Lakeview Loan Servicing, LLC v. Delarama

2025 IL App (3d) 240132-U

• Court: Appellate Court of Illinois
• Decided: February 5, 2025
• Docket: 3-24-0132
• Status: Unpublished

Opinion

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

2025 IL App (3d) 240132-U

Order filed February 5, 2025 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

LAKEVIEW LOAN SERVICING, LLC, ) Appeal from the Circuit Court ) of the 18th Judicial Circuit, Plaintiff-Appellee, ) Du Page County, Illinois, ) v. ) ) ELIZABETH G. DELARAMA; THE ) Appeal No. 3-24-0132 CAMBRIA CONDOMINIUM ASSOCIATION;) Circuit No. 22-FC-600 and UNKNOWN OWNERS AND ) NONRECORD CLAIMANTS, ) ) Honorable Defendants ) Bryan S. Chapman, ) Robert G. Gibson, (Elizabeth G. Delarama, Defendant-Appellant.) ) Judges, Presiding. ____________________________________________________________________________

PRESIDING JUSTICE BRENNAN delivered the judgment of the court. Justices Peterson and Bertani concurred in the judgment. ____________________________________________________________________________

ORDER

¶1 Held: The trial court did not err in dismissing defendant’s section 2-1401(f) petition. Affirmed.

¶2 Defendant, Elizabeth Delarama, appeals the trial court’s dismissal of her section 2-1401(f)

petition, arguing that the court’s order shortening the redemption period and judgment for foreclosure and sale are void because they were procured by fraud. For the reasons set forth below,

we affirm.

¶3 I. BACKGROUND

¶4 In 2016, Delarama refinanced the mortgage on her Lombard residence. The refinanced

mortgage was serviced by Freedom Mortgage Corporation (Freedom), and the loan was in the

amount of $159,348. Delarama’s payments were due on the first day of each month. In a December

16, 2021, letter addressed to Delarama at her residence, Freedom notified her that, effective

January 4, 2022, her loan servicing would be transferred to Mr. Cooper, Subservicer for Lakeview.

The letter explained that Freedom would cease accepting payments on January 3, 2022, and Mr.

Cooper, Subservicer for Lakeview, would begin accepting payments on January 4, 2022. The letter

set forth payment instructions and stated,

“Please be advised that if you are currently enrolled in auto-pay, it will be discontinued on

January 4, 2022. You will be required to set up a new auto-pay enrollment with MR.

COOPER,[]SUBSERVICER FOR LAKEVIEW, if MR COOPER,[]SUBSERVICER FOR

LAKEVIEW provides such a service.”

On July 27, 2022, Delarama’s mortgage was assigned by Freedom to Lakeview by way of a

corporate assignment of mortgage.

¶5 On August 5, 2022, Lakeview filed a complaint to foreclose Delarama’s mortgage, alleging

that she had not submitted any payments from February 2022 through the date of filing. 1 A

summons was issued the same day.

1 The Cambria Condominium Association (Cambria) was joined as a defendant due to its interest in the property through its status as the condominium association. Cambria did not participate in the underlying litigation and has not filed a brief on appeal.

2 ¶6 On August 24, 2022, Lakeview filed an affidavit seeking service upon Delarama by

publication, as well as an affidavit of Erin Bitz, a skip trace investigator, explaining that the service

attempt upon Delarama was unsuccessful and that, upon diligent inquiry, she could not be located.

Attached as an exhibit was an affidavit of due diligence, detailing the investigation that was

conducted. Also attached as an exhibit was an affidavit of Vito Davis, a special process server,

explaining as follows that an August 10, 2022, service attempt was unsuccessful:

“08/10/2022 12:03:00 PM – Non-service Vacant; No Power; Arrived at the location;

attempted service rung bell and knocked on the door multiple times and no answer[;]

vacancy notice posted on front door from Cyprexx [phone number][;] vacant as of

07/19/2022[;] no further activity seen.”

Lakeview subsequently filed a certificate of publication and a certificate of mailing notice by

publication.

¶7 On October 5, 2022, Lakeview filed a motion for entry of an order for default, petition to

shorten redemption period, and motion for entry of a judgment for foreclosure and sale. Attached

to the petition to shorten redemption period was an affidavit of abandonment signed by Davis.

When prompted to identify two statutory factors indicating abandonment of the property, he

selected the following boxes: (1) “Gas, electric, or water services have been terminated,” and (2)

“There exists other evidence indicating a clear intent to abandon the Property,” restating the facts

set forth in his previous affidavit, supra ¶ 6. See 735 ILCS 15-1200.5 (West 2022) (defining

“abandoned residential property”). Photographs of the property were attached, as well as a

photograph of the Cyprexx notice, which stated, “This property has been determined to be vacant.

This information will be reported to the mortgage servicer responsible for maintaining this

property. The mortgage servicer has the right to protect this property.” The notice provided a phone

3 number to call in the event the property was not vacant and warned that failure to call within three

calendar days would result in “routine preservation services.” The notice was dated July 19, 2022.

¶8 On October 24, 2022, an order of default, order shortening redemption period (redemption

order), and judgment for foreclosure and sale (judgment) were entered. The court shortened the

redemption period to 30 days from the date of the judgment, finding that the property had been

abandoned by Delarama and citing the affidavit filed by Lakeview. The same day, a notice of entry

of default and judgment of foreclosure was mailed to Delarama at her residence.

¶9 On January 10, 2023, Callen Properties, LLC (Callen), purchased the property for $190,500

at a sheriff’s sale. On February 1, 2023, the court entered an order confirming the sale and an order

of possession.

¶ 10 Six months later, on August 2, 2023, Delarama’s counsel filed an appearance and a petition

to vacate the redemption order and judgment pursuant to section 2-1401(f) of the Illinois Code of

Civil Procedure (Code) (735 ILCS 5/2-1401(f) (West 2022) (concerning relief from void orders

and judgments)). Delarama claimed that, in October 2021, she traveled to the Philippines to visit

family and did not return to the United States until April 12, 2023. Delarama was enrolled in

automatic payments with Freedom but, due to her travel, did not receive Freedom’s December 16,

2021, notice that her mortgage was being transferred and was unaware that she needed to re-enroll

in a payment method with Lakeview. She denied having abandoned the property and argued that

the court relied upon an incorrect affidavit of abandonment, leading to the erroneous entry of both

the redemption order and judgment. In support, she explained that, contrary to the affidavit of

abandonment, her utilities were not turned off, and she attached documents showing that she paid

her gas, electric, water, and sewer bills during her absence. Thus, Delarama requested that the

redemption order, judgment, order confirming the sale, and order of possession be vacated as void.

4 ¶ 11 On October 27, 2023, Lakeview filed a combined motion to dismiss Delarama’s petition

pursuant to section 2-619.1 of the Code (735 ILCS 5/2-619.1 (West 2022)). First, Lakeview argued

that Delarama’s claim failed as a matter of law under section 2-619 of the Code (id. § 2-619)

because “orders are void only where there exists a complete lack of subject-matter jurisdiction,”

and that the court, indeed, had subject matter jurisdiction. Second, Lakeview argued that

Delarama’s claim was barred by section 15-1509(c) of the Code (id. § 15-1509(c)) due to the fact

that title to the property was vested to Callen by a sheriff’s deed. Third, Lakeview argued that

section 2-1401(e) of the Code (id. § 2-1401(e)) further barred Delarama’s claim, as the vacation

of the orders and judgment could not affect title to the property due to Callen’s purchase of the

same, thereby rendering Delarama’s petition moot. Lastly, Lakeview argued that section 2-615 of

the Code (id. § 2-615) required dismissal of Delarama’s petition because she failed to (1) plead

the existence of a meritorious defense that would have precluded entry of the judgment and due

diligence in filing her petition and (2) name all required parties, i.e., Callen.

¶ 12 Following briefing and a hearing, the court dismissed Delarama’s petition with prejudice,

reasoning, inter alia, that (1) the orders would only be void if Delarama “was not served so that

the court did not have jurisdiction”; (2) Delarama did not directly attack service; and (3) Delarama

failed to allege a meritorious defense or due diligence. This appeal followed.

¶ 13 II. ANALYSIS

¶ 14 On appeal, Delarama challenges the court’s dismissal of her petition. She argues that the

court erred by failing to find that Lakeview committed fraud when it claimed that Delarama’s

utility services were terminated in its affidavit of abandonment. Delarama argues that fraud renders

the redemption order and judgment void. For the reasons set forth below, we affirm.

5 ¶ 15 Section 2-619.1 of the Code allows a party to file combined motions to dismiss pursuant

to sections 2-615 and 2-619. A section 2-615 motion to dismiss challenges a pleading as being

legally deficient on its face. Reynolds v. Jimmy John’s Enterprises, LLC, 2013 IL App (4th)

120139, ¶ 25. The relevant inquiry is “whether the facts alleged in the complaint, viewed in the

light most favorable to the [nonmoving party], and taking all well-pleaded facts and all reasonable

inferences that may be drawn from those facts as true, are sufficient to state a cause of action upon

which relief may be granted.” Id. Alternatively, a section 2-619 motion to dismiss admits that the

pleading is legally sufficient but asserts an affirmative matter outside of the pleading to defeat the

cause of action. Id. ¶ 31. A trial court’s dismissal of a pleading pursuant to section 2-619.1 is

reviewed de novo. Wilson v. City of Decatur, 389 Ill. App. 3d 555, 558 (2009).

¶ 16 To provide context for Delarama’s claim, we first set forth the statutory framework

underlying the court’s authority to make a finding of abandonment and shorten the redemption

period. Generally, the redemption period extends three months from the date of entry of a judgment

for foreclosure. 735 ILCS 5/15-1603(b)(1) (West 2022). However, it shall be shortened to 30 days

where there is a finding that the property has been abandoned. Id. § 15-1603(b)(4). Pursuant to

section 15-1200.5 of the Code, a residential property is abandoned where the property

“(a) either:

(1) is not occupied by any mortgagor or lawful occupant as a principal residence; or

(2) contains an incomplete structure if the real estate is zoned for residential

development, where the structure is empty or otherwise uninhabited and is in need of

maintenance, repair, or securing; and

(b) with respect to which either:

(1) two or more of the following conditions are shown to exist:

6 ***

(E) gas, electrical, or water services to the entire property have been terminated;

***

(K) there exists other evidence indicating a clear intent to abandon the

property[.]” (Emphases added.)

¶ 17 Focusing on the statutory definition of abandonment, Delarama argues that Lakeview

fraudulently stated in its affidavit of abandonment that the property’s utility services had been

terminated. Because the utilities were, in fact, not terminated, two statutory factors indicating

Delarama intention to abandon the property, as required by section 15-1200.5(b)(1), were not

present. Thus, Delarama continues, the redemption order and judgment are void because they were

fraudulently procured.

¶ 18 Section 2-1401 provides an avenue for a litigant to seek relief from a final order or

judgment where more than 30 days have elapsed since its entry. The general rule is that the petition

“must be filed within two years of the order or judgment, *** must allege a meritorious defense to

the original action, and *** must show that the petition was brought with due diligence.”

Sarkissian v. Chicago Board of Education, 201 Ill. 2d 95, 103 (2002). However, a petition

attacking a judgment or order as void pursuant to section 2-1401(f) need not adhere to these

requirements. Id. at 104. This is the approach taken by Delarama on appeal, as she does not

challenge the court’s conclusion that she failed to allege a meritorious defense and due diligence,

thereby prohibiting relief under any other provision of section 2-1401.

¶ 19 An order or judgment can be attacked as void only where the court lacked subject matter

jurisdiction or personal jurisdiction. Taylor v. Bayview Loan Servicing, LLC, 2019 IL App (1st)

172652, ¶ 14. Accordingly, while “[f]raud can render a judgment void, *** not all fraud can do

7 so.” In re M.B. 235 Ill. App. 3d 352, 377 (1992). Only an order or judgment that has been touched

by fraud that deprives the court of jurisdiction is void.

“Courts distinguish between fraud which prevents a court from acquiring jurisdiction or

merely gives the court colorable jurisdiction, and fraud occurring after the court’s valid

acquisition of jurisdiction, such as false testimony or concealment. [Citations.] Only

judgments procured by the former type of fraud are void. [Citations.] This type of fraud is

sometimes referred to as ‘extrinsic fraud,’ which is defined as fraud that occurs in situations

where an unsuccessful party has been prevented from fully exhibiting his case by being

kept away from the court or is kept from gaining knowledge of the suit. [Citations.]” In re

Adoption of E.L., 315 Ill. App. 3d 137, 154 (2000).

“Extrinsic fraud is collateral to the issues of a case and prevents the unsuccessful party from having

a fair opportunity to participate in and defend the action.” Protein Partners, LLP v. Lincoln

Provision, Inc., 407 Ill. App. 3d 709, 716 (2010). Conversely, intrinsic fraud goes to the actual

merits of the case. Id. Intrinsic fraud is that which occurs after the court has validly acquired

jurisdiction and renders an order or judgment voidable, not void. In re M.B., 235 Ill. App. 3d at

378. A voidable order or judgment is entered, albeit erroneously, by a court having jurisdiction

and is not subject to collateral attack. Taylor, 2019 IL App (1st) 172652, ¶ 14.

¶ 20 Delarama’s argument that fraud can serve as a distinct theory of voidness that is extricable

from jurisdictional considerations is incorrect. Even accepting as true that the redemption order

and judgment were fraudulently procured, Delarama’s allegations fall squarely within the category

of intrinsic fraud that has been explicitly excluded as a basis to void an order or judgment. See In

re M.B., 235 Ill. App. 3d at 377-78; Protein Partners, 407 Ill. App. 3d at 716; Adoption of E.L.,

315 Ill. App. 3d at 154. The alleged fraud occurred after the court acquired jurisdiction. Delarama

8 has not challenged the court’s personal jurisdiction, which was properly acquired through service

by publication. The court also had subject matter jurisdiction, as foreclosure cases fall within the

general class of cases that the trial court has the authority to hear and determine. Nationstar

Mortgage, LLC v. Canale, 2014 IL App (2d) 130676, ¶ 18. Moreover, Delarama’s allegations

pertain to the actual merits of the case and are akin to false testimony. See Adoption of E.L., 315

Ill. App. 3d at 154.

¶ 21 Finally, Delarama implicitly argues that she was not required to plead a meritorious defense

or due diligence because such allegations are not necessary when seeking relief from a void

judgment. Indeed, she states in her reply brief that she “is attempting to vacate a Judgment as being

VOID due to FRAUD.” Accordingly, because Delarama’s sole theory of relief is voidness and the

facts pled can only be classified as intrinsic fraud, the court properly dismissed her petition. We

affirm.

¶ 22 III. CONCLUSION

¶ 23 The judgment of the circuit court of Du Page County is affirmed.

¶ 24 Affirmed.