City of Rockford v. Gilles

2022 IL App (2d) 210521

218 N.E.3d 1138

467 Ill.Dec. 267

The CITY OF ROCKFORD, Plaintiff-Appellant,

v.Jeffrey A. GILLES, Landmark National Corporation, Unknown Owners, and Nonrecord Claimants, Defendants

(Jeffrey A. Gilles, Defendant-Appellee).

No. 2-21-0521

Appellate Court of Illinois, Second District.

Filed November 29, 2022

Ifeanyichukwu C. Mogbana and Brooke Benoit, of Rockford, for appellant.

G. Michael Scheurich, of Guyer & Enichen, P.C., of Rockford, for appellee.

PRESIDING JUSTICE BRENNAN delivered the judgment of the court, with opinion.

¶ 1 Plaintiff, the City of Rockford (City), brought an action to foreclose special assessment liens on the property of defendant, Jeffrey A. Gilles. Following Gilles's failure to appear, the trial court entered an order of default and judgment of foreclosure and sale. The trial court subsequently entered an order approving the report of sale and distribution, confirming the sale, and ordering eviction. More than two years later, Gilles filed a petition for relief from judgment pursuant to section 2-1401 of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-1401 (West 2020) ). The trial court granted the petition and vacated the prior orders. For the reasons set forth below, we reverse the trial court's order granting the section 2-1401 petition.

¶ 2 I. BACKGROUND

¶ 3 Gilles owned two vacant lots located on Rote Road in Rockford. At some point, Gilles moved out of Illinois and to Colorado. It was undisputed that, over the course of 13 years—between 2004 and 2017—the City recorded with the Winnebago County Recorder 20 special assessment liens against the property. The liens were for the City's costs and expenses incurred in mowing the property, cleaning up hazardous debris, and/or abating nuisance vegetation on the property. The amount due totaled $11,465.

¶ 4 A. Default Order and Order Confirming Sale

¶ 5 On November 29, 2017, the City filed a complaint to foreclose the special assessment liens against the property. The named defendants were Gilles, Landmark National Corporation (Landmark) (alleged to be the mortgage holder), unknown owners, and nonrecord claimants. Three attempts to serve Gilles personally at his last known address in Colorado were made on December 28, 2017, at 8:25 a.m.; January 3, 2018, at 11:45 a.m.; and January 9, 2018, at 3:30 p.m. The return of service noted, respectively, "NO CONTACT/LEFT CARD ON DOOR GATE OPEN," "NO CONTACT/LEFT CARD ON MAIL BOX GATE CLSED," and "NO CONTACT/LEFT CARD GATE CLOSED."¹ Subsequently, the trial court granted the City's motion to serve by publication. The certificate of publication was filed on June 5, 2018.

¶ 6 On July 30, 2018, the City filed a motion for a default judgment and for the entry of a judgment of foreclosure and sale of the property and a motion to shorten the redemption period on the basis that the property had been abandoned. The City's proof of service reflects that notice of the motions was mailed to Gilles's last known address in Colorado and to Landmark.

¶ 7 On August 23, 2018, the trial court entered an order of default against Gilles and the other defendants, a judgment of foreclosure and sale of the property, an order appointing a selling officer, and an order shortening the redemption period. A copy of the notice of sale was mailed to Gilles at his last known address in Colorado and to Landmark on September 3, 2018.

¶ 8 Following the sale of the property to the City, on November 1, 2018, the trial court entered an "Order Approving Report Of Sale And Distribution, Confirming Sale, And Order to Evict," finding that there was no redemption or reinstatement within the relevant period, the court obtained personal jurisdiction over those defendants personally liable to the City for any deficiency from the sale, all notices required by section 15-1507(c) of the Illinois Mortgage Foreclosure Law (Foreclosure Law) ( 735 ILCS 5/15-1507(c) (West 2018)) were given, and the sale of the property to the City was fairly and properly made. The November 1, 2018, order also directed the selling officer to execute and deliver to the successful bidder a deed sufficient to convey title. Accordingly, a judicial deed for the property was issued to the City and recorded with the Winnebago County Recorder on November 8, 2018. On September 11, 2020, the City entered into a contract to sell one of the lots on the property to a third party.

¶ 9 B. Untimeliness of Section 2-1401 Petition

¶ 10 Over two years after the entry of the order approving the sale of the property, on November 19, 2020, Gilles filed a petition for relief from judgment pursuant to section 2-1401, with a supporting affidavit. (The affidavit was unsigned; Gilles filed a signed supporting affidavit on December 2, 2020). Gilles sought an order vacating the order confirming sale, order for sale, and order of foreclosure.

¶ 11 Gilles alleged in his petition that he "never received actual notice of the proceeding" and "made no effort to avoid or evade service of process." Rather, "during the applicable period, [he] lived in the State of Colorado, was employed as a physician in the State of Montana and spent the vast majority of his time in Colorado out of his residence and in hospitals and other medical facilities attending to his wife during her suffering of, treatment for, and ultimate death from brain cancer."

¶ 12 Gilles alleged that he has a meritorious defense to the City's foreclosure complaint "in that the value of the property foreclosed is substantially and unconscionably greater than the amounts due pursuant to mowing, weed or other municipal liens herein foreclosed by the [City] and at all relevant times, [Gilles] was financially able and willing to pay all such amounts due." In addition, Gilles alleged that he acted diligently "from the time he discovered the claim to the land." In his affidavit, Gilles specified that, upon failing to receive a 2019 tax bill for the property during the summer of 2020, he "checked with the Winnebago County Treasurer's office on-line to discover that taxes were assessed in the name of the [City]." Gilles attested that, "[u]pon so learning, he immediately contacted his Illinois counsel who ordered a title search within days of such contact and within one week of receiving such title search reports, checked the contents of the court file on this matter, advised your affiant and in consultation with them, the decision was made to file this petition."

¶ 13 The trial court set a briefing schedule on the section 2-1401 petition.

¶ 14 1. Gilles's Supporting Memorandum

¶ 15 Gilles acknowledged section 2-1401 ’s limitations period but asserted that "extraordinary circumstances justify a tolling of the period." Gilles argued that he was "prevented from asserting his rights in a most extraordinary way in that COVID closed public offices and interfered with the work of title companies."

¶ 16 Gilles elaborated that, "on or about September 2, 2020," after he did not receive a tax bill in the summer of 2020 and learned that the property was assessed to the City as the owner, he contacted his attorneys to investigate. His attorneys "ordered a title search from NLT Title LLC on September 3, 2020," and on October 6, 2020, and October 21, 2020, his attorneys

"again contacted the title company concerning the title search and were advised that due to the COVID pandemic and closure of the Winnebago County Recorder's office and Winnebago County Clerk's office for a period of time, the title company was unable to conduct and provide a title search until November 2, 2020."

¶ 17 Upon subsequent receipt of the title search, "on or about November 12, 2020," Gilles's attorneys "visited the offices of the Winnebago County Clerk of Courts and examined the court file and determined that the title to the property had transferred from Gilles to the City as a result of a foreclosure action by the City of mowing liens." Then, on November 17, 2020, "Gilles's attorneys conferred with him and on November 18, 2020, this petition was filed." (The petition was actually filed on November 19, 2020). Accordingly, Gilles argued that equitable tolling should be applied to allow consideration of the section 2-1401 petition.

¶ 18 Gilles also reiterated that he established the existence of a meritorious defense to the underlying action in that he alleged his "complete willingness and ability to have satisfied that amount [(of the liens)] at the time the claim was made and is presently able and willing to, and offers to pay that amount plus interest, plus all of the City's court costs in the foreclosure action." According to Gilles, he "never received notice of the liens and did not receive actual notice of the foreclosure" and the amount due was insignificant compared to the value of the property. Gilles concluded that he would suffer a significant forfeiture and the City would reap a windfall in the absence of relief under section 2-1401.

¶ 19 2. City's Memorandum in Opposition

¶ 20 Initially, the City responded that the section 2-1401 petition was untimely and pointed to Gilles's concession that he failed to file his petition within the two-year limitations period set forth in section 2-1401.² The City argued that the doctrine of equitable tolling did not apply to "invigorate defendant's attempt to vacate the court's default judgment."

¶ 21 The City further argued that Gilles failed to allege facts to support the application of equitable tolling to the limitations period. Specifically, while Gilles asserted that the county offices were "closed for periods of time" due to the COVID-19 pandemic, he failed to specify the duration of the closings or demonstrate that in-person visits were indispensable to obtaining the requisite information. In this regard, he failed to allege diligent efforts, such as contacting the county offices through other means. Accordingly, the City argued, Gilles failed to establish that the COVID-19 pandemic was an extraordinary circumstance that hindered the...