Opinion
Appeal No. 3-20-0237
05-10-2021
U.S. BANK TRUST NATIONAL ASSOCIATION, not in its individual capacity but solely as Owner Trustee for Carisbrook Asset Holding Trust, Plaintiff-Appellee, v. TRACY ALEXANDER; HUNTINGTON ESTATES HOMEOWNERS ASSOCIATION; GLORIA LOCKE; UNKNOWN OWNERS and NON RECORD CLAIMANTS, Defendants (Gloria Locke, Defendant-Appellant).
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois.
Circuit No. 18-CH-1193
Honorable Theodore J. Jarz, Judge, Presiding.
JUSTICE SCHMIDT delivered the judgment of the court.
Justices Daugherity and Wright concurred in the judgment.
ORDER
¶ 1 Held: The circuit court erred in denying the motion to quash service without holding an evidentiary hearing.
¶ 2 In this mortgage foreclosure action initiated by plaintiff, U.S. Bank Trust National Association solely as owner trustee for Carisbrook Asset Holding Trust (U.S. Bank), defendant, Gloria Locke, moved to quash service. Locke claimed substitute service upon her was ineffective as it was not left at her usual place of abode. Locke filed numerous affidavits and documents supporting her motion to quash. Without holding an evidentiary hearing, the circuit court denied the motion to quash. We reverse and remand for further proceedings.
¶ 3 I. BACKGROUND
¶ 4 In March 1999, Tracy Alexander executed a note and mortgage secured by a lien against real property located in Bolingbrook, Illinois. Locke is a co-owner of the property, but allegedly never resided there. Locke obtained her interest in the property via a quitclaim deed subsequent to the mortgage. In a prior foreclosure case in 2008 concerning the same property, note, and mortgage, Locke was a named party in the complaint and was served at an address in Chicago.
¶ 5 In July 2018, U.S. Bank filed a foreclosure action naming both Alexander and Locke as defendants. Summons issued for both Alexander and Locke with the property in Bolingbrook listed as their address. U.S. Bank filed an affidavit from special process server John Prystalski stating that he served the summons and complaint on Locke by substitute service on Alexander at the Bolingbrook property. Specifically, Prystalski's affidavit states, "Tracy Alexander confirmed that the defendant is her mother-in-law and they both reside at this address. She said that the defendant was not home at the time of service." All subsequent notices in the foreclosure action were sent to Locke at the Bolingbrook property.
¶ 6 Neither Alexander nor Locke filed an appearance; U.S. Bank moved for default judgment. The circuit court entered a default order and a judgment of foreclosure and sale. U.S. Bank then filed a notice of sale. Alexander filed a pro se "emergency motion to cancel the sale." Therein
Alexander stated, "[t]his is our primary residence that we have live[d] in for over twenty (20) years. We desperately would like to keep our home[.]" (Emphases added.) Subsequently, the court allowed U.S. Bank to proceed to judicial sale. Thereafter, U.S. Bank filed a motion requesting an order approving the report of sale and distribution and eviction.
¶ 7 On July 22, 2019, Locke filed a motion to quash the substitute service. Locke argued that the substitute service upon her through Alexander at the Bolingbrook property was ineffective as it was not her abode as she never resided there. She asserted that for the past 20 years and at all times relevant to this case, she resided at an address in Chicago. Locke filed an affidavit attesting to these matters attaching copies of her Illinois driver's license, ComEd utility bills at the time of the alleged service, and her 2018 federal and state income tax returns. All of these documents listed the same address in Chicago as Locke's mailing address. Locke also attached to her motion to quash service an affidavit from Alexander wherein Alexander stated under oath that Locke never lived with her at the Bolingbrook property. Alexander also swore she never told the process server that Locke lived with her at the property.
¶ 8 U.S. Bank argued in opposition to the motion that Locke was estopped from arguing she resided at a different address due to Alexander's judicial admission in the pro se emergency motion. According to U.S. Bank, Alexander admitted that she and Locke lived at the Bolingbrook property based on the use of the words "our" and "we."
¶ 9 In response, Locke submitted a supplemental affidavit from Alexander wherein Alexander clarified that when she used the words "our" and "we" in the pro se emergency motion, she was referring to herself and her adult son Antowine Locke, Jr., not Locke. Locke also submitted an affidavit from Antowine wherein Antowine stated that Locke never lived at the property.
¶ 10 The circuit court held a hearing on the motion to quash. The parties reiterated their arguments as laid out above. Counsel for Locke argued that at the minimum, the court should hold an evidentiary hearing based on the affidavits submitted. The circuit court denied Locke's motion to quash without holding an evidentiary hearing. The court also approved the report of sale and distribution, confirming the sale and issued an eviction order. In denying Locke's motion and approving the judicial sale, the circuit court found that Locke's interest in the property was subject to the mortgage and that Locke had no meritorious claims to raise even if the foreclosure proceedings were to start all over. In sum, the court stated, "I don't see any point in going backwards in the case just to take another step forward." On the facts of the case, the court found Locke to be properly served and that she had notice of the matter.
¶ 11 Attached to Locke's motion to reconsider was a copy of a service affidavit from the 2008 foreclosure matter showing that she was served at the same address in Chicago she claims to reside at in this case. The court denied the motion to reconsider.
¶ 12 Locke appeals.
¶ 13 II. ANALYSIS
¶ 14 Locke argues the circuit court erred in denying the motion to quash service. She avers that the affidavit of service provided by U.S. Bank is not evidence once rebutted by corroborated affidavits. Ergo, she presented unrebutted evidence that the Bolingbrook property was not her usual place of abode. U.S. Bank argues that Locke failed to overcome the prima facie evidence of substitute service, the doctrine of laches applies to her motion to quash, and that Alexander judicially admitted in her pro se emergency motion that the Bolingbrook property was Locke's principal residence.
¶ 15 A judgment rendered without service of process in the manner directed by statute, 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. State Bank of Lake Zurich v. Thill, 113 Ill. 2d 294, 308-09 (1986). Substitute service must be obtained on a defendant by:
"leaving a copy at the defendant's usual place of abode, with some person of the family or a person residing there, of the age of 13 years or upwards, and informing that person of the contents of the summons, provided the officer or other person making service shall also send a copy of the summons in a sealed envelope with postage fully prepaid, addressed to the defendant at his or her usual place of abode," 735 ILCS 5/2-203(a)(2) (West 2018).
¶ 16 In resolving a challenge to the court's personal jurisdiction over a defendant, the court first determines whether the plaintiff has made a prima facie case in favor of jurisdiction. TCA International, Inc. v. B&B Custom Auto, Inc., 299 Ill. App. 3d 522, 532 (1998). If the plaintiff fails to meet this burden, or defendant fails to contradict the plaintiff's case by establishing a prima facie case of a lack of jurisdiction, the inquiry ends. Id. An evidentiary hearing is only necessary in the presence of a factual dispute between the affidavits supplied to the court, which if resolved in defendant's favor precludes the imposition of jurisdiction. Id. If a material evidentiary conflict exists, the circuit court must hold an evidentiary hearing to resolve those disputes. Id.; Russell v. SNFA, 408 Ill. App. 3d 827, 831-32 (2011).
¶ 17 Generally, we review de novo whether a circuit court obtained personal jurisdiction. Illinois Service Federal Savings & Loan Ass'n of Chicago v. Manley, 2015 IL App (1st) 143089,
¶ 36. Our review is also de novo where the circuit court held no evidentiary hearing and based its decision entirely on documentary evidence. Bank of New York Mellon v. Karbowski, 2014 IL App (1st) 130112, ¶ 10.
¶ 18 Initially, we note that Locke's contention that the affidavit of service provided by U.S. Bank holds no evidentiary value once rebutted by corroborated affidavits and therefore she presented unrebutted evidence is without merit. In the cases cited by Locke (Trust Co. of Chicago v. Sutherland Hotel Co., 389 Ill. 67 (1945); Lewis v. West Side Trust & Savings Bank, 377 Ill. 384, 385 (1941); Harris v. American Legion John T. Shelton Post No. 838, 12 Ill. App. 3d 235, 238 (1973)), there were only returns of service, not an affidavit of service as on file here. U.S. Bank was not required to submit a counteraffidavit to create a question of fact as the return in this case is already in the form of an affidavit of service. We see no reason to deny the affidavit of service the evidentiary value afforded to any other affidavit.
¶ 19 Further, U.S. Bank fails to provide authority approving the application of laches to preclude a motion to quash service before a final order is entered in a foreclosure action. Aside from the lack of authority, U.S. Bank failed to adduce sufficient facts for this court to affirm the judgment based on laches. Specifically, while U.S. Bank contends Locke "never denied she had actual knowledge of the foreclosure," it failed to muster any proof that Locke knew about the foreclosure action and purposely sat on her rights, or that an unreasonable amount of time elapsed after she learned of her rights.
¶ 20 In this case, there are a number of factual disputes the lower court decided to leave unresolved. Instead, the court ruled based on the fact that Locke's interest in the property only developed after the property was mortgaged. Of course, this is immaterial in determining the court's personal jurisdiction over Locke, i.e., whether substitute service was effective. In order to
extinguish Locke's interest in the property, as U.S. Bank has made clear it wishes to do, the court must obtain personal jurisdiction over Locke. Absent waiver or a general appearance, U.S. Bank needed to effect proper service for the court to obtain personal jurisdiction.
¶ 21 The process server filed an affidavit stating he served Locke via substitute service at her usual place of abode. Locke then filed her affidavit, Alexander's, and Antwoine's, along with supporting evidence to rebut the process server's affidavit. In addition, U.S. Bank contends that Alexander made judicial admissions in pleadings that somehow prevents Locke from claiming she does not reside at the Bolingbrook property. The supplemental affidavits on file from Alexander and Antowine deny this claim. Under the circumstances, the circuit court must hold an evidentiary hearing and " 'hear the testimony, evaluate its credibility, and resolve any material conflicts in the evidence.' " TCA International, Inc., 299 Ill. App. 3d at 531-32 (quoting Stein v. Rio Parismina Lodge, 296 Ill. App. 3d 520 (1998)).
¶ 22 Accordingly, we reverse lower court's judgment denying the motion to quash service and remand for an evidentiary hearing where the court is to resolve the issues of fact.
¶ 23 III. CONCLUSION
¶ 24 For the foregoing reasons, we reverse the judgment of the circuit court of Will County and remand for further proceedings consistent with this order.
¶ 25 Reversed and remanded with directions.