                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




        J.P. Morgan Mortgage Acquisition Corp. v. Straus, 2012 IL App (1st) 112401




Appellate Court            J.P. MORGAN MORTGAGE ACQUISITION CORPORATION,
Caption                    Plaintiff-Appellee, v. JOSEPH L. STRAUS a/k/a JOSEPH STRAUS,
                           ALICE JEAN STRAUS a/k/a ALICE STRAUS, and FIRST EAGLE
                           BANK, Defendants-Appellants.



District & No.             First District, Second Division
                           Docket No. 1-11-2401


Rule 23 Order filed        September 28, 2012
Rule 23 Order
withdrawn                  October 25, 2012
Opinion filed              October 30, 2012


Held                       Defendants’ motion to vacate the trial court’s entry of a judgment of
(Note: This syllabus       foreclosure and sale on the ground that notice to one defendant was
constitutes no part of     improper was properly denied, notwithstanding that defendant’s
the opinion of the court   contention that his counsel was not notified, since counsel did not seek
but has been prepared      leave of the court to file his appearance and plaintiff properly sent notice
by the Reporter of         to defendant, who was of record as appearing pro se.
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 09-CH-40063; the
Review                     Hon. Jesse G. Reyes, Judge, presiding.
Judgment                    Affirmed.


Counsel on                  Louis J. Manetti, Jr., of Codilis & Associates, P.C., of Burr Ridge, for
Appeal                      appellants.

                            David A. Novoselsky, of Novoselsky Law Offices, of Chicago, for
                            appellee.


Panel                       JUSTICE MURPHY1 delivered the judgment of the court with opinion.
                            Justices Quinn and Connors concurred in the judgment and opinion.



                                              OPINION

¶1          On October 19, 2009, the underlying complaint to foreclose mortgage was filed in the
        circuit court of Cook County by the original plaintiff, Credit Based Asset Servicing and
        Securitization, LLC. Defendant, Joseph Straus, filed his appearance and answer, pro se, on
        November 20, 2009. Counsel for defendants filed an additional appearance with the clerk of
        the circuit court on behalf of Joseph Straus on March 16, 2010, and on behalf of Alice Straus
        on October 25, 2010. Counsel’s additional appearances contained the following certification
        of service signed by counsel, “I certify that a copy of the within instrument was served on all
        parties who have appeared and have not heretofore been found by the Court to be in default
        for failure to plead.” On May 12, 2010, Credit Based Asset Servicing and Securitization
        LLC, moved to substitute J.P. Morgan Mortgage Acquisition Corp. (J.P. Morgan) as plaintiff
        because the mortgage had been assigned to J.P. Morgan, transferring all right, title and
        interest in the mortgage.
¶2          On May 12, 2010, J.P. Morgan filed motions: for summary judgment; for default
        judgment against Alice Straus and First Eagle Bank; to dismiss party defendant “unknown
        owners and nonrecord claimants”; and for judgment of foreclosure and sale. J.P. Morgan
        averred in the notices of motion that the notices and motions were served on Joseph Straus,
        Alice Straus, First Eagle Bank, and unknown owners via United States mail. On May 21,
        2010, the trial court entered orders granting plaintiff’s motions: to substitute J.P. Morgan as
        plaintiff; for default judgment against Alice Straus and First Eagle Bank; for summary
        judgment against Joseph Straus; and for a judgment for foreclosure and sale.


                1
                 Justice Michael J. Murphy, who originally authored this opinion, died after this decision
        was filed. Pursuant to Supreme Court Rule 23, Justices Quinn and Connors reviewed the motion to
        publish and agreed that this decision should be published. No changes have been made from the
        original Rule 23 order.

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¶3       Pursuant to the judgment for foreclosure and sale, a judicial sale was held on August 24,
     2010. On September 3, 2010, plaintiff filed a motion for an order approving the sale and
     distribution of the property. Notice was provided to defendants again by United States mail.
     At the October 25, 2010, hearing on the motion, the parties were represented by counsel. On
     that date, counsel for defendants filed and presented in open court an appearance on behalf
     of Alice Straus and a motion to quash service of process on behalf of Alice. Plaintiff
     withdrew its motion to confirm the sale of the property. On October 29, 2010, Joseph filed
     a motion to vacate and void the judgment of foreclosure and sale. Joseph argued that the
     judgment was void because his counsel met with plaintiff’s counsel prior to the March 26,
     2010, hearing and presented his March 26, 2010, additional appearance on behalf of Joseph.
     Joseph asserted that his counsel did not receive notice of any subsequent hearings in
     violation of Supreme Court Rule 11 (Ill. S. Ct. R. 11 (eff. Dec. 29, 2009)).
¶4       Plaintiff responded that it was not served with notice of counsel’s appearance and that
     counsel failed to properly seek leave of the trial court to file the appearance; therefore, it
     properly provided notice of its motions to defendants. In his response brief, Joseph asserted
     that “it is extraordinarily unusual for attorney Gertzman to file an Additional Appearance,
     mid-day, 35 minutes [to] a scheduled court hearing, and not deliver a copy of said
     Appearance to opposing counsel.” Joseph added:
              “It is so unbelievable that it remains extraordinarily coincidental that attorney
         Gertzman’s Additional Appearance was filed on March 16, 2010, mid-day, only 35
         minutes before the noticed 2:00 p.m. scheduled court hearing, but, however, Plaintiff’s
         counsel fails to recall receiving attorney Gertzman’s Additional Appearance. ***
         Apparently, Plaintiff’s counsel suggests that attorney Gertzman filed an Appearance 35
         minutes before a scheduled court hearing, became aware by telepathic waves that
         Plaintiff’s counsel was withdrawing Plaintiff’s Motion allegedly resulting in attorney
         Gertzman’s departure from the courthouse without serving a copy of said Appearance on
         Plaintiff’s counsel. Hogwash!!!”
¶5       After briefing the issue, a hearing was held on March 11, 2011. Plaintiff argued that it
     was never served with defense counsel’s appearance as required by Rule 11 and, furthermore,
     that counsel filed the appearance without leave of court. Joseph argued that counsel delivered
     a copy of the appearance to plaintiff’s counsel in open court on March 16, 2010. Joseph also
     argued that the rules do not require that a party seek leave to file an appearance. The trial
     court indicated that defendant’s exhibit attached to his motion, purportedly to demonstrate
     proof that counsel filed an appearance, was illegible and it could not be considered in support
     of defendant’s argument. Joseph’s counsel admitted the copy was illegible, but attached the
     exhibit because it was the best copy that could be made. However, counsel also argued that
     the docket for the case indicated that the appearance was filed and plaintiff should have
     reviewed the docket and provided notice.
¶6       The trial court continued the matter to May 18, 2011, when the motion was denied. The
     judicial sale was granted on July 18, 2011. Defendants filed a notice of appeal seeking
     vacature of the May 18, 2011, and July 18, 2011, orders. On appeal, defendants assert only
     a single issue. They contend that the trial court order denying the motion to vacate and void
     the judgment of the foreclosure sale was erroneous and all subsequent orders of the trial court

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       are void. Defendants note that this issue is a legal question and the standard of review is de
       novo. City of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191 (1998).
¶7          Defendants assert that defense counsel filed an appearance on behalf of Joseph Straus on
       March 26, 2010, prior to the date that plaintiff’s motions for default judgment and summary
       judgment were filed. Defendants contend that Joseph’s counsel’s appearance was served on
       plaintiff’s counsel the day it was filed. They argue that, pursuant to Rule 11(a), “[i]f a party
       is represented by an attorney of record, service shall be made upon the attorney,” and service
       was improper because it was not made on the attorney of record. Ill. S. Ct. R. 11(a) (eff. Dec.
       29, 2009). Defendants note that this mandatory language cannot be disregarded by the trial
       court.
¶8          Defendants also argue that plaintiff’s argument before the trial court that the appearance
       filed by defendant’s counsel was improper because leave of court had not been sought prior
       to filing the appearance must fail. Defendants note that this claim is contrary to the
       mandatory requirements of Supreme Court Rule 13(c)(1), which provides: “An attorney shall
       file his written appearance or other pleading before he addresses the court unless he is
       presenting a motion for leave to appear by intervention or otherwise.” Ill. S. Ct. R. 13(c)(1)
       (eff. Feb. 16, 2011). Accordingly, defendants argue, counsel’s appearance was properly filed
       and personally served on plaintiff’s counsel and that triggered the obligation to provide
       service only upon the attorney of record.
¶9          Defendants claim that it is axiomatic that plaintiff’s failure to provide notice to an
       attorney of record renders the orders that follow fatally defective. Defendants assert that such
       orders are void and a trial court errs when it refuses to vacate the orders. Defendants cite to
       Wilson v. Moore, 13 Ill. App. 3d 632 (1973), for “this long-standing and universally-accepted
       principle of Illinois law.” They contend that this principle is so ingrained in Illinois law that
       “there is no need to ‘chain cite’ ” cases as one could exceed the page limitation for an
       appellant’s brief by providing such a list of citations.
¶ 10        Counsel for appellants later apologize for “committing the Sin of Brevity or the
       corresponding Sin of Common Sense in presenting an argument which is quite brief,” but
       maintain that this issue is clear and does not require lengthy discussion. We appreciate the
       attempt to efficiently and succinctly state their case; unfortunately, we have not been
       provided sufficient legal analysis to support their argument. In a further disappointment, we
       are without the benefit of a reply brief to provide any explanation or discussion of this issue
       in response to plaintiff’s arguments.
¶ 11        Contrary to the above claims by defendants, our research does not find the principle
       discussed in Wilson to be so long-standing or universally accepted. We begin by noting that
       a judgment is void and may be collaterally attacked only where there is a total lack of either
       subject matter or personal jurisdiction in the court. Johnston v. City of Bloomington, 77 Ill.
       2d 108, 112 (1979). Where there is simply an erroneous judgment and the trial court is not
       divested of jurisdiction, an order is not void, but voidable. A voidable order is not subject to
       collateral attack, but only to direct appeal. In re Marriage of Mitchell, 181 Ill. 2d 169, 175
       (1998).
¶ 12        Furthermore, the trend of more recent authority favors the finality of judgments over


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       alleged defects in validity. Id. at 175-77 (citing Restatement (Second) of Judgments § 12
       (1982)). Statutory requirements that are even considered nonwaivable conditions raise
       concerns over the finality of judgments “ ‘[b]ecause of the disastrous consequences which
       follow when orders and judgments are allowed to be collaterally attacked, orders should be
       characterized as void only when no other alternative is possible.’ ” Belleville Toyota, Inc. v.
       Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d 325, 341 (2002) (quoting In re Marriage of
       Vernon, 253 Ill. App. 3d 783, 788 (1993)). The Belleville court added that given the plethora
       of justiciable matters created by the legislature, the concern regarding the finality of
       judgments is particularly acute. Id.
¶ 13       Not only does this concern weigh against defendants’ argument that the order is void, this
       court has not found the holding in Wilson axiomatic. Rather, this court found the decision
       in Wilson questionable considering our supreme court’s holdings that only orders entered by
       a court lacking jurisdiction over a party are void. See Mortimer v. River Oaks Toyota, Inc.,
       278 Ill. App. 3d 597, 602 (1996). In fact, as addressed in Mortimer, Supreme Court Rule
       104(d) clearly states “[f]ailure to deliver or serve copies as required by this rule ‘does not in
       any way impair the jurisdiction of the court over the person of any party,’ ” and a defect in
       service does not render the court’s holding void. Id. at 603 (quoting Ill. S. Ct. R. 104(d) (eff.
       Jan. 1, 1970)). Therefore, as there is no evidence that the trial court lacked jurisdiction over
       the parties or the matter to enter the order, we do not find the order void.
¶ 14       Accordingly, we now consider if the trial court’s order denying the motion to vacate was
       in error. We review a trial court’s denial of a motion to vacate for an abuse of discretion,
       meaning we must determine whether the ruling was a fair and just result, and not a denial of
       substantial justice. The moving party has the burden of establishing sufficient grounds for
       vacating the judgment. Standard Bank & Trust Co. v. Madonia, 2011 IL App (1st) 103516,
       ¶ 8. We will find that the trial court abused its discretion only if no reasonable person would
       take the view adopted by the trial court. In re Marriage of Schneider, 214 Ill. 2d 152, 173
       (2005). We do not find the trial court abused its discretion.
¶ 15       Defendants assert that Rule 13 requires that an appearance be filed before addressing the
       court and, therefore, leave is not required to file an appearance and the court should have
       vacated its order for failure to serve proper parties. However, as plaintiff’s analysis
       demonstrates, Rules 13 and 101 require that an appearance be filed within 30 days of receipt
       of service and a party must file such an appearance before addressing the court–unless
       presenting a motion for leave to appear by intervention or otherwise. Contrary to defendants’
       claims, which are made without reference to any authority in case law, this leads us to the
       conclusion that leave of court must be sought prior to filing an appearance after 30 days. In
       fact, a basic search of case law reveals that leave of court is regularly sought when an
       additional appearance is filed whether to replace an attorney or for a pro se defendant who
       has secured representation. This also comports with commonsense considerations for the
       efficient and proper administration of justice to assure the court and parties are properly
       apprised of the parties and their representation.
¶ 16       Furthermore, the trial court read the briefs and heard the arguments of counsel. The trial
       court weighed the credibility of the parties, reviewed the certificate of service and determined
       that Joseph’s counsel did not properly appear and put plaintiff on notice that he was

                                                 -5-
       representing Joseph and should receive notice. Beyond this, counsel at trial did not provide
       proper certification of service, failed to produce legible proof of service to the trial court, and
       only made broad, conclusory arguments that there was no other possible outcome but that
       plaintiff’s counsel was served. On appeal, defendants have not demonstrated any way that
       they were denied substantial justice in this case. Accordingly, the trial court did not abuse
       its discretion in finding that defendant did not properly file or serve his additional appearance
       and that plaintiff properly sent notice of its motions directly to Joseph, who was of record as
       appearing pro se. Therefore, the trial court properly denied the motion to vacate on the
       ground that notice was improper and we affirm.
¶ 17        For the foregoing reasons, the judgment of the trial court is affirmed.

¶ 18       Affirmed.




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