Bankunited, Nat'l Ass'n v. Giusti

2020 IL App (2d) 190522

171 N.E.3d 79

446 Ill.Dec. 644

BANKUNITED, NATIONAL ASSOCIATION, as Successor in Interest from BankUnited, FSB, Plaintiff-Appellee,

v.Scott D. GIUSTI; Ventura 21, Inc. ; Unknown Heirs and Legatees of Scott D. Giusti, If Any; Unknown Owners; and Nonrecord Claimants, Defendants

(Scott D. Giusti, Defendant-Appellant; Raavi, Inc. and West Town Bank & Trust, Section 2-1401 Respondents-Appellees).

No. 2-19-0522

Appellate Court of Illinois, Second District.

Opinion filed June 15, 2020

Giovanni Raimondi, of RAI Law, LLC, of Chicago, for appellant.

Nathan B. Grzegorek, Timothy P. Collins and James A. Larson, of Plunkett Cooney, P.C., of Chicago, for appellee Raavi, Inc.

No brief filed for other appellees.

JUSTICE McLAREN delivered the judgment of the court, with opinion.

¶ 1 This case concerns whether defendant, Scott D. Giusti, was properly served and, if he were not, whether he could obtain the relief he sought. Plaintiff, BankUnited National Association (BankUnited), successor in interest from BankUnited, FSB, filed a complaint to foreclose a mortgage against, inter alios , defendant. Defendant does not contend that he was not actually served. After defendant failed to appear, BankUnited moved for a default judgment. The court granted the motion and entered a default judgment of foreclosure and sale. BankUnited subsequently bought the foreclosed property at a sheriff's sale, and the court confirmed the report of sale. Shortly thereafter, Raavi, Inc. (Raavi), purchased the property from BankUnited.

¶ 2 More than seven years after the sale to Raavi, defendant filed a "Petition for Relief from Void Judgments," arguing that the trial court did not obtain personal jurisdiction, because he had been served in Cook County without a court-appointed special-process server to serve in Cook County. Defendant also argued lack of personal jurisdiction because the summons did not identify defendant as "a defendant" and the summons was not "directed to anyone." The court determined that Raavi's property rights were protected by section 2-1401(e) of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-1401(e) (West 2018)), because no jurisdictional defect appeared on the face of the record. Therefore, the court dismissed defendant's petition.

¶ 3 Defendant appeals, and we affirm.

¶ 4 I. BACKGROUND

¶ 5 On July 23, 2010, BankUnited filed the foreclosure complaint against defendant. The property was commonly known as 646 Forum Drive, Roselle, Illinois, 60172. BankUnited issued summons for defendant. The summons was on a form provided by Du Page County. The case caption on the summons states "BankUnited, FSB v. Scott D. Giusti, et al. " A fifth page attached to the summons directed the summons be served on "Scott D. Giusti" at the address that was subject to foreclosure. Service was attempted at that address but the property was vacant. On August 2, 2010, David Dahl, an employee of Firefly Legal, Inc., served defendant by substitute service on his son at 766 Stonewall Court, Schaumburg, Illinois, 60173. BankUnited named defendant in the complaint.

¶ 6 On November 23, 2010, the trial court entered a default judgment and judgment of foreclosure against defendant. In March 2011, the property was sold at a sheriff's sale to BankUnited, and the court approved and confirmed the report of sale. On March 31, 2011, the Sheriff of Du Page County issued BankUnited a sheriff's deed that was recorded in the Du Page County recorder of deeds office. BankUnited issued Raavi a special warranty deed that was recorded on July 25, 2011, followed on September 2, 2011, by a mortgage Raavi granted to West Town Savings Bank (West Town).

¶ 7 More than eight years after defendant was served and more than seven years after Raavi took title to the property, on September 14, 2018, defendant filed his petition to vacate the judgment of foreclosure and sale, pursuant to section 2-1401(f) of the Code (id. § 2-1401(f) ). Defendant argued that the judgments were void because

"[t]he Court did not acquire personal jurisdiction over [him] because [he] was served in Cook County, Illinois and the Circuit Court did not appoint a special process server to serve process in Cook County. Additionally, the Summons did not identify [defendant] as a defendant and was not directed to anyone. [Further,] the lack of jurisdiction was apparent on the face of the record."

¶ 8 Defendant asked the court to, inter alia , (1) quash service for defendant; (2) vacate all orders and judgments entered in the case as void ab initio ; (3) find that the lack of personal jurisdiction was apparent on the face of the record; (4) find that defendant was the owner of the property; (5) grant him possession of the property and restitution from BankUnited and Raavi for the use and occupancy of the property or, if possession could not be restored to defendant, restitution for the value of the property on the date "this petition is granted," plus the value of the use and occupancy of the property from April 14, 2011, through the date restitution is paid; and (6) grant him restitution of all profits derived from the property from BankUnited, Raavi, and West Town.

¶ 9 On December 4, 2018, Raavi filed a motion to dismiss pursuant to section 2-619.1 of the Code (id. § 2-619.1), arguing that defendant's petition was barred and should be dismissed pursuant to section 2-619 of the Code (id. § 2-619) (1) by the bona fide -purchaser protections of section 2-1401(e) of the Code, (2) by the recently amended section 2-1401(e) that bars the possessory relief sought by defendant, (3) by the doctrine of laches , (4) by section 13-109 of the Code, which bars defendant's claims to the premises as time-barred, and (5) because the summons was jurisdictionally sufficient. Raavi also argued that defendant's petition should be dismissed pursuant to section 2-615 of the Code (id. § 2-615) because the petition sought improper relief. Raavi attached to its motion, inter alia , the summons and the affidavits of the special process server. Later, the trial court granted West Town's motion to join Raavi's motion to dismiss.

¶ 10 On May 21, 2019, the trial court granted Raavi and West Town's motion to dismiss. As to Raavi, the court stated that the protections afforded in section 2-1401(e) to bona fide purchasers bar defendant's petition "because the lack of jurisdiction is not on the face of the record because of [U.S. Bank National Ass'n v. ] Rahman [, 2016 IL App (2d) 150040, 403 Ill.Dec. 725, 54 N.E.3d 866,] and" part of Schaumburg is in Du Page County. The court also dismissed defendant's petition against Raavi based on adverse possession, pursuant to section 13-109, because laches applied, and because the relief sought by defendant (restitution and occupancy) was not supported by law. The court dismissed defendant's petition against West Town based only on laches .

¶ 11 Defendant filed his notice of appeal on June 19, 2019.

¶ 12 II. ANALYSIS

¶ 13 A. Standard of Review

¶ 14 Defendant appeals the dismissal of his petition. For the following reasons, we conclude that dismissal 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." Id. § 2-619(a)(9). We review de novo the dismissal of a complaint pursuant to section 2-619(a)(9). McIntosh v. Walgreens Boots Alliance, Inc. , 2019 IL 123626, ¶ 17, 434 Ill.Dec. 189, 135 N.E.3d 73. We also review de novo a judgment on a section 2-1401 petition claiming voidness due to a lack of personal jurisdiction. Deutsche Bank National Trust Co. v. Hall-Pilate , 2011 IL App (1st) 102632, ¶ 12, 354 Ill.Dec. 330, 957 N.E.2d 924. We may affirm on any basis appearing in the record, regardless of whether the trial court relied on that basis or its reasoning was correct. Taylor, Bean, & Whitaker Mortgage Corp. v. Cocroft , 2018 IL App (1st) 170969, ¶ 60, 423 Ill.Dec. 673, 106 N.E.3d 379.

¶ 15 B. Personal Jurisdiction

¶ 16 Defendant argues that the foreclosure court lacked personal jurisdiction over him, and the trial court erred by dismissing his petition to vacate. Defendant contends that the summons issued against him was "facially noncompliant" with section 2-201(a) of the Code ( 735 ILCS 5/2-201(a) (West 2010)) and Illinois Supreme Court Rule 101(a) (eff. May 30, 2008) because the summons did not identify defendant as "Defendant." Defendant also contends that he was served by an unauthorized person, pursuant to section 2-202(a) of the Code ( 735 ILCS 5/2-202(a) (West 2010)) and that the special process server's affidavit that shows the zip code 60173 indicates on the face of the record a failure to comply with section 202(a). Therefore, according to defendant, section 2-1401(e)'s bona fide- purchaser protections do not apply.

¶ 17 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, 267 Ill.Dec. 58, 776 N.E.2d 195 (2002). Further, a petition brought on voidness grounds is not subject to the time, due-diligence, or meritorious-defense requirements applicable to other section 2-1401 petitions. Id. at 104, 267 Ill.Dec. 58, 776 N.E.2d 195.

¶ 18 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 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, 129 Ill.Dec. 53, 535 N.E.2d 818 (1989).

¶ 19 However, even if we assume that the...