Phoenix Cap. v. Nsiah

242 N.E.3d 273

2022 IL App (1st) 220067

PHOENIX CAPITAL, LLC, as Assignee of Streamline Capital Partners LLC, Plaintiff-Appellee,

v.Kwabena NSIAH, Defendant-Appellant.

No. 1-22-0067

Appellate Court of Illinois, First District, Sixth Division.

Filed September 29, 2023

Appeal from the Circuit Court of Cook County, Illinois County, No. 2004 Ml 160235, The Honorable Martin Molz, Judge Presiding.

Andrew Finko, of Chicago, for appellant.

No brief filed for appellee.

OPINION

JUSTICE C.A. WALKER delivered the judgment of the court, with opinion.

¶ 1 Streamline Capital Partners, LLC (Streamline), filed a complaint against defendant-appellant Kwabena Nsiah, seeking payment for a defaulted debt. Nsiah filed an appearance form in the circuit court in December 2004 but made no further engagement with the court. In March 2005, the circuit court entered a default judgment against Nsiah when he failed to appear for a status hearing. Subsequently, plaintiff-appellee Phoenix Capital, LLC (Phoenix Capital), acquired all rights, title, and interest in the default judgment. The case proceeded to postjudgment proceedings, and Nsiah appeared in court for the first time in September 2008. During the next 13 years, Nsiah appeared in court and participated in the postjudgment proceedings. In May 2021, Nsiah filed a motion to quash service of process, alleging plaintiff’s failure to serve the summons and complaint to Nsiah in accordance with statutory service requirements deprived the circuit court of personal jurisdiction to enter the default judgment. The circuit court denied the motion. On appeal, Nsiah argues the circuit court erred in denying his motion to quash service of process. For the following reasons, we affirm the circuit court’s judgment.

¶ 2 I. BACKGROUND

¶ 3 On September 15, 2004, Streamline filed a complaint against Nsiah, seeking payment on a defaulted Citibank credit card account balance of $2550.06. Streamline attached the bill of sale to the complaint demonstrating Streamline was the assignee of all rights, title, and interest in the Citibank account. In October 2014, the Cook County Sheriff’s Office attempted to serve Nsiah at the 2400 block of East 103rd Street in Chicago but was unsuccessful. The circuit court granted Streamline’s ex parte motion for appointment of a special process server and alias summons. In the service return, the process server stated he left a summons and complaint with Nsiah’s mother, Annie Nsiah,¹ at the 103rd Street address on December 1, 2004. The process server also stated he mailed a copy of the documents to Nsiah at the same address on December 3, 2004. On December 14, 2004, Nsiah filed an "Appearance and Jury Demand" form in the circuit court. On December 28, 2004, the court dismissed the case for want of prosecution. Streamline filed a motion to correct the record, and the court vacated its December 28 judgment and scheduled the case for status on March 22. Nsiah failed to appear on the day of the status hearing, and the court entered an ex parte default judgment against Nsiah.

¶ 4 In December 2005, the circuit court issued a citation to discover assets. Streamline filed third-party citations to discover assets against Wendy’s and Bank of America. Nsiah was ordered to appear in court on May 2, 2006. When Nsiah failed to appear in court on May 2, Streamline filed a petition for rule to show cause of indirect civil contempt for failure to appear, which the court granted. Nsiah was ordered to appear in court on April 2, 2007. Nsiah did not appear in court on April 2, and the court entered a contempt order. The Cook County Sheriff’s Office attempted to serve the contempt order but was unable to locate Nsiah. The court issued a second contempt order.

¶ 5 On September 8, 2008, Nsiah appeared in court to assert certain personal property statutorily exempt from judgment. The court granted the motion and entered an agreed order for installment payments to Streamline. In October 2008, Streamline filed a petition for rule to show cause for failure to comply with the installment order. The court issued an order directing Nsiah to show cause on why he should not be held in contempt for failing to make payments pursuant to the installment order. When Nsiah failed to appear on the scheduled court date, the court entered another contempt order against Nsiah. Streamline subsequently filed a motion to vacate the agreed installment payments, which the court granted in December 2009. Two days later, the court granted Streamline leave to initiate subsequent supplementary proceedings to access any new sources of income or assets in Nsiah’s possession.

¶ 6 Streamline filed an additional third-party citation against Bank of America on January 13, 2010, and the court ordered that a certain amount of funds held in Nsiah’s Bank of America account be turned over to Streamline. Nsiah appeared in court on February 22, 2010, and moved for exemptions, which the court granted. In February 2017, Phoenix Capital was assigned all rights, title, and interest in the default judgment. In January 2018, Phoenix Capital filed a petition to revive judgment. Phoenix also filed a wage deduction summons on September 18, 2018. Nsiah subsequently filed a motion to vacate but did not specify what order he sought to vacate. The court never heard or ruled on the motion. In November 2018, Nsiah appeared in court and argued for a reduced wage deduction. The court granted Nsiah’s request.

¶ 7 On March 17, 2021, the court entered an order of satisfaction and release of judgment against Nsiah for the defaulted debt. On May 12, 2021, Nsiah filed a motion to quash service of process. In the motion to quash, Nsiah claimed he was never served in strict compliance with section 2-203 of the Code of Civil Procedure (735 ILCS 5/2-203 (West 2020)) and, therefore, the ex parte default judgment is void for lack of personal jurisdiction. In support of his motion, Nsiah filed two affidavits. The first affidavit provided by Nsiah stated he resided at the 12500 block of South Ashland Avenue in Calumet Park from 2001 until May or June 2005. The second affidavit provided by Annie stated that she had lived at the 103rd Street address since 1986 and that Nsiah did not live there from 2001 to 2005. Annie also stated that Nsiah resided in Calumet Park during that time.

¶ 8 In response, Phoenix Capital argued Nsiah waived any jurisdictional objections by filing his appearance and repeatedly appearing and participating in court. On August 11, 2021, the court held a hearing on the motion to quash. A transcript of the hearing is not included in the record on appeal. The court certified a bystander’s report prepared by Phoenix Capital pursuant to Illinois Supreme Court Rule 323(c) (eff. July 1, 2017).² According to the bystander’s report, counsel from both parties appeared for a nonevidentiary hearing on the motion to quash. Nsiah’s counsel "first outlined the arguments in his brief" and then "cited statutory requirements for substitute service and relevant cases, as outlined in its brief, relating to the same and relating to Motions to challenge substitute service." Phoenix Capital’s counsel made several counter arguments, including "mootness/laches estopping Defendant from seeking vacature in light of the above facts and the extensive passage of time combined with Defendant’s participation in the matter." The hearing judge considered several factors including, "the sufficiency of service, Defendants’ waiver of service objections and Defendant’s extensive participation in litigation combined with the extensive passage of time following such participation before raising any objections to jurisdiction" and denied the motion to quash. The next day, the court reiterated that it denied the motion "based on several factors raised by Plaintiff that supported the standing of the Judgment and deficiencies in Defendant’s Motion and supporting documents that did not establish a basis for vacature of the Judgment." Nsiah filed a motion for reconsideration, which the court denied. Nsiah now appeals.

¶ 9 II. JURISDICTION

¶ 10 Nsiah filed a motion to quash service of process on May 5, 2021. The circuit court denied Nsiah’s motion on August 11, 2021. On September 9, 2021, Nsiah filed a motion for reconsideration. The court denied the motion for reconsideration on December 15, 2021. Nsiah filed a notice of appeal on January 12, 2022. We have jurisdiction over this appeal pursuant to article VI, section 6, of the Illinois Constitution (Ill. Const. 1970, art. VI, § 6) and Illinois Supreme Court Rule 303 (eff. July 1, 2017).

¶ 11 III. ANALYSIS

[1] ¶ 12 On appeal, Nsiah argues the circuit court erred in denying the motion to quash service of process. Specifically, Nsiah contends (1) the court did not have personal jurisdiction because he did not receive service of process in strict compliance with section 2-203, (2) his knowledge of the lawsuit does not equate to waiver of service or consent to personal jurisdiction, (3) the appearance form does not waive his right to challenge the court’s jurisdiction, (4) the doctrines of laches and mootness are inapplicable to challenges to a court’s personal jurisdiction, (5) the court relied on inapposite cases in its determination, and (6) judgments entered without personal jurisdiction are void. Although Phoenix Capital did not file a brief responding to Nsiah’s arguments, we may decide this appeal on the merits as the record and claimed errors are straightforward and can be determined without the aid of an appellee’s brief. First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133, 345 N.E.2d 493 (1976).

¶ 13 A. Mootness

[2] ¶ 14 We first address the issue of mootness because there is a question of this court’s jurisdiction to review the merits of the appeal. Tirio v. Dalton, 2019 IL App (2d) 181019, ¶ 21, 437 Ill.Dec. 671, 144 N.E.3d 1261; see People v. Aldama, 366 Ill. App. 3d 724, 725, 304 Ill.Dec. 449, 852 N.E.2d...