Nationstar Mortg. LLC v. Benavides

2020 IL App (2d) 190681

171 N.E.3d 514

446 Ill.Dec. 697

NATIONSTAR MORTGAGE LLC, Plaintiff,

v.Rita BENAVIDES; Iderson Carvajal; GMAC Mortgage Corporation; BMO Harris Bank, N.A., f/k/a Harris N.A.; Unknown Owners and Nonrecord Claimants; and Unknown Occupants, Defendants

(U.S. Bank National Association, as Trustee for the RMAC Trust, Series 2016-CTT, Plaintiff-Appellee;

v.Rita Benavides, Defendant-Appellant).

No. 2-19-0681

Appellate Court of Illinois, Second District.

Opinion filed August 27, 2020

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

Joseph M. Herbas, of Shapiro Kreisman & Associates, LLC, of Chicago, for appellee.

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

¶ 1 Defendant, Rita Benavides, appeals from the trial court's orders denying her motion to quash service, and her motion to reconsider that denial, following the trial court's entry of a default judgment on the complaint of plaintiff, Nationstar Mortgage LLC (Nationstar), to foreclose a mortgage. Defendant contends that the trial court's interpretation of section 2-201 of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-201 (West 2018) ) was in error because the issued summons did not comply with Illinois Supreme Court Rule 101 (eff. Jan. 1, 2016). Defendant further contends that the trial court abused its discretion in denying her motion to reconsider. For the reasons that follow, we affirm.

¶ 2 I. BACKGROUND

¶ 3 On September 20, 2016, plaintiff,¹ filed a foreclosure complaint against defendant, Rita Benavides (defendant), seeking foreclosure of real estate located at 491 Cheyenne Trail, Carol Stream, Illinois.² Plaintiff, through its counsel, prepared and submitted a summons, which was served at the Cheyenne Trail address by leaving a copy of the summons and foreclosure complaint with defendant's son. The summons and complaint were also mailed to defendant on October 13, 2016.

¶ 4 Both the summons left with defendant's son and the copy mailed to her were on a form provided by Du Page County. The case caption on the summons appeared as follows:

"NATIONSTAR MORTGAGE LLC

-vs-

RITA BENAVIDES; IDERSON CARVAJAL; GMAC MORTGAGE CORPORATION; BMO HARRIS BANK, N.A. F/K/A HARRIS, N.A.; UNKNOWN OWNERS AND NONRECORD CLAIMANTS; UNKNOWN OCCUPANTS"

The summons then relayed the following information:

"To each Defendant:

See Attached Service List

YOU ARE SUMMONED and required to file an answer to the complaint in this case, a copy of which is hereto attached, or otherwise file your appearance in the Office of the Clerk of the Circuit Court, 505 North County Farm Road, Wheaton IL, 60187 within 30 days after service of this summons, not counting the date of service. IF YOU FAIL TO DO SO A JUDGMENT BY DEFAULT MAY BE TAKEN AGAINST YOU FOR THE RELIEF ASKED IN THE COMPLAINT. YOU ARE FURTHER ADVISED THAT THE TIME IN WHICH THE SUBJECT REAL ESTATE MAY BE REDEEMED FROM FORECLOSURE, PURSUANT TO LAW COMMENCES TO RUN WITH THE SERVICE OF THIS SUMMONS."

Attached to the summons was a service list directed at the process server containing a caption with the above-named litigants. The caption on the service list specifically identifies the parties as "Plaintiff" and "Defendants". Directly under the caption it reads "Please Serve: Rita Benavides, 491 Cheyenne Trail, Carol Stream IL 60188."

¶ 5 On March 29, 2017, plaintiff filed motions for default judgment and sent defendant a notice of motion for an April 10, 2017, court date. On April 10, 2017, the trial court entered a default order and judgment of foreclosure and sale in favor of plaintiff. Plaintiff mailed a copy of the default order to defendant on April 11, 2017. On June 6, 2017, a notice of sale was sent to defendant informing her that a sheriff sale was scheduled for July 13, 2017. The scheduled sale was adjourned and continued to August 17, 2017, but was subsequently cancelled. On January 4, 2018, another notice of sale was sent to defendant informing her of a sheriff sale scheduled for February 1, 2018. That sheriff sale was also adjourned and continued to March 29, 2018. On February 26, 2018, plaintiff sent defendant notice of the March 29, 2018, sale. Defendant filed a Chapter 7 bankruptcy petition on March 29, 2018, which automatically stayed the sheriff sale scheduled for that day.

¶ 6 On April 20, 2018, the United States bankruptcy judge entered an order modifying the automatic stay and allowed plaintiff to resume the foreclosure. Following a final notice of sale sent to defendant informing her of a sheriff sale scheduled for August 16, 2018, plaintiff successfully purchased the Cheyenne Trail real estate. On September 7, 2018, plaintiff sent defendant a notice of motion for a September 17, 2018, hearing on its motion to confirm the sheriff sale and order an eviction. The trial court entered an order approving the sale and entered an eviction order directing the Sheriff of Du Page County to evict defendant after 30 days. Plaintiff mailed a copy of the trial court's order to defendant on September 21, 2018.

¶ 7 On October 17, 2018, 30 days after the entry of the trial court's order approving sale and eviction, defendant filed a motion to quash service. Relevant here, defendant's motion argued that the original summons she received violated section 2-201(c) of the Code and Illinois Supreme Court Rule 101(d) (eff. Jan. 1, 2016) and, therefore, did not vest the trial court with personal jurisdiction over her.

¶ 8 On February 25, 2019, the trial court held a hearing on defendant's motion to quash service. The trial court denied defendant's motion. On March 20, 2019, defendant filed a motion to reconsider the trial court's February 25, 2019, ruling. Defendant argued that the then-recently filed opinion in Studentowicz v. Queen's Park Oval Asset Holding Trust , 2019 IL App (1st) 181182, 430 Ill.Dec. 133, 125 N.E.3d 1151, supported her position that section 2-201(c) of the Code requires the content of a summons to identify a defendant as a defendant on the face of the summons. In denying defendant's motion to reconsider, the trial stated:

"I don't see a defect here. This defendant was named right on the summons. And it says, see attached service list. I don't think that's a defect. And according to 201(c) * * * [i]t says the Court's jurisdiction is not [a]ffected by a technical error in the format of the summons if the summons has been issued by the clerk [of] the court and a personal entity to be served [is] identified as a defendant.

So I think that's been done here. I don't think there's anything new here. I think that the Studentowicz case is easily distinguishable by the fact that the defendant in that case was misidentified. It was not a correct thrust and that was easily distinguishable here."

Defendant then filed this timely appeal.

¶ 9 II. ANALYSIS

¶ 10 On appeal, defendant contends that the trial court erred in denying her motion to quash service because it lacked personal jurisdiction over her, as, she argues, the summons issued with plaintiff's complaint for foreclosure was facially defective due to its failure to comply with the strictures of section 2-201(c) of the Code ( 735 ILCS 5/2-201(c) (West 2018)) and Illinois Supreme Court Rule 101(a) and (d) (eff. Jan. 1, 2016). Additionally, defendant contends that the trial court misapplied the law as articulated in Studentowicz when it denied her motion to reconsider. We will address each of defendant's contentions in turn.

¶ 11 " ‘Personal jurisdiction may be established either by service of process in accordance with statutory requirements or by a party's voluntary submission to the court's jurisdiction.’ " Arch Bay Holdings, LLC-Series 2010B v. Perez , 2015 IL App (2d) 141117, ¶ 10, 397 Ill.Dec. 921, 43 N.E.3d 562 (quoting BAC Home Loans Servicing, LP v. Mitchell , 2014 IL 116311, ¶ 18, 379 Ill.Dec. 85, 6 N.E.3d 162 ). " ‘Generally, a judgment rendered without service of process, where there has been neither a waiver of process nor a general appearance by the defendant, is void regardless of whether the defendant had actual knowledge of the proceedings.’ " Id. (quoting Schorsch v. Fireside Chrysler-Plymouth, Mazda, Inc. , 172 Ill. App. 3d 993, 1001, 123 Ill.Dec. 230, 527 N.E.2d 693 (1988) ). Accordingly, a foreclosure judgment entered without service of process is void. Id. Where a summons is invalid, service of the same is also without effect. Id. Because the question whether a court had personal jurisdiction is a question of law, our review is de novo . Mugavero v. Kenzler , 317 Ill. App. 3d 162, 164, 251 Ill.Dec. 46, 739 N.E.2d 979 (2000).

¶ 12 In Illinois, statutes and supreme court rules govern the use of summons. Section 2-201(a) of the Code provides for the issuance of a summons in a civil case and states:

"Every action, unless otherwise expressly provided by statute, shall be commenced by the filing of a complaint. * * * 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." 735 ILCS 5/2-201(a) (West 2018).

¶ 13 Illinois Supreme Court Rule 101(a) (eff. Jan. 1, 2016) provides instruction regarding the summons form and states:

"The summons shall be issued under the seal of the court, tested in the name of the clerk, and signed with his name. It shall be dated on the date it is issued, shall be directed to each defendant, and shall bear the address and telephone number of the plaintiff or his attorney * * *."

Rule 101(d) provides a sample summons form, stating that the summons shall be "substantially" in the form provided. Ill. S. Ct. R. 101(d) (eff. Jan. 1, 2016). That form includes a caption that directs "naming all defendants." Id. Illinois Supreme Court Rule 131(c) (eff. Jan. 1, 2016), pertaining to pleadings and other documents, provides that, in cases where there are multiple parties, "it is sufficient in entitling documents, except a summons , to name the first-named plaintiff and the first-named defendant with the usual...