Lisle Sav. Bank v. Tripp

2021 IL App (2d) 200019

175 N.E.3d 802

LISLE SAVINGS BANK, Plaintiff-Appellee,

v.Ronald D. TRIPP; Deanna C. Tripp; Worldwide Asset Purchasing II, LLC; Unknown Owners; and Nonrecord Claimants, Defendants

(Deanna C. Tripp, Defendant-Appellant).

No. 2-20-0019

Appellate Court of Illinois, Second District.

Opinion filed March 30, 2021

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

John J. Pcolinski Jr. and Mark F. Kalina, of Guerard, Kalina & Butkus, of Wheaton, for appellee.

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

¶ 1 Defendant Deanna C. Tripp appeals from the order of the circuit court of Du Page County denying her motion to quash service of the summons in proceedings to foreclose a mortgage executed by her and Ronald D. Tripp. We affirm.

¶ 2 I. BACKGROUND

¶ 3 On August 10, 2015, Lisle Savings Bank (Bank) filed a mortgage foreclosure complaint against Ronald, Deanna, Worldwide Asset Purchasing II, LLC, and unknown owners and nonrecord claimants. The Bank served a summons on Deanna, which was captioned "Lisle Savings Bank vs Ronald D. Tripp, et. al [sic ]." The words "To each Defendant: see attached service list" appeared immediately beneath the caption. The attached service list contained the words "Please Serve:" followed by the names and addresses of the identified defendants, i.e. , Ronald, Deanna, and Worldwide Asset Purchasing II, LLC. None of the defendants appeared, and the trial court entered a default judgment on the foreclosure complaint on December 21, 2015. A foreclosure sale was conducted on May 10, 2018. The delay in conducting the sale was due to the pendency of a bankruptcy proceeding in which Deanna was a debtor. On June 26, 2018, the trial court entered an order approving the sale.

¶ 4 On July 23, 2018, Deanna entered an appearance and moved to quash service. She argued in her motion that, because her name did not appear on the face of the summons, the summons was ineffective. Thus, she contended, the court lacked personal jurisdiction over her. The Bank responded, inter alia , that the failure to name Deanna on the face of the summons was a technical error and that, pursuant to section 2-201(c) of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-201(c) (West 2018)), the error did not affect the court's jurisdiction. The court denied the motion, and this appeal followed.

¶ 5 II. ANALYSIS

¶ 6 Initially, a brief comment on a procedural matter is in order. The trustee of the estate in Deanna's bankruptcy proceeding was granted leave to intervene in the trial court, as was the purchaser of the subject property. Although the trustee intervened, she did not file a notice of appeal. Nonetheless, she filed a motion in this court to adopt Deanna's briefs. A motion panel granted the motion. Deanna's attorney requested oral argument. However, Deanna's attorney and the trustee's attorney reached an agreement that the trustee's attorney would participate in the argument on behalf of both the trustee and Deanna. The trustee's attorney submitted an acknowledgment of oral argument indicating that he would appear for both Deanna and the trustee. The trustee's attorney participated in the oral argument; Deanna's attorney did not.

¶ 7 The trustee's attorney's participation in the oral argument suggests confusion about his role in these proceedings. The trustee is not a party to this appeal. Although we allowed the trustee to adopt Deanna's briefs, that did not confer upon the trustee the status of a party to this appeal or otherwise entitle the trustee to participate in the oral argument. Furthermore, because the trustee's attorney does not represent Deanna as an attorney of record, it was improper for him to argue on her behalf. Although we have considered striking the trustee's attorney's argument, we choose not to do so. We are confident that the trustee's attorney acted entirely in good faith, and we see no need for any sort of sanction. That said, Deanna's attorney's failure to participate in the oral argument that he requested is troublesome. We encourage him, in the future, to appear at oral arguments or refrain from requesting them.

¶ 8 Turning to the merits, we initially note that the Bank has argued that Deanna lacks standing to bring this appeal. "A party has standing to appeal where he or she has some real interest in the cause of action or a legal or equitable interest in the subject matter of the controversy." In re Nitz , 317 Ill. App. 3d 119, 122, 250 Ill.Dec. 632, 739 N.E.2d 93 (2000). The Bank maintains that, because of Deanna's bankruptcy proceeding, her title to the subject property became the property of the bankruptcy estate. See 11 U.S.C. § 541 (2018). Thus, according to the Bank, only the trustee of the estate may defend against the foreclosure complaint. The Bank has also filed a motion, which we have taken with the case, to dismiss this appeal because Deanna lacks standing. "The issue of standing presents a question of law that this court reviews de novo. " Powell v. Dean Foods Co. , 2012 IL 111714, ¶ 35, 358 Ill.Dec. 333, 965 N.E.2d 404.

¶ 9 In its motion to dismiss, the Bank argues that only the trustee had standing to appeal the trial court's order, but it notes that she failed to file a notice of appeal. Thus, according to the Bank, the appeal was not properly perfected. In response, Deanna contends that she has standing based on a possessory interest arising from Illinois's homestead exemption. In In re Szekely , 936 F.2d 897 (7th Cir. 1991), cited by Deanna, it was held that the homestead exemption conferred the debtor with a possessory interest in property of the estate to which the exemption applied. In its reply in support of the motion, the Bank contends that Szekely is inapplicable because the mortgage waived the homestead exemption and Deanna had no equity in the subject property.

¶ 10 We need not consider whether the homestead exemption confers standing. Even leaving aside Deanna's rights under the homestead exemption, Deanna has standing in this appeal based on her occupancy of the subject property. During the proceedings below, counsel for the trustee indicated that the property was in Deanna's possession, which we take to mean, if nothing else, that Deanna occupied the property. "[L]awful occupants of foreclosed properties cannot be removed except by [forcible entry and detainer] proceedings or unless they were made a party to foreclosure proceedings." Fifth Third Mortgage Co. v. Foster , 2013 IL App (1st) 121361, ¶ 11, 373 Ill.Dec. 616, 994 N.E.2d 101. Here, the foreclosure judgment awarded possession of the subject property to the purchaser upon the issuance of a deed to the property. Deanna has standing to challenge that aspect of the judgment on the basis that the trial court lacked personal jurisdiction over her. Accordingly, we deny the Bank's motion to dismiss this appeal.

¶ 11 We turn now to the principal issue on appeal. Does service of summons confer to the trial court personal jurisdiction over Deanna, where her name—without her defendant status—appeared only on the service list accompanying the summons? When the summons was issued, section 2-201 of the Code ( 735 ILCS 5/2-201 (West 2016) ) provided, in pertinent part:

"(a) Every action, unless otherwise expressly provided by statute, shall be commenced by the filing of a complaint. The clerk shall issue summons upon request of the plaintiff. The form and substance of the summons, and of all other process, and the issuance of alias process, and the service of copies of pleadings shall be according to rules.

(b) One or more duplicate original summonses may be issued, marked ‘First Duplicate,’ ‘Second Duplicate,’ etc., as the case may be, whenever it will facilitate the service of summons in any one or more counties, including the county of venue."

¶ 12 The form of a summons is governed by Illinois Supreme Court Rule 101 (eff. July 17, 2020). Rule 101(a) provides, in pertinent part, that the summons "shall be directed to each defendant." Ill. S. Ct. R. 101(a) (eff. July 17, 2020). The rule prescribes the use of form summonses included in an appendix. Ill. S. Ct. R. 101(b)-(e) (eff. July 17, 2020). Illinois Supreme Court Rule 101(g) (eff. July 17, 2020) provides that "[t]he use of the wrong form of summons shall not affect the jurisdiction of the court." Illinois Supreme Court Rule 131 (eff. July 15, 2020), which governs the form of documents generally, is also germane to the sufficiency of the summons. That rule provides that "[a]ll documents shall be entitled in the court and cause, and the plaintiff's name shall be placed first." Ill. S. Ct. R. 131(b) (eff. July 15, 2020). Illinois Supreme Court Rule 131(c) (eff. July 15, 2020) provides that,

"[i]n cases in which there are two or more plaintiffs or two or more defendants, it is sufficient in entitling documents, except a summons , to name the first-named plaintiff and the first-named defendant with the usual indication of other parties, provided there be added the official number of the cause." (Emphasis added.)

¶ 13 Illinois courts have had several occasions to consider how a defendant must be named in a summons. In Ohio Millers Mutual Insurance Co. v. Inter-Insurance Exchange of the Illinois Automobile Club , 367 Ill. 44, 10 N.E.2d 393 (1937), our supreme court held that a summons that failed to name approximately 3000 people on its face was invalid even though their names were listed on a document attached to the summons. In Fleshner v. Copeland , 13 Ill. 2d 72, 147 N.E.2d 329 (1958), the court held that a summons was effective for a defendant who was not named on the summons but whose name appeared in the complaint's body. The plaintiffs in Fleshner submitted a request to the clerk of the court to issue a summons. The request was captioned with the names of the first-named plaintiff and the first-named defendant. The Fleshner court held that, under a supreme court rule nearly identical to Rule 131(c), the request was proper and...