Illinois Service Federal Savings and Loan Association of Chicago v. Manley

2015 IL App (1st) 143089, 43 N.E.3d 169
CourtAppellate Court of Illinois
DecidedSeptember 29, 2015
Docket1-14-3089
StatusUnpublished
Cited by7 cases

This text of 2015 IL App (1st) 143089 (Illinois Service Federal Savings and Loan Association of Chicago v. Manley) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Illinois Service Federal Savings and Loan Association of Chicago v. Manley, 2015 IL App (1st) 143089, 43 N.E.3d 169 (Ill. Ct. App. 2015).

Opinion

2015 IL App (1st) 143089 No. 1-14-3089 Opinion filed September 29, 2015 Second Division

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

ILLINOIS SERVICE FEDERAL SAVINGS AND ) Appeal from the Circuit Court LOAN ASSOCIATION OF CHICAGO, ) of Cook County. ) Plaintiff-Appellee, ) ) No. 13 CH 18131 v. ) ) BARBARA MANLEY, BARBARA'S SOUL ) FOOD RESTAURANT CORPORATION, ) UNKNOWN OWNERS and NONRECORD ) The Honorable CLAIMANTS, ) Anna M. Loftus, ) Judge, presiding. Defendants-Appellants. )

JUSTICE HYMAN delivered the judgment of the court, with opinion. Presiding Justice Pierce and Justice Simon concurred in the judgment and opinion.

OPINION

¶1 Illinois Service Federal Savings and Loan Association of Chicago (Illinois Service) filed

a complaint against Barbara Manley to foreclose a mortgage and submitted an affidavit from a

process server, stating he personally served Manley at her home. Manley failed to file an

appearance and the circuit court entered a default judgment in the bank's favor. After the

property was sold to a successful bidder, Manley filed a pro se petition to quash personal

jurisdiction, claiming she was never served with the summons and complaint. Manley then

retained a lawyer, who filed an appearance and an amended motion to quash personal 1-14-3089

jurisdiction. After a hearing, the circuit court denied Manley's pro se motion to quash and struck

her amended motion to quash on the grounds that it was never sent to the court or the other

parties. Manley then filed a motion for leave to amend the motion to quash. After entering an

order confirming the sale, the trial court denied Manley's motion for leave to amend the motion

to quash on the grounds that it sought reconsideration of the order denying her pro se motion to

quash, and thus was not timely filed.

¶2 Manley contends the trial court erred in (i) striking her amended motion to quash; (ii)

treating her motion for leave to amend the motion to quash as a motion for reconsideration; and

(iii) confirming the judicial sale. We affirm. Manley failed to properly provide notice of her

amended motion to quash service, thus the trial court did not abuse its discretion in striking it.

The court also did not err in denying Manley's request for leave to amend the motion to quash,

which was untimely filed. Finally, the trial court properly confirmed the judicial sale because

Manley failed to corroborate by clear and convincing evidence her denial of service.

¶3 BACKGROUND

¶4 Barbara Manley obtained a mortgage from Illinois Service Federal Savings and Loan

Association of Chicago on May 18, 2011, on property located at 353 East 51st Street in Chicago,

where Manley operated Barbara's Soul Food restaurant. Manley resided nearby at 5176 South

King Drive. On August 1, 2013, Illinois Service filed a complaint for foreclosure, alleging

Manley had not made a payment since January 1, 2013, and currently owed $55,606.44 in

principal, plus interest. On September 5, 2013, Illinois Service filed affidavits from Gerald

Keeley, a process server, stating that on August 7, 2013, he personally served Manley at her

residence and served Barbara's Soul Food Corporation's registered agent, James Brown, at his

home. Unknown owners and nonrecord claimants were served by publication.

-2- 1-14-3089

¶5 Manley did not appear at the initial January 28, 2014, case management conference. On

February 27, 2014, Illinois Service filed a motion for default judgment, an affidavit of prove-up,

alleging the amount Manley was in default, and a motion to appoint a selling officer.

¶6 On March 20, 2014, the circuit court entered an order of default against Manley and a

judgment of foreclosure and sale in the amount of $75,073.77. The court also appointed the

Judicial Sales Corporation as the selling officer, which sold the property to Boulder Real Estate

Group LLC on May 5, 2014. Shortly thereafter, Boulder filed a petition for leave to intervene, a

motion for approval of sale and distribution, and a motion for possession. Boulder mailed copies

of the motions to Manley and Barbara's Soul Food Corporation.

¶7 On June 11, 2014, Manley filed a pro se motion to quash service under section 2-203(a)

of the Illinois Code of Civil Procedure (735 ILCS 5/2-203(a) (West 2012)), claiming Illinois

Service never personally served her with the summons and complaint. She asked the court to

quash personal service against her and dismiss Illinois Services' foreclosure summons and

complaint, without prejudice. The circuit court granted Manley leave to file her appearance and

the pro se motion to quash service, instanter, and set the motion for a hearing.

¶8 Manley retained an attorney and on the day before the hearing on Manley's pro se

motion, the attorney filed an appearance and an amended motion to quash service. The amended

motion contended that she was at the restaurant and not at her home at the time Keeley claims he

served her there. Manley's attorney did not send copies of the amended motion to the other

parties, and thus, Illinois Service only filed a response to Manley's pro se motion to quash,

arguing that Manley failed to present sufficient information to overcome the presumption of the

validity of the process server's affidavit regarding personal service of Manley at her home.

-3- 1-14-3089

¶9 Judge Loretta Eadie-Daniels denied Manley's pro se motion to quash service and struck

her amended motion to quash. The record does not contain a report of proceedings, but the order

states that "The amended motion to quash filed without leave of court on June 17, 2014 is

stricken as it was not transmitted to the court or any of the other parties in the case. The court's

ruling is based on the pro se motion to quash properly before the court today." The court also

entered a scheduling order giving Manley until July 9, 2014, to reply to Boulder's petition to

intervene and its motions for confirmation of sale and possession.

¶ 10 Manley did not file a response, but instead, on July 29, 2014, filed a motion for leave to

file an amended motion to quash service. She scheduled presentment of the motion for

November 6, 2014, and served the parties by regular mail. The motion included two affidavits

from employees of Barbara's Soul Food Restaurant, asserting that at the time Keeley claims he

served Manley at her home, she was at the restaurant.

¶ 11 On July 30, 2014, Judge Darryl B. Simko held a hearing on Boulder's petition to

intervene and entered an order confirming sale and for possession. Boulder, Illinois Service, and

Manley were present in court through counsel. Before addressing Boulder's petition to intervene

and the motion confirming sale, Manley's counsel advised the court she had filed a motion for

leave to file an amended motion to quash service the day before and had not responded to

Boulder's motions because of Manley's position that, due to a lack of proper service, the circuit

court did not have jurisdiction over her. Judge Simko told Manley's attorney he had not received

the motion and it was not pending. The court entered an order granting Boulder's petition to

intervene and an order confirming the sale and finding Boulder entitled to possession of the

property.

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Cite This Page — Counsel Stack

Bluebook (online)
2015 IL App (1st) 143089, 43 N.E.3d 169, Counsel Stack Legal Research, https://law.counselstack.com/opinion/illinois-service-federal-savings-and-loan-associat-illappct-2015.