First Midwest Bank v. Allen

2023 IL App (5th) 220143-U

• Court: Appellate Court of Illinois
• Decided: September 22, 2023
• Docket: 5-22-0143
• Status: Unpublished

Opinion

2023 IL App (5th) 220143-U NOTICE NOTICE Decision filed 09/22/23. The This order was filed under text of this decision may be NO. 5-22-0143 Supreme Court Rule 23 and is changed or corrected prior to not precedent except in the the filing of a Petition for IN THE limited circumstances allowed Rehearing or the disposition of under Rule 23(e)(1). the same. APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

FIRST MIDWEST BANK, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Vermilion County. ) v. ) No. 18-CH-138 ) JOHN T. ALLEN JR. and MARGUERITE ALLEN, ) Honorable ) Mark S. Goodwin, Defendants-Appellants. ) Judge, presiding. ______________________________________________________________________________

JUSTICE CATES delivered the judgment of the court. Presiding Justice Boie and Justice Barberis concurred in the judgment.

ORDER

¶1 Held: The defendants failed to file their section 2-1401 petition for relief from judgment in the same proceeding in which the allegedly void order was entered as required under 735 ILCS 5/2-1401(b) (West 2020), and the petition should have been dismissed without prejudice; the trial court erred in denying the section 2-1401 petition, and that order is vacated and the cause is remanded with instructions to dismiss the defendants’ section 2-1401 petition without prejudice.

¶2 The defendants, John Allen and Marguerite Allen, appeal from the trial court’s orders

denying their petition for relief from judgment under section 2-1401 of the Code of Civil Procedure

(Code) (735 ILCS 5/2-1401 (West 2020)) and denying their motion to reconsider that order. The

defendants claim that the trial court erred in finding that the provision in subsection 2-1401(b)

(735 ILCS 5/2-1401(b) (West 2020)), requiring that a section 2-1401 petition be filed in the same

proceeding in which the challenged order was entered, applied to a section 2-1401 petition

challenging a void order. The defendants also claim that the trial court erred in denying their 1 section 2-1401 petition on the merits. For the following reasons, we vacate the order denying the

defendants’ section 2-1401 petition and remand the case to the trial court with instructions to

dismiss the section 2-1401 petition without prejudice.

¶3 I. BACKGROUND

¶4 This lawsuit began in September 2018, when the plaintiff, First Midwest Bank (Bank), 1

filed a mortgage foreclosure action against the defendants in the circuit court of Vermilion County

in case No. 2018-CH-138 (the 2018 action). The Bank had filed a prior foreclosure action against

the defendants in Vermilion County in case No. 2012-CH-39 (the 2012 action), but that case was

dismissed on the Bank’s motion after the defendants became current on their monthly payments.

During the course of the 2018 action, the defendants filed a section 2-1401 petition seeking relief

from an allegedly void order that had been entered in the 2012 action. This appeal arises from the

trial court’s decision to deny that petition. The background and procedural history, taken from the

pleadings and supporting exhibits contained in the record on appeal, follows.

¶5 In April 2010, the defendants obtained a $104,000 loan from the Bank. The defendants

signed a promissory note and mortgaged their home in Danville, Illinois, as security for the loan.

In 2011, the defendants fell behind on their monthly mortgage payments. Defendant John Allen

filed a petition seeking a discharge of his personal debts under Chapter 7 of the United States

Bankruptcy Code (11 U.S.C. § 727 (2012)). John Allen was granted a discharge of his personal

debts on May 18, 2012. 2

1 During the pendency of this appeal, First Midwest Bank filed a motion to substitute Old National Bank, a successor by merger, as the appellee in this matter. The motion was taken with the case and is hereby granted. For consistency, we will refer to the plaintiff-appellee as “Bank” in this order. 2 Under Chapter 7 of the Bankruptcy Code, a creditor may enforce a valid lien, such as a mortgage or security interest, against property of the debtor that is secured by the lien, provided the lien has not been avoided in the bankruptcy case. 11 U.S.C. § 724 (2012). 2 ¶6 Meanwhile, on February 6, 2012, the Bank brought a mortgage foreclosure action against

the defendants in the circuit court of Vermilion County in cause No. 2012-CH-39. On May 11,

2012, the circuit court entered a summary judgment in favor of the Bank. In the written judgment

of foreclosure, the defendants were ordered to pay the sum of $116,937.18, plus interest and costs,

to the Bank. The 2012 judgment of foreclosure provided that the period for redemption would end

on September 13, 2012, or such other date as ordered by the circuit court. If the defendants were

unable to pay the full amount of the judgment, their residential property would be sold in an auction

on September 20, 2012. The 2012 judgment of foreclosure included a finding under Illinois

Supreme Court Rule 304(a) (eff. Mar. 8, 2016) that there was no just reason to delay enforcement

or appeal. On July 2, 2012, the circuit court denied the defendants’ motion to reconsider the

judgment of foreclosure. On July 31, 2012, the defendants filed an appeal in the Illinois Appellate

Court, Fourth District.

¶7 On September 10, 2012, John Allen filed a voluntary petition for debtor relief under

Chapter 13 of the United States Bankruptcy Code (11 U.S.C. § 1301 et seq. (2012)). Marguerite

Allen was not a party in that case. Upon the filing of the petition, an automatic stay was issued as

to all existing litigation involving John Allen, including the appeal from the 2012 foreclosure

order. During the next three years, the defendants repaid the arrearage owed to the Bank under a

plan approved by the bankruptcy court. With the defendants current on their obligations, the Bank

took steps to dismiss the foreclosure litigation against them. On November 15, 2015, the

bankruptcy court granted the Bank’s motion to modify the automatic stay as to the pending appeal.

¶8 In April 2016, the Bank filed a motion to dismiss the defendants’ appeal, along with a

supporting affidavit. The Bank notified the appellate court that the bankruptcy court had lifted the

stay. The Bank asserted that there was no longer a justiciable case or controversy warranting

3 appellate review because the defendants had paid the arrearage and were current on their monthly

mortgage obligations. The Bank asked the appellate court to dismiss the defendants’ appeal and to

remand the case to the circuit court with instructions to vacate the 2012 judgment of foreclosure

and to dismiss the foreclosure case. On June 8, 2016, the appellate court entered an order

dismissing the appeal, without a remand. The mandate was issued July 14, 2016.

¶9 On July 8, 2016, the Bank filed a motion to vacate the 2012 judgment of foreclosure and

to dismiss its complaint in the 2012 action.3 Following a hearing on July 21, 2016, the circuit court

vacated the 2012 judgment of foreclosure and dismissed the Bank’s complaint for foreclosure.

¶ 10 On September 18, 2018, the Bank filed the current foreclosure complaint against the

defendants in the circuit court of Vermilion County in 2018-CH-138. The United States of America

was later added as a party-defendant because it had several recorded tax liens against the

defendants’ residential property totaling almost $80,000. In the second amended complaint filed

on November 22, 2019, the Bank alleged that the defendants had defaulted on their payment

obligations under the note and mortgage as of January 1, 2018, and that the total amount due under

the secured note was $106,356.40, plus interest and costs. The Bank sought a judgment to foreclose

the mortgage and to sell the mortgaged property. The Bank also sought a personal judgment for

any deficiency against Marguerite Allen. It did not seek a deficiency judgment against John Allen

due to his prior Chapter 7 discharge in bankruptcy.

¶ 11 On January 19, 2021, the defendants filed a petition for relief from judgment under section

2-1401(f) of the Code (735 ILCS 5/2-1401(f) (West 2020)) in the 2018 foreclosure action. The

defendants claimed that the order entered July 21, 2016, purporting to vacate the 2012 judgment

3 The motion was signed by the Bank’s attorney on June 16, 2016, but it was not file stamped until July 8, 2016. 4 of foreclosure, was void. The defendants alleged that the 2012 judgment of foreclosure included a

Rule 304(a) finding that there was no just reason to delay enforcement or appeal of the judgment;

that the judgment of foreclosure became final and immediately appealable on August 2, 2012,

upon the denial of the defendants’ motion to reconsider; and that thereafter the circuit court lost

jurisdiction to amend or vacate the judgment of foreclosure. The defendants further alleged that

the dismissal of the appeal did not restore the circuit court with authority to vacate or modify the

judgment and left the 2012 judgment of foreclosure standing as if the appeal never occurred.

¶ 12 The Bank filed a motion to strike the defendants’ section 2-1401 petition. The Bank argued

that the petition was not filed in the same proceeding in which the challenged order was entered

as required under section 2-1401(b) of the Code (735 ILCS 5/2-1401(b) (West 2020)), and because

the petition was not filed within two years after entry of the challenged order as required under

section 2-1401(c) of the Code (735 ILCS 5/2-1401(c) (West 2020)). In reply, the defendants

argued that subsection 2-1401(b) and subsection 2-1401(c) did not apply to a section 2-1401

petition seeking relief from a void order.

¶ 13 After considering the oral and written arguments of the parties, the trial court denied the

defendants’ section 2-1401 petition. In a written order entered May 5, 2021, the trial court found

that the defendants failed to file their section 2-1401 petition in the same proceeding in which the

challenged order had been entered. The trial court further found that the matters pertinent to the

petition were contained in the 2012 proceeding, and that the filing of the section 2-1401 petition

in an entirely separate proceeding obfuscated a proper analysis of the issues raised in the petition.

In its written order, the trial court went on to find that even if the defendants’ arguments were

considered on the merits, “the ultimate conclusion” was that the order of July 21, 2016, vacating

the 2012 judgment of foreclosure in 2012-CH-39, was not void because the circuit court had

5 jurisdiction over the proceedings on that date. The circuit court denied the defendants’ motion to

reconsider. This appeal followed.

¶ 14 II. ANALYSIS

¶ 15 Initially, we consider whether the defendants’ section 2-1401 petition for relief from

judgment was properly denied because the petition was not filed in the same proceeding in which

the allegedly void order was entered. The defendants assert that their petition was brought under

subsection 2-1401(f) (735 ILCS 5/2-1401(f) (West 2020)) to attack a void order. They argue that

a petition brought under subsection 2-1401(f) is not subject to the provision in subsection 2-

1401(b) (735 ILCS 5/2-1401(b) (West 2020)), requiring that a section 2-1401 petition be filed in

the same proceeding in which the challenged order was entered.

¶ 16 Section 2-1401 provides a comprehensive statutory procedure for obtaining relief from a

final order or judgment more than 30 days after it was entered. 735 ILCS 5/2-1401 (West 2020);

Warren County Soil & Water Conservation District v. Walters, 2015 IL 117783, ¶ 31; People v.

Vincent, 226 Ill. 2d 1, 7 (2007). Subsection 2-1401(b) provides that the petition “must be filed in

the same proceeding in which the order or judgment was entered.” 735 ILCS 5/2-1401(b) (West

2020); Vincent, 226 Ill. 2d at 7. The filing of the petition is considered a new proceeding, not a

continuation of the original proceeding. 735 ILCS 5/2-1401(b) (West 2020). The petition begins

an “independent and separate action,” and it must be supported by an affidavit or matters not

already of record. 735 ILCS 5/2-1401(b) (West 2020); Warren County, 2015 IL 117783, ¶ 31.

¶ 17 A section 2-1401 petition can present either a factual or legal challenge to a final judgment

or order. Warren County, 2015 IL 117783, ¶ 31. The nature of the challenge dictates the proper

standard of appellate review. Warren County, 2015 IL 117783, ¶ 31. When a section 2-1401

petition presents a purely legal claim, the standard of review is de novo. Warren County, 2015 IL

6 117783, ¶ 47. When a section 2-1401 petition presents a fact-dependent challenge to a final

judgment or order, the question is resolved by considering the particular facts, circumstances, and

equities of the underlying case, and the trial court’s decision is reviewed for an abuse of discretion.

Warren County, 2015 IL 117783, ¶ 51.

¶ 18 A section 2-1401 petition may be brought to attack a void judgment. Sarkissian v. Chicago

Board of Education, 201 Ill. 2d 95, 104 (2002). Our supreme court has determined that some of

the general rules pertaining to section 2-1401 petitions do not apply to petitions brought on

voidness grounds under section 2-1401(f). Sarkissian, 201 Ill. 2d at 104. Petitions brought on

voidness grounds are not required to be filed within two years of the date the challenged order or

judgment was entered. Sarkissian, 201 Ill. 2d at 104. Additionally, an allegation that the judgment

or order is void “substitutes for and negates” the need to allege the existence of a meritorious

defense and due diligence. Sarkissian, 201 Ill. 2d at 104. The Sarkissian court, however, did not

indicate that the requirements in subsection 2-1401(b), including the requirement that the petition

be filed in the same proceeding in which the challenged order or judgment was entered, were not

applicable to a section 2-1401 petition attacking a void order.

¶ 19 Section 2-1401(b) expressly provides that a section 2-1401 petition must be brought in the

same proceeding in which the order or judgment was entered. 735 ILCS 5/2-1401(b) (West 2020);

Vincent, 226 Ill. 2d at 7. The statute contains no exclusion for a petition brought to attack a void

judgment or order. When statutory language is clear, it must be given effect. See generally Illinois

Graphics Co. v. Nickum, 159 Ill. 2d 469, 479 (1994). Illinois courts have long held that section 2-

1401 requires that the postjudgment petition be filed in the same proceeding in which the

challenged judgment was entered and, when possible, heard by the same judge who rendered the

judgment. See, e.g., Price v. Philip Morris, Inc., 2015 IL 117687, ¶¶ 35-37 (recognizing the

7 statutory requirement that a postjudgment petition be filed in the same proceeding in which the

error occurred and if possible before the same judge who rendered the original judgment (citing

People v. Sheppard, 405 Ill. 79, 82 (1950))). 4

¶ 20 Here, the trial court correctly found that the defendants failed to file their section 2-1401

petition for relief from a void order in the same proceeding in which the order was entered. In its

order, the trial court aptly noted that the pleadings, orders, and other matters of record pertinent to

the defendants’ petition were contained in the original 2012 mortgage foreclosure action, and that

the record in that proceeding was not before the court. At that point, the trial court should have

dismissed the petition on that basis, rather than denying it. That should have ended the matter. The

trial court, however, went on to indicate that “even if” the defendants’ arguments were considered

on the merits, “the ultimate conclusion” was that the order of July 21, 2016, vacating the judgment

of foreclosure in 2012-CH-39, was not void. That was improper, particularly given the trial court’s

recognition that it did not have the complete record of proceedings in the 2012 action. We

recognize that the defendants attached some of the pleadings filed in the 2012 proceeding as

exhibits in support of their section 2-1401 petition. That said, the circuit court did not have the

opportunity to review the entire record of the proceedings in the 2012 action, and neither do we.

¶ 21 Here, the defendants elected to file their petition for relief from a void order under section

2-1401 of the Code, but they failed to file that petition in the original foreclosure proceeding in

which the challenged order was entered as required under section 2-1401(b) (735 ILCS 5/2-

1401(b) (West 2020)). In light of the procedural deficiency, the trial court did not have the benefit

4 In Price, the petitioner filed a section 2-1401 petition in the trial court, seeking to vacate the judgment of the appellate court. The supreme court held that the statute authorizing a section 2-1401 petition for relief from judgment does not authorize the circuit court to vacate a judgment of the reviewing court, and that section 2-1401 is inapplicable to reviewing courts. See Price, 2015 IL 117687, ¶¶ 38-39, 45. 8 of the entire record in the original proceeding, and therefore, it should not have considered the

section 2-1401 petition on the merits. The trial court should have simply dismissed the petition

without prejudice.

¶ 22 III. CONCLUSION

¶ 23 After reviewing the record, we find that the defendants failed to file their section 2-1401

petition in the same proceeding in which the allegedly void order was entered, as required in

section 2-1401(b), and therefore, the section 2-1401 petition should have been dismissed without

prejudice. Accordingly, we vacate the trial court’s order denying the defendants’ section 2-1401

petition, and we remand the case to the trial court with instructions to dismiss the defendants’

section 2-1401 petition without prejudice.

¶ 24 Order vacated; cause remanded with directions.