2020 IL App (2d) 190521 No. 2-19-0521 Opinion filed August 28, 2020 ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
PNC BANK, NATIONAL ASSOCIATION, ) Appeal from the Circuit Court ) of Du Page County. ) Plaintiff-Appellee, ) ) v. ) No. 11-CH-1585 ) JERZY KUSMIERZ; HALINA KUSMIERZ; ) THE TOWNSHIP OF YORK; and PNC ) BANK, NATIONAL ASSOCIATION, ) ) Defendants ) ) (Jerzy Kusmierz and Halina Kusmierz, ) Defendants-Appellants; Brian T. Heath, ) Naillisa S. Ragland, and Mortgage Electronic ) Honorable Registration Systems, Inc., Respondents- ) James D. Orel, Appellees). ) Judge, Presiding. ____________________________________________________________________________
JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Justices McLaren and Bridges concurred in the judgment and opinion.
OPINION
¶1 Plaintiff, PNC Bank, National Association (Bank), filed a foreclosure complaint against
defendants, Jerzy and Halina Kusmierz, concerning property in Lombard. 1 Ultimately, in
1 The mortgage was initially entered into by defendants and MidAmerica Bank, FSB, but 2020 IL App (2d) 190521
February 2012, the trial court entered a default judgment against defendants, and the property was
sold through a judicial sale.
¶2 Six years later, on September 12, 2018, defendants filed a petition for relief from void
judgments, pursuant to section 2-1401(f) of the Code of Civil Procedure (Code) (735 ILCS 5/2-
1401(f) (West 2016)), arguing that all orders entered against them in the foreclosure action were
void because defendants were not properly served and, therefore, the trial court lacked personal
jurisdiction over them. The Bank moved to dismiss the petition, pursuant to section 2-619.1 of the
Code (id. § 2-619.1), as did subsequent purchasers. The court granted the motions. Defendants
appeal. For the following reasons, we affirm.
¶3 I. BACKGROUND
¶4 On March 30, 2011, the Bank filed the foreclosure complaint and summons against
defendants, relating to real estate located at 1405 Wisconsin Avenue in Lombard. The record
reflects that, on March 31, 2011, Jennifer I. Magida, an employee of Metro Detective Agency,
LLC, attempted service at the subject address, but the property consisted of only a vacant lot, with
no structures.
¶5 On April 4, 2011, the court entered an order appointing Metro Detective Agency, LLC, as
special process server.
¶6 An affidavit of service dated the next day, April 5, 2011, reflects that, on April 1, 2011,
Magida served Jerzy by abode service when she handed the complaint and summons to his wife,
the complaint asserted that plaintiff was the legal holder of the note, mortgage, and indebtedness
as the successor by merger to National City Bank, which was the successor by merger to
MidAmerica Bank, FSB.
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Halina at 1107 West Eaton Court, Palatine, IL, 60067. According to the affidavit, on April 4,
2011, Magida also sent Jerzy the summons via United States mail to the same Palatine address. A
second affidavit, also dated April 5, 2011, attests to personal service of Halina on April 1, 2011, at
the Palatine address. Both affidavits attest: “I am a registered employee of a Private Detective
Agency licensed by the Illinois Department of Financial and Professional Regulation and thereby
authorized to serve process within the State of Illinois pursuant to 735 ILCS 5/2-202(a).”
¶7 On February 27, 2012, the Bank filed a motion for foreclosure and judgment of sale. It
noted April 1, 2011, as the date of service for defendants but also noted that defendants never
appeared.
¶8 On February 28, 2012, the court entered an order of default against defendants and a
judgment of foreclosure in the amount of $132,418.51. The property was sold at a judicial sale,
with the Bank being the successful bidder. On June 12, 2012, the court entered an order confirming
the judicial sale. In 2013, Brian T. Heath and Naillisa S. Ragland purchased the property from the
Bank.
¶9 On September 12, 2018, approximately six years after the default judgment was entered,
defendants filed a section 2-1401 petition seeking relief from the judgments. They noted that they
were served in Cook County but argued that the court never acquired personal jurisdiction over
them, because there was no order in the record appointing a special process server for Cook
County, in violation of section 2-202(a) of the Code (735 ILCS 5/2-202(a) (West 2016)). 2
Defendants argued that the jurisdictional defect affirmatively appeared on the face of the record
2 This assertion was incorrect; there was an order appointing a special process server, but
the order was entered three days after Halina was personally served at the Palatine address.
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and that the default judgment was void. In their prayer for relief, defendants requested that the
court
―quash the service;
―vacate all orders and judgments in the case as void ab initio;
―find that the lack of jurisdiction is apparent on the face of the record;
―find that defendants are the owners of the property;
―restore possession of the property to them and order that the Bank and the
purchasers pay defendants, “as restitution, reasonable use and occupancy of [the property]
from July 12, 2012, through and including the date [defendants] are restored to possession,”
or, alternatively, “in the event that possession is not restored” to defendants, that the Bank
and purchasers pay defendants “as restitution” the value of the property on the date that the
petition is granted, plus reasonable use and occupancy of the residence from July 12, 2012,
through and including the date that restitution is paid in full;
―order the Bank and the purchasers to pay defendants, “as restitution,” all profits
that they derived from the residence; and
―stay further proceedings until all restitution is made to defendants.
¶ 10 The Bank filed a section 2-619.1 motion to dismiss the petition, arguing, in sum, that the
petition was barred by the laches doctrine, was moot, and requested improper relief.
¶ 11 Heath and Ragland also filed a section 2-619.1 motion, arguing, in sum, that they were
entitled to bona fide-purchaser protections under section 2-1401(e) (id. § 2-1401(e)), the laches
doctrine barred the petition, and defendants’ requested relief was improper. In addition, they
attested that, in 2013, they purchased the vacant lot from the Bank for $24,000. They further
attested that they constructed a five-bedroom home on the property, paying $42,000 and obtaining
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two mortgage loans to finance construction: “from STC Capital Bank (‘STC’), to wit: (a) a
$220,400.00 loan secured by a mortgage lien interest in the Premises delivered to Mortgage
Electronic Registration Systems, Inc. (‘MERS’), as nominee for STC, on May 17, 2013; and (b) a
home equity line of credit in the amount of $72,250.00 secured by a subordinate mortgage lien
interest in the Premises delivered to STC on May 7, 2015.” Further, they attested that they remitted
around $29,500 for real estate taxes and $6500 in property insurance. MERS later joined the
section 2-619.1 motion to dismiss filed by Heath and Ragland (hereinafter, we refer to Heath,
Ragland, and MERS collectively as “the purchasers”).
¶ 12 On May 21, 2019, after hearing oral argument, the trial court granted both motions to
dismiss with prejudice, noting that it found that the purchasers were bona fide under section 2-
1401(e) and that laches applied as to both motions. On June 18, 2019, defendants filed their notice
of appeal.
¶ 13 II. ANALYSIS
¶ 14 A. Motion to Dismiss Appeal
¶ 15 Preliminarily, we note that, similar to the posture below, on appeal the Bank and the
purchasers each filed a separate response brief. In addition, the purchasers, in a motion that we
ordered taken with the case, have moved to dismiss the appeal. They argue, in sum, that this appeal
is moot because, pursuant to sections 13-107.1 and 13-109.1 of the Code (735 ILCS 5/13-107.1,
13-109.1 (West 2018)), they have acquired title to the premises through adverse possession and,
therefore, their interest in the property would not be affected by vacating the foreclosure orders.
¶ 16 We deny the motion to dismiss the appeal as moot. We faced almost-identical motions in
JP Morgan Chase Bank, N.A. v. Robinson, 2020 IL App (2d) 190275, and Bank of New York v.
Rodriguez, 2020 IL App (2d) 190143, and denied both, noting in Robinson that, to rule on the
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merits of the motion, we had to rule on the merits of the case. Robinson, 2020 IL App (2d) 190275,
¶ 29 n.2.
¶ 17 B. Standard of Review
¶ 18 We note that, on appeal, defendants do not contend that they were not actually served but,
rather, that the foreclosure judgments against them were void and the trial court erred in dismissing
the section 2-1401 petition. Defendants argue that service in Cook County required appointment
of a special process server, which did not happen until April 4, after personal service occurred on
April 1; the defect in service was apparent on the face of the record, as the service address was in
Cook County, such that the purchasers were not bona fide; the doctrine of laches does not apply
to petitions to vacate void judgments; and they are entitled to restitution.
¶ 19 For the following reasons, we conclude that dismissal of the petition against both the
purchasers and the Bank was proper under section 2-619(a)(9) of the Code, which permits
dismissal of an action where “the claim asserted against defendant is barred by other affirmative
matter avoiding the legal effect of or defeating the claim.” 735 ILCS 5/2-619(a)(9) (West 2018).
We review de novo the dismissal of a pleading pursuant to section 2-619(a)(9). McIntosh v.
Walgreens Boots Alliance, Inc., 2019 IL 123626, ¶ 17. In addition, we review de novo a judgment
on a section 2-1401 petition claiming voidness due to lack of personal jurisdiction. Deutsche Bank
National Trust Co. v. Hall-Pilate, 2011 IL App (1st) 102632, ¶ 12.
¶ 20 C. Dismissal of Petition as to the Purchasers
¶ 21 Defendants contend that service was improper because it was conducted by an
unauthorized person in that, although the special process server had not yet been appointed by the
court, service was conducted in Cook County, which, according to section 2-202(a) of the Code
(735 ILCS 5/2-202(a) (West 2010)), required service by the sheriff or a court-appointed special
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process server. Defendants argue that the service affidavit, reflecting service on April 1, 2011,
coupled with the court order being entered on April 4, suffices to establish on the face of the record
a failure to comply with section 202(a). As such, defendants conclude, section 2-1401(e)’s
bona fide-purchaser protections do not apply. This court addressed and rejected similar arguments
in Robinson, 2020 IL App (2d) 190275, ¶¶ 19-29, and, even more recently, in BankUnited,
National Ass’n v. Giusti, 2020 IL App (2d) 190522, ¶¶ 31-38. But see Municipal Trust and Savings
Bank v. Moriarty, 2020 IL App (3d) 190016, ¶¶ 22-23 (upholding denial of the mortgagor’s
petition for relief from judgment in a foreclosure proceeding on the basis that, even though the
private detective had not been specially appointed to serve process in the county, service of process
on the mortgagor in Cook County by a registered private detective was valid under section 2-
202(a), (b) (735 ILCS 5/2-202(a), (b) (West 2016)) and, therefore, provided the trial court with
personal jurisdiction over the mortgagor). We acknowledge that briefing in this case finished prior
to our issuance of those decisions. Nevertheless, we apply the same analyses to defendants’
arguments here.
¶ 22 Specifically, where, as here, a voidness challenge is brought more than 30 days after a
default judgment, it may be considered under section 2-1401. See Sarkissian v. Chicago Board of
Education, 201 Ill. 2d 95, 104-05 (2002). Further, a section 2-1401 petition alleging that the
underlying judgment was void is not subject to the time, due-diligence, or meritorious-defense
requirements applicable to other section 2-1401 petitions. Id. at 104.
¶ 23 As stated by our supreme court:
“In order to have a valid judgment the court must have both jurisdiction over the
subject matter of the litigation and jurisdiction over the parties. [Citation.] Personal
jurisdiction may be acquired either by the party’s making a general appearance or by
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service of process as statutorily directed. [Citation.] A judgment rendered by a court which
fails to acquire jurisdiction over the parties is void and may be attacked and vacated at any
time, either directly or collaterally. [Citations.]” In re Marriage of Verdung, 126 Ill. 2d
542, 547 (1989).
¶ 24 However, even if we were to assume that the judgment is void, our analysis does not end,
because the dispositive question becomes whether the purchasers are bona fide. Specifically,
where the rights of innocent third-party purchasers have attached, a judgment may be collaterally
attacked only where an alleged personal-jurisdictional defect affirmatively appears in the record.
State Bank of Lake Zurich v. Thill, 113 Ill. 2d 294, 312-13 (1986) (citing Ill. Rev. Stat. 1981, ch.
110, ¶ 2-1401(e) (now 735 ILCS 5/2-1401(e) (West 2018))). Section 2-1401(e) provides:
“Unless lack of jurisdiction affirmatively appears from the record proper, the vacation or
modification of an order or judgment pursuant to the provisions of this Section does not
affect the right, title or interest in or to any real or personal property of any person, not a
party to the original action, acquired for value after the entry of the order or judgment but
before the filing of the petition, nor affect any right of any person not a party to the original
action under any certificate of sale issued before the filing of the petition, pursuant to a sale
based on the order or judgment.” (Emphasis added.) 735 ILCS 5/2-1401(e) (West 2018).
¶ 25 In determining whether a lack of jurisdiction is apparent from the record, we must look to
the whole record; a lack of jurisdiction is apparent if it does not require inquiry beyond the face of
the record. Thill, 113 Ill. 2d at 313-14. Strict compliance with the statutes governing service of
process is required before a court will acquire personal jurisdiction over the person served.
Sarkissian, 201 Ill. 2d at 109.
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¶ 26 Here, we disagree with defendants’ argument that the alleged defect in service was
apparent on the face of the record, such that section 2-1401’s bona fide-purchaser protections are
inapplicable. The affidavit of the special process server reflects service at 1107 West Eaton Court,
Palatine, IL, 60067. It does not, however, specify that service was effected in Cook County.
Further, the affidavit reflects the process server’s representation that she was authorized to serve
process “pursuant to 735 ILCS 5/2-202(a),” the very statute that defendants claim was violated.
¶ 27 We have previously held that, where an affidavit does not specify the county in which
service occurred, a third-party purchaser would not, on the record alone, have any reason to suspect
that service was not in compliance with section 2-202(a) and, further, that a third-party purchaser
should be able to rely on the affidavit’s statement that service complied with the service
requirements. See, e.g., Giusti, 2020 IL App (2d) 190522, ¶¶ 33-36; Robinson, 2020 IL App (2d)
190275, ¶¶ 23-27; U.S. Bank National Ass’n v. Rahman, 2016 IL App (2d) 150040, ¶¶ 38-39.
Defendants argue that Palatine exists entirely in Cook County. While that might be true, the “lack
of jurisdiction [must] affirmatively appear[ ] from the record proper.” See 735 ILCS 5/2-1401(e)
(West 2018). A request that we take judicial notice that Palatine’s 60067 zip code lies exclusively
in Cook County requires us to go beyond the face of the record to establish a defect in service. In
contrast, the service affidavit itself would lead a reasonably prudent purchaser to conclude that
service was proper, as there is nothing on the face of the affidavit to suggest that the process server
was unauthorized to serve process, or that service was in Cook County and that, therefore, the
order appointing a special process server entered three days later was a reason to suspect defective
service. Because the jurisdictional defect does not affirmatively appear on the face of the record,
section 2-1401(e) protects the purchasers’ rights in the property. See Giusti, 2020 IL App (2d)
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190522, ¶¶ 37-38. Accordingly, the trial court properly dismissed the section 2-1401 petition
against them.
¶ 28 D. Dismissal of Petition as to the Bank
¶ 29 As to the Bank, our analysis diverges slightly from prior decisions. For example, in
Robinson, we noted that the successor in interest to the defendant’s original mortgagee was entitled
to the same protections as the subsequent purchasers because “the void judgment would not ‘affect
any right of any person not a party to the original action under any certificate of sale issued before
the filing of the petition, pursuant to a sale based on the order or judgment.’ ” Robinson, 2020 IL
App (2d) 190275, ¶ 29 (quoting 735 ILCS 5/2-1401(e) (West 2018)). Here, however, the Bank is
not a successor in interest; rather, it is the original foreclosing plaintiff that defendants claim took
advantage of void orders to sell the property. Thus, section 2-1401(e) protections are not relevant.
¶ 30 Instead, the trial court granted the Bank’s motion to dismiss on the basis of laches, without
ruling on the Bank’s mootness argument. Defendants argue, in sum, that the court’s ruling was
improper because a void judgment may be attacked at any time and, therefore, laches does not
apply. We conclude that the trial court properly granted the Bank’s motion to dismiss.
¶ 31 Laches is an affirmative defense that is equitable, and it requires the party raising it to show
that there was an unreasonable delay in bringing an action and that the delay caused prejudice.
Rahman, 2016 IL App (2d) 150040, ¶ 44. We have no quarrel with defendants’ position that void
judgments may be challenged at any time. Indeed, we acknowledged above that section 2-1401
petitions alleging void judgments are not subject to that section’s ordinary time restrictions.
However, although void judgments may be attacked at any time, in Robinson, we noted that laches
“can preclude relief in an appropriate case where prejudice is demonstrated.” (Emphasis added.)
Robinson, 2020 IL App (2d) 190275, ¶ 30. Further, this court has noted that, although it might be
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a “curious argument” to assert that laches bars bringing a jurisdictional challenge, nevertheless,
“in some circumstances, laches [has] been held to interpose a limit on when a void judgment may
be collaterally attacked.” West Suburban Bank v. Advantage Financial Partners, LLC, 2014 IL
App (2d) 131146, ¶ 26 (citing James v. Frantz, 21 Ill. 2d 377, 383 (1961), Eckberg v. Benso, 182
Ill. App. 3d 126, 131-32 (1989), In re Adoption of Miller, 106 Ill. App. 3d 1025, 1030 (1982), and
Rodriguez v. Koschny, 57 Ill. App. 3d 355, 361 (1978)). In addition, support for the position that
laches may be applied, even if the issue is one concerning defective service and allegedly void
orders, is also found in Slatin’s Properties, Inc. v. Hassler, 53 Ill. 2d 325, 329-30 (1973) (noting
that the defense of laches is “dependent upon the facts of each case” and “[w]hen the facts indicate
that it would be inequitable to allow a party to assert title, laches will bar this right even within the
statutory period of limitation”); In re Jamari, 2017 IL App (1st) 160850, ¶ 55 (“ ‘Illinois cases
recognize that even if service of process is defective an attack on a decree may be barred by laches.
[Citation.] It is a basic to the laches doctrine that a complainant may be barred when, after
ascertaining the facts, he [or she] fails promptly to seek redress.’ ” (quoting Rodriguez, 57 Ill. App.
3d at 361-62)); La Salle National Bank v. Dubin Residential Communities Corp., 337 Ill. App. 3d
345, 350-51 (2003) (“[l]aches is a defense that is asserted against a party who has knowingly slept
upon his [or her] rights and acquiesced for a great length of time, and its existence depends upon
whether, under all the circumstances of a particular case, a party is chargeable with want of due
diligence and failing to institute proceedings before he or she did”; moreover, “[w]hether the
defense of laches is available is to be determined upon the facts and circumstances of each case”);
Eckberg, 182 Ill. App. 3d at 131 (“Illinois courts have applied this [(laches)] doctrine to bar claims
that a decree is void for defective service of process despite contrary arguments that such a
jurisdictional claim may be brought at any time.”); Miller v. Bloomberg, 60 Ill. App. 3d 362, 365
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(1978) (noting that a void decree may be attacked at any time, “although the equitable defense of
laches may be interposed”). As such, in light of the foregoing precedent, defendants’ position that
under no circumstances may laches apply to this case is simply not persuasive.
¶ 32 Here, the Bank argues that both elements to bar relief based on laches are satisfied. The
Bank notes that defendants do not argue that they were not served or had no knowledge of the
foreclosure action, and, yet, they did nothing about their allegedly defective service until filing
their section 2-1401 petition six years later. This unreasonable delay, the Bank argues, allowed
defendants to increase the damages they could claim without any detriment to themselves, and it
resulted in the property’s transfer to bona fide purchasers, such that the Bank is irreparably
damaged and cannot recover the property.
¶ 33 We agree. “Laches has been defined as ‘such neglect or omission to assert a right, taken
in conjunction with a lapse of time of more or less duration and other circumstances causing
prejudice to an adverse party, as will operate to bar relief in equity.’ [Citation.] The existence of
laches ‘depends on whether, under all circumstances of a particular case, a plaintiff is chargeable
with want of due diligence in failing to institute proceedings before he did.’ [Citation.]” In re
Adoption of Miller, 106 Ill. App. 3d at 1030. Defendants here presently seek against the Bank
restitution and profits from the sale of the property, but they were served with the complaint and
summons (Halina in person and Jerzy via abode service), notifying them that their interest in the
property was in jeopardy, six years prior to filing their section 2-1401 petition. For six years, they
did nothing to protect their rights in the property and, had they participated in court proceedings,
they might have earlier discovered the alleged defect in service. Again, they do not dispute
receiving service or that constructive notice of the property sale, via the recording of deeds and
the purchasers’ payment of real estate taxes, would impute knowledge upon them. Nevertheless,
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they did not bring this cause of action until six years and two transfers of title later. To permit
relief against the Bank at this juncture and under these circumstances would be inequitable, as the
Bank has no ability to recover the property and, depending on statutes-of-limitations issues, might
have no recourse against other parties or counsel. Further, nothing suggests that defendants’ delay
in bringing this action was reasonable. Accordingly, providing relief to defendants, despite their
unreasonable delay in seeking relief, would prejudice the Bank.
¶ 34 In sum, we also affirm the trial court’s dismissal of the section 2-1401 petition against the
¶ 35 III. CONCLUSION
¶ 36 For the foregoing reasons, the judgment of the circuit court of Du Page County is affirmed.
¶ 37 Affirmed.
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No. 2-19-0521
Decision Under Review: Appeal from the Circuit Court of Du Page County, No. 11-CH- 1585; the Hon. James D. Orel, Judge, presiding.
Attorneys Giovanni Raimondi, of RAI Law, LLC, of Chicago, for for appellants. Appellant:
Attorneys Meredith Pitts, of Heavner, Beyers & Mihlar, LLC, of Decatur, for for appellee PNC Bank, National Association. Appellee: Nathan B. Grzegorek and James A. Larson, of Plunkett Cooney, P.C., of Chicago, for other appellees.
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