))

because defendants failed to allege sufficient facts to support their assertion that plaintiff's

complaint was void since BAC is not a registered debt collector under the Collection Act. In

response, defendants stated that plaintiff's motion to dismiss must fail because (1) plaintiff

cannot refute that BAC is an unlicensed debt collector based on its unsupported statement that

BAC is a subsidiary of BoA, and (2) "defendants are confused as to how a Limited Partnership

(LP) can be subsidiary. A Limited Partnership requires more than one (1) partner so it is not a

subsidiary."

¶ 10 Plaintiff's reply asserted that defendants' response was "ultimately bereft of any argument

that their Petition is viable and of merit." Plaintiff contends that defendants' petition has failed to

allege sufficient facts to support their allegations. Plaintiff also attached documents setting forth

that BAC was a subsidiary of BoA at the time the complaint was filed. One document was a

portion of a list of BoA's direct and indirect subsidiaries as of December 31, 2009, which

included BAC in the list. The second document was a corporate disclosure statement filed in

district court case in the Southern District of Indiana stating, "0.1% of BAC Home Loans

Servicing, LP is owned by BAC GP, LLC, and 99.9% of BAC Home Loans Servicing, LP is

owned by BANA LP, LLC. Both BAC GP, LLC and BANA LP, LLC are wholly-owned

subsidiaries of Bank of America, N.A." In June 2013, the trial court granted plaintiff's motion to

dismiss with prejudice.

¶ 11 This appeal followed.

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¶ 12 On appeal, defendants argue that plaintiff is not exempt from the Collection Act because

BAC is not a subsidiary of BoA. Plaintiff maintains that defendants' claim is meritless because

BAC was exempt from the Collection Act.

¶ 13 Generally, a section 2-1401 petition must show the existence of a meritorious defense to

the original action and must show due diligence in bringing the petition. Sarkissian v. Chicago

Board of Education, 201 Ill. 2d 95, 103 (2002); see also 735 ILCS 5/2-1401(b), (c) (West 2012).

However, the supreme court in Sarkissian held that pursuant to paragraph (f) of section 2-1401,

the general rules for filing a section 2-1401 petition do not apply to petitions challenging a

judgment on voidness grounds. Sarkissian, 201 Ill. 2d at 104. "Petitions brought on voidness

grounds need not be brought within the two-year time limitation. Further, the allegation that the

judgment or order is void substitutes for and negates the need to allege a meritorious defense and

due diligence." Sarkissian, 201 Ill. 2d at 104.

¶ 14 " '[A] judgment, order or decree entered by a court which lacks jurisdiction of the parties

or of the subject matter, or which lacks the inherent power to make or enter the particular order

involved, is void, and may be attacked at any time or in any court, either directly or

collaterally.' " Sarkissian, 201 Ill. 2d at 103 (quoting Barnard v. Michael, 392 Ill. 130, 135

(1945)). Here, defendants’ postjudgment motion argues that BAC was not a licensed debt

collector under the Collection Act and, thus, all orders entered by the court are void. "Review of

a judgment on a section 2-1401 petition that is requesting relief based on the allegation that the

judgment is void shall be de novo." Protein Partners, LLP v. Lincoln Provision, Inc., 407 Ill.

App. 3d 709, 716 (2010) (citing People v. Vincent, 226 Ill. 2d 1, 18 (2007)).

¶ 15 The purpose of the Collection Act is to

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" 'protect consumers against debt collection abuse.' 225 ILCS

425/1a (West 2010). It provides that '[n]o collection agency shall

operate in this State, *** engage in the business of collecting,

solicit claims for others, *** exercise the right to collect, or receive

payment for another of any account, bill or other indebtedness,

without registering under this Act.' 225 ILCS 425/4 (West 2010).

The [Collection] Act defines a 'collection agency' or a 'debt

collector' as 'any person who, in the ordinary course of business,

regularly, on behalf of himself or herself or others, engages in debt

collection.' 225 ILCS 425/2 (West 2010). 'Debt collection' is

defined as 'any act or practice in connection with the collection of

consumer debts' and ' "[c]onsumer debt" *** means money,

property, or their equivalent, due or owing or alleged to be due or

owing from a natural person by reason of a consumer credit

transaction.' Id. Finally, a 'consumer credit transaction' is a

'transaction between a natural person and another person in which

property, service, or money is acquired on credit by that natural

person from such other person primarily for personal, family, or

household purposes.' Id." Aurora Loan Services, LLC v. Kmiecik,

2013 IL App (1st) 121700, ¶ 28.

¶ 16 However, section 2.03(1) of the Collection Act provides for certain exemptions:

"This Act does not apply to persons whose collection activities are

confined to and are directly related to the operation of a business

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other than that of a collection agency, and specifically does not

include the following:

1. Banks, including trust departments, affiliates, and

subsidiaries thereof, fiduciaries, and financing and lending

institutions (except those who own or operate collection

agencies)[.]" 225 ILCS 425/2.03(1) (West 2012).

¶ 17 This court has already held in Kmiecik that bank subsidiaries are exempt from the

Collection Act. Kmiecik, 2013 IL App (1st) 121700, ¶ 38.

¶ 18 Defendants assert without citation to any case law that BAC could not be a subsidiary of

BoA because under the Collection Act, "only subsidiaries are exempt, not a limited partnership

that is owned by Banks' subsidiaries." Supreme Court Rule 341(h)(7) requires an appellant to

include in its brief an "[a]rgument, which shall contain the contentions of the appellant and the

reasons therefor, with citation of the authorities and the pages of the record relied on." Ill. S. Ct.

R. 341(h)(7) (eff. July 1, 2008). It is well settled that a contention that is supported by some

argument but does not cite any authority does not satisfy the requirements of Supreme Court

Rule 341(h)(7), and bare contentions that fail to cite any authority do not merit consideration on

appeal. Wasleff v. Dever, 194 Ill. App. 3d 147, 155-56 (1990).

¶ 19 Contrary to defendants' contention, the Collection Act does not limit exemptions to first-

tier subsidiaries. According to the exhibits provided in the trial court, BAC was owned by

entities that were subsidiaries of BoA. The cardinal rule in construing a statute, to which all

others are subordinate, is to ascertain and give effect to the intent of the legislature. Alvarez v.

Pappas, 229 Ill. 2d 217, 228 (2008). To determine legislative intent, we turn to the language of

the statute, which is the best indicator of its intent. Alvarez, 229 Ill. 2d at 228. “[A]ll words and

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phrases must be interpreted in light of other relevant provisions of the statute and must not be

construed in isolation.” Brucker v. Mercola, 227 Ill. 2d 502, 514 (2007). “Each word, clause

and sentence of the statute, if possible, must be given reasonable meaning and not rendered

superfluous.” Brucker, 227 Ill. 2d at 514. Further, we may not add provisions that are not found

in a statute. Acme Markets, Inc. v. Callanan, 236 Ill. 2d 29, 38 (2009).

¶ 20 Nothing in section 2.03(1) limits exemptions to first-tier subsidiaries, and we will not

read into its language any additional language imposing such a limitation. Moreover, we note

that the legislature included a limitation to "any first tier subsidiary of a bank" for an exemption

in the Residential Mortgage License Act of 1987 (205 ILCS 635/1-4(d)(1)(ix) (West 2012)). "It

is a generally accepted canon of construction that the express inclusion of a provision in one part

of a statute and its omission in a parallel section is an intentional exclusion from the latter."

People v. Olsson, 2011 IL App (2d) 091351, ¶ 9. The absence of that language in the exemption

provision of section 2.03(1) cannot be ignored as defendants' assert.

¶ 21 Under well-established precedent and specifically under the holding of Kmiecik, we can

take judicial notice that other judicial decisions have recognized that BAC is a subsidiary of

BoA. "An appellate court may take judicial notice of readily verifiable facts if doing so 'will "aid

in the efficient disposition of a case," ' even if judicial notice was not sought in the trial court."

Kmiecik, 2013 IL App (1st) 121700, ¶ 37 (quoting Department of Human Services v. Porter, 396

Ill. App. 3d 701, 725 (2009), quoting Muller v. Zollar, 267 Ill. App. 3d 339, 341-42 (1994)).

"Specifically, a reviewing court may take judicial notice of a written decision that is part of the

record of another court because these decisions are readily verifiable facts that are capable of

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' "instant and unquestionable demonstration." ' " Id. (quoting Hermesdorf v. Wu, 372 Ill. App. 3d

842, 850 (2007), quoting May Department Stores Co. v. Teamsters Union Local No. 743, 64 Ill.

2d 153, 159 (1976), quoting 9 John Henry Wigmore, Evidence § 2571, at 548 (3d ed. 1940)).

¶ 22 Here, plaintiff submitted documentation from a federal case detailing BAC's ownership

by two subsidiaries of BoA and BoA's list of its subsidiaries, which includes BAC. We also

observe that numerous cases from other jurisdictions have recognized that BAC was a subsidiary

of BoA. See Ridenour v. Bank of America, N.A., No. 13-cv-0317-BLW, 2014 WL 2452990, at

*1 (D. Idaho May 22, 2014) ("BAC Home Loans Servicing, LP (a Bank of America subsidiary

created to service acquired loans)"); Pniewski v. U.S. Bank National Ass'n, No. 13 C 3638, 2014

WL 1052813, at *1 (N.D. Ill. Mar. 19, 2014) ("BAC Home Loans Servicing, LP (BAC), a

subsidiary of Bank of America, N.A."); Bank of America, N.A. v. Stewart, 2014-Ohio-723, ¶ 4

("BAC Home Loans Servicing, LP, a subsidiary of Bank of America, N.A."); Walker v. Bank of

America, N.A., No. 11-783 ADM/JSM, 2013 WL 5771154, at *1 n.1 (D. Minn. Oct. 24, 2013)

("At the time, BAC was a wholly-owned subsidiary of Bank of America; it merged into the Bank

of America in July 2011."); Kolbe v. BAC Home Loans Servicing, LP, 738 F.3d 432, 438 n.3

(1st Cir. 2013) ("BAC Home Loans Servicing was a wholly owned subsidiary of Bank of

America, N.A., which itself is a wholly owned subsidiary of Bank of America Corporation, the

publicly traded company. BAC Home Loans Servicing has merged into Bank of America,

N.A."); In re Atkins, 497 B.R. 568, 569 (Bankr. D. Minn. 2013) ("Both loans are serviced by

BAC Home Loan Servicing, LP., a subsidiary of Bank of America, N.A.").

¶ 23 We take judicial notice of these written decisions and find that BAC was a subsidiary of a

BoA and was exempt from the Collection Act. As we held in Kmiecik, we need not reach the

question of whether a mortgage foreclosure action qualifies as debt collection under the

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Collection Act. Therefore, we find the trial court properly granted plaintiff's motion to dismiss

defendants' section 2-1401 petition and we need not consider defendants' additional arguments

that the foreclosure judgment was void under the Collection Act.

¶ 24 Based on the foregoing reasons, we affirm the decision of the circuit court of Cook

County.

¶ 25 Affirmed.