                                        2015 IL App (1st) 141272


                                                                              FIFTH DIVISION
                                                                              May 22, 2015


No. 1-14-1272


                                                                 )    Appeal from the
WELLS FARGO BANK, N.A.,                                          )    Circuit Court of
as Trustee,                                                      )    Cook County
                                                                 )
                 Plaintiff-Appellee,                             )
                                                                 )    No. 11 CH 40914
v.                                                               )
                                                                 )
PHILLIP SANDERS,                                                 )    Honorable
                                                                 )    Lisa A. Marino,
                 Defendant-Appellant.                            )    Judge Presiding.



        JUSTICE REYES delivered the judgment of the court, with opinion.
        Justice McBride concurred in the judgment and opinion.
        Justice Gordon dissented, with opinion.


                                             OPINION

¶1      Defendant Phillip Sanders appeals from the circuit court of Cook County's order

dismissing his petition brought pursuant to section 2-1401 of the Code of Civil Procedure (Code)

(735 ILCS 5/2-1401 (West 2012)). On appeal, defendant contends that: (1) his petition was not

ripe for adjudication under People v. Laugharn, 233 Ill. 2d 318 (2009); (2) the court lacked

personal jurisdiction to enter the judgment of foreclosure; and (3) the circuit court erred in

dismissing his petition on the merits. For the following reasons, we affirm the judgment of the

circuit court.

¶2                                      I. BACKGROUND
1-14-1272


¶3       This matter commenced as a mortgage foreclosure action pursuant to the Illinois

Mortgage Foreclosure Law (Foreclosure Law) (735 ILCS 5/15-1501 et seq. (West 2012)).

Plaintiff, Wells Fargo Bank, N.A., filed a complaint on November 30, 2011, alleging defendant

was in default in the amount of $148,682.71 for failing to pay his mortgage on the property

located at 9821 South Aberdeen Street in Chicago. On December 4, 2011, defendant was served

by substitute service on John Sanders at 6629 South Bishop Street in Chicago.

¶4       On May 8, 2012, plaintiff presented its motion for default judgment of foreclosure.

Defendant appeared in court and plaintiff withdrew its motion, as the circuit court granted

defendant 28 days to file his appearance and answer or otherwise plead. Defendant, however,

did not do so, and on July 24, 2012, a default judgment of foreclosure was entered by the circuit

court.

¶5       On August 23, 2012, defendant, through counsel, filed a "motion to reconsider and vacate

the prior judgment." The notice of motion provided in the record did not include a date when

defendant would present the motion nor did it indicate under which section of the Code the

motion was being brought. In addition, only two pages of this motion are contained in the record

on appeal; one includes the prayer for relief, the other consists of the attorney's verification.

According to the two-page document submitted, defendant requested the court to vacate the

default judgment on the basis that counsel was late to court the day the judgment was entered.

Defendant's counsel also requested leave to file his appearance and answer. Attached to

defendant's motion was a file stamped copy of the answer, which contained general denials along

with an assertion that plaintiff lacked standing and that defendant was not properly served with

summons. The record does not contain an order disposing of the motion. The record also does

not contain an order granting defense counsel leave to file his appearance or answer.



                                                  2
1-14-1272


¶6     On October 25, 2012, the property was sold to plaintiff as the highest bidder at the

judicial sale. Plaintiff presented its motion to confirm the sale. On November 27, 2012,

defendant contested the order approving the sale and the circuit court entered a briefing schedule

and set the matter for hearing on January 8, 2013. The hearing for the confirmation of the sale

was continued to March 15, 2013, to allow plaintiff time to file its reply. Thereafter, on March

15, 2013, the circuit court entered the order approving the sale. None of the briefs pertaining to

the confirmation of the sale are included in the record on appeal.

¶7     On April 1, 2013, defendant filed a "motion to reconsider and vacate the prior judgment

order" entered on March 15, 2013. Defense counsel asserted that on the morning of March 15,

2013, he was hospitalized as a result of an automobile accident and, therefore, did not appear in

court. Defendant requested "this court *** reconsider this matter and give the Defendant an

opportunity to present his motion; to vacate the judgment and save his home." The notice of

motion again failed to include a date when defendant would present the motion to reconsider.

¶8     However, on June 4, 2013, the circuit court entered an order continuing defendant's

motion to reconsider to July 17, 2013, due to the fact defendant failed to provide the court with a

courtesy copy of the motion. On July 17, 2013, defendant withdrew his motion to reconsider

with leave to refile. According to the record, defendant never refiled the motion to reconsider.

Thereafter, defendant filed numerous pro se motions; however, only defendant's section 2-1401

petition filed March 31, 2014, is pertinent to this appeal.

¶9     Defendant filed his section 2-1401 petition on March 31, 2014, with the aid of an

attorney. The petition sought vacatur of the default judgment of foreclosure and any orders

dependent on that order. It alleged that: (1) he did not receive service of process; (2) plaintiff

lacked standing; (3) the circuit court failed to rule on a pending motion in violation of section 2-



                                                  3
1-14-1272


1203 of the Code (735 ILCS 5/2-1203 (West 2012)); (4) there was a wrongful eviction; and (5)

the affidavit filed in support of the judgment of foreclosure was insufficient. The petition further

requested a preliminary injunction preventing his eviction from the property while the matter

was pending. The record does not demonstrate that the petition was ever scheduled to be

presented before the court; however, the circuit court's written memorandum indicates that the

matter was "styled as an 'emergency' motion and spindled on the Court's 10:00 default call on

April 15, 2014."

¶ 10   Attached to the petition was a notarized affidavit from defendant in which he averred that

since 2006 he had resided at 9821 South Aberdeen in Chicago with his wife and "other

relatives." The "house at 6629 S. Bishop in the city of Chicago belongs to my mother and no

one named John Sanders lives there." He further stated that in 2011 he hired an attorney to assist

in the foreclosure case, and on August 23, 2012, the attorney filed a motion to vacate the July 24,

2012 default order and that motion was never ruled upon. Defendant also attested that one of

Plaintiff's agents attempted to evict him and changed the locks at the property on February 19,

2014. Defendant in turn changed the locks back and continued to reside at the property.

¶ 11   The petition also included numerous exhibits including two service affidavits, one which

indicated defendant was served by substitute service on December 4, 2011, at 4:23 p.m. at

"Phillip Sanders's usual place of abode, 6629 S Bishop St , Chicago, IL 60636, with his/her

Brother, John Sanders, a person of his/her family, or other person residing there, over the age of

13 years who was informed of the contents of the Summons and Complaint To Foreclose

Mortgage."

¶ 12   No report of proceedings, bystanders report, or agreed statement of facts pertaining to the

hearing on this emergency motion was submitted to this court for our consideration. The circuit



                                                 4
1-14-1272


court, however, in its April 15, 2014, written order, asserted defendant's petition was either

denied or stricken for multiple reasons. First, the circuit court struck defendant's motion because

(1) the petition was filed on the improper call in violation of the "Mortgage Foreclosure

Courtroom Procedures" and (2) the petition was improperly served and plaintiff had not waived

its right to service. Second, the circuit court found that under U.S. Bank National Ass'n v.

Prabhakaran, 2013 IL App (1st) 111224, it lacked jurisdiction over the petition. Third, the

circuit court denied the petition on the merits because defendant waived any objection to

jurisdiction over his person 60 days after he participated in the cause of action pursuant to

section 15-1505.6(a)(ii) of the Foreclosure Law (735 ILCS 5/15-1505.6(a)(ii) (West 2012)) and

he failed to present "new facts" that were undiscoverable at the time of the original action.

¶ 13   Defendant filed the instant appeal on April 24, 2014.

¶ 14                                       II. ANALYSIS

¶ 15   On appeal, defendant argues the circuit court erred in denying his section 2-1401 petition

because: (1) it was not ripe for adjudication; (2) the judgment of foreclosure was void for lack of

personal jurisdiction; and (3) his petition had merit.

¶ 16   We review the dismissal of a section 2-1401 petition de novo. People v. Vincent, 226 Ill.

2d 1, 13 (2007). De novo consideration means we perform the same analysis that a circuit court

would perform. Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011). Section 2-1401

establishes a procedure for seeking relief from judgments more than 30 days after their entry.

735 ILCS 5/2-1401 (West 2012). Typically, to be entitled to relief pursuant to section 2-1401,

the petitioner must set forth specific factual allegations supporting: (1) the existence of a

meritorious defense or claim; (2) due diligence in presenting this defense or claim to the circuit

court in the original action; and (3) due diligence in filing the section 2-1401 petition for relief.



                                                   5
1-14-1272


Smith v. Airoom, Inc., 114 Ill. 2d 209, 220-21 (1986). The purpose of a section 2-1401 petition

is to bring facts to the attention of the circuit court which, if known at the time of judgment,

would have precluded its entry. Paul v. Gerald Adelman & Associates, Ltd., 223 Ill. 2d 85, 94

(2006). The petitioner has the burden of establishing these elements by a preponderance of the

evidence. Id. at 95.

¶ 17   In general, a section 2-1401 petition must be filed within two years of the entry of

judgment. 735 ILCS 5/2-1401(c) (West 2012). The two-year limitation period, however, does

not apply when the petitioner alleges the judgment is void. Sarkissian v. Chicago Board of

Education, 201 Ill. 2d 95, 103 (2002). Moreover, where a judgment is challenged on voidness

grounds there is no need for the petitioner to establish that it had acted with due diligence or to

allege that a meritorious defense existed. Id. at 105.

¶ 18   The filing of a section 2-1401 petition is considered a new proceeding, not a continuation

of the old one. 735 ILCS 5/2-1401(b) (West 2012). Accordingly, it follows that the respondent

may answer or move to dismiss the petition either under section 2-615 of the Code (735 ILCS

5/2-615 (West 2012)) for failure to state a claim or under section 2-619 of the Code (735 ILCS

5/2-619 (West 2012)) based on an affirmative defense. Blazyk v. Daman Express, Inc., 406 Ill.

App. 3d 203, 207 (2010). Thus, we turn to consider defendant's initial argument regarding

whether the section 2-1401 petition was ripe for adjudication.

¶ 19                           A. Whether the Petition Was Ripe for Adjudication

¶ 20   Defendant contends that the circuit court erred in denying his petition because it was

dismissed sua sponte before 30 days had lapsed as required by Laugharn. Defendant asserts that

because the circuit court dismissed the petition 15 days after it was filed, this court should

reverse and remand for further proceedings.



                                                  6
1-14-1272


¶ 21   Plaintiff responds, that Laugharn did not create a bright-line rule for vacating section 2-

1401 dismissals entered sua sponte prior to the statutory 30-day period. Plaintiff further asserts

that because there is no transcript of the hearing, stipulation, or bystander's report in the record

demonstrating whether the order was in fact entered sua sponte, we must therefore presume that

the dismissal was proper as it is defendant's burden to present a sufficiently complete record of

the proceedings to support his claims of error. Foutch v. O'Bryant, 99 Ill. 2d 389, 391-92 (1984).

¶ 22   In Laugharn, the defendant filed a section 2-1401 petition and nine days later, the circuit

court sua sponte dismissed the petition for being untimely. Laugharn, 233 Ill. 2d at 320-21. Our

supreme court held that dismissal of a section 2-1401 petition before the expiration of the 30-day

period to answer or otherwise plead was "premature" and required vacatur. Id. at 323. The court

reasoned that under Rule 105(a), the responding party must "file[] an answer or otherwise file[]

an appearance in the office of the clerk of the court within 30 days after service" (internal

quotation marks omitted) Id. Thus, because the defendant's section 2-1401 petition was

dismissed before the expiration of the 30-day period it "short-circuited the proceedings and

deprived the State of the time it was entitled to answer or otherwise plead." Id.

¶ 23   Plaintiff maintains that due to the lack of a record of proceedings, a stipulation, or a

bystander's report, defendant cannot demonstrate that the circuit court sua sponte dismissed his

petition. We note that the absence of a transcript does not preclude appellate review because

Supreme Court Rule 323 provides the appellant with a means to reconstruct an absent record. Ill.

S. Ct. R. 323 (eff. Dec. 13, 2005). Here, however, defendant has failed to reconstruct the record

with either a bystander's report or an agreed statement of facts filed by the parties. See id.

Defendant, as the appellant, bears the burden of providing a sufficiently complete record to

support his claim or claims of error, and in the absence of such a record on appeal, "it will be



                                                  7
1-14-1272


presumed that the order entered by the trial court was in conformity with law and had a sufficient

factual basis." Foutch v. O'Bryant, 99 Ill. 2d 389, 391-92 (1984). Moreover, any doubt arising

from the incompleteness of the record will be resolved against the appellant. Id. at 392.

¶ 24   Although the record contains the written memorandum issued by the circuit court

disposing of the section 2-1401 petition, without the transcripts or a bystander's report of the

April 15, 2014, hearing in this matter, we are unable to review the question of whether the circuit

court ruled on defendant's petition in contravention of Laugharn. See Corral v. Mervis

Industries, Inc., 217 Ill. 2d 144, 156-57 (2005) (an issue relating to a circuit court's factual

findings and basis for its legal conclusions obviously cannot be reviewed absent a report or

record of the proceedings). Since the burden is on defendant as appellant to provide a complete

record on appeal, we must presume that the circuit court properly considered defendant's section

2-1401 petition was ripe for adjudication. See Gowler v. Ferrell-Ross Co., 206 Ill. App. 3d 194,

213 (1990) ("A court of review is not obligated to search the record for evidence on which to

base reversal, and, unless reference is made to those parts of the record supporting reversal, the

argument will not be considered.").

¶ 25   In making this determination, we note that there is nothing in the record to support that

defendant's petition was ruled on sua sponte. A motion is considered to be ruled on sua sponte

when it is "[w]ithout prompting or suggestion; on its own motion" by the circuit court. Black's

Law Dictionary 1560 (9th ed. 2009). As discussed previously, however, defendant has failed to

provide us with a complete record, including this emergency motion, in order to fully consider

this issue. Therefore, we do not know the basis of the emergency or whether the petition was

attached to the emergency motion. Moreover, without a record of proceedings, we do not know

whether defendant requested leave to file the petition, a briefing schedule on the petition, or that



                                                   8
1-14-1272


the petition be considered on its face. The lack of a record on appeal accordingly precludes us

from being able to consider defendant's arguments. See Gowler, 206 Ill. App. 3d at 213.

¶ 26   Additionally, defendant argues in his appellate brief that the petition was served on

plaintiff's counsel by personal service. In support of this statement, defendant directs us to the

record containing the notice of filing of his section 2-1401 petition. The notice, however, does

not contain the proper proof of service as it does not contain the requisite signed section 1-109

certification and does not expressly identify upon which individual the petition was served.

There is no other evidence in the record that demonstrates plaintiff received service of the

section 2-1401 petition. Thus, the evidence defendant directs us to consider that the petition was

properly before the court is lacking and is yet another reason we decline to consider this

argument. Therefore, presuming the circuit court properly considered the petition was ripe for

adjudication, we turn to consider defendant's other arguments on appeal.

¶ 27                                   B. Lack of Personal Jurisdiction

¶ 28   Defendant next asserts the judgment of foreclosure is void for lack of personal

jurisdiction. Specifically, he contends that the circuit court lacked personal jurisdiction over him

as he was not properly served by substitute service. Defendant maintains he did not reside at the

address listed in the service affidavit at the time of service. In addition, he contends that John

Sanders did not reside at the property where he was served.

¶ 29   Plaintiff responds that the circuit court properly denied defendant's section 2-1401

petition because defendant's assertion that he was not properly served was time barred under

section 15-1505.6 of the Foreclosure Law (735 ILCS 5/15-1505.6 (West 2012)).

¶ 30   Section 15-1505.6 provides in relevant part:

               "(a) In any residential foreclosure action, the deadline for filing a motion to



                                                  9
1-14-1272


       dismiss the entire proceeding or to quash service of process that objects to the court's

       jurisdiction over the person, unless extended by the court for good cause shown, is 60

       days after the earlier of these events: (i) the date that the moving party filed an

       appearance; or (ii) the date that the moving party participated in a hearing without filing

       an appearance." Id.

Plaintiff argues that defendant participated in the May 8, 2012, hearing on the motion for default

judgment, thus, under section 15-1505.6, defendant was required to object to the circuit court's

jurisdiction within 60 days of that date. Id. Plaintiff concludes that defendant failed to meet this

deadline because he did not timely object to the court's jurisdiction until, at the earliest, August

23, 2012.

¶ 31   We agree that defendant failed to timely file his objection to the circuit court's

jurisdiction as provided in section 15-1505.6 of the Foreclosure Law. The record discloses that

on May 8, 2012, defendant appeared at the hearing on plaintiff's motion for default judgment and

the circuit court granted defendant 28 days to file his appearance and answer or otherwise plead.

As a result, plaintiff withdrew its motion. Defendant, however, did not file his answer, in which

he contested jurisdiction (as well as plaintiff's lack of standing), until August 23, 2012, more

than 60 days later. On appeal, defendant asserts that he was represented by counsel who did not

have an appearance on file at the time and, thus, counsel "had no standing." The May 8, 2012,

order, however, does not indicate whether defendant was or was not represented by counsel and

the record provided does not include a transcript of the proceedings or a bystander's report.

Thus, we have no record of the May 8, 2012, proceeding and are not informed by the record as to

who was present on defendant's behalf. We will not rely on defendant's bare assertion of what

occurred or who appeared at that proceeding. Because it is defendant's burden to provide us with



                                                 10
1-14-1272


a sufficiently complete record, any doubts arising from the absence of a record will be resolved

against him. Foutch, 99 Ill. 2d at 391-92. We conclude defendant waived jurisdiction when he

participated in the May 8, 2012, hearing and failed to contest the court's jurisdiction within the

60 days required by section 15-1505.6 of the Foreclosure Law. See BAC Home Loans Servicing,

LP v. Pieczonka, 2015 IL App (1st) 133128, ¶ 12. Thus, the circuit court did not err in

dismissing defendant's section 2-1401 petition on this basis.

¶ 32   Moreover, even if defendant had not violated the 60-day deadline, we find he still waived

his jurisdictional objection for two reasons. First, section 2-301 of the Code does not specifically

provide that a defendant may contest jurisdiction in an answer. 735 ILCS 5/2-301 (West 2012).

In fact, it expressly sets forth that a party may contest jurisdiction only "by filing a motion to

dismiss the entire proceeding or any cause of action involved in the proceeding or by filing a

motion to quash service of process" and that "[s]uch a motion may be made singly or included

with others in a combined motion, but the parts of a combined motion must be identified in the

manner described in Section 2-619.1." 735 ILCS 5/2-301(a) (West 2012).

¶ 33   Second, it is unclear from the two pages of defendant's "motion to reconsider and vacate

the prior judgment," which were included in the record on appeal, whether defendant contested

jurisdiction in that motion. From the limited record we do have, we can only discern that

defendant sought vacatur of the judgment because his attorney was not present in court when the

judgment of foreclosure was entered. As previously discussed, pursuant to section 2-301 of the

Code, objections to jurisdiction may be included in a motion to dismiss or by filing a motion to

quash service of process. 735 ILCS 5/2-301(a) (West 2012). Thus, "[i]f the objecting party files

a responsive pleading or a motion (other than a motion for an extension of time to answer or

otherwise appear) prior to the filing of a motion in compliance with subsection (a), that party



                                                  11
1-14-1272


waives all objections to the court's jurisdiction over the party's person." 735 ILCS 5/2-301(a-5)

(West 2012). Although we acknowledge that the character of a motion is determined by its

content and not its title or label (OneWest Bank, FSB v. Topor, 2013 IL App (1st) 120010, ¶ 15),

we cannot glean from the record provided whether defendant's "motion to reconsider and vacate

the prior judgment" constituted a proper motion contesting jurisdiction as required by section 2-

301 of the Code, as we do not have the entire contents of the motion included in the record.

Accordingly, where the record is incomplete "it will be presumed that the order entered by the

trial court was in conformity with law and had a sufficient factual basis." Foutch, 99 Ill. 2d at

391-92. For these reasons, we conclude that defendant waived his objection that the circuit court

lacked jurisdiction over his person.

¶ 34   Lastly, having concluded defendant waived his objection that the circuit court lacked

jurisdiction over his person, we decline to address defendant's other argument that the circuit

court erred when it found it did not have jurisdiction to hear his section 2-1401 petition relying

on Prabhakaran. We acknowledge, however, that unlike the facts in this case, the defendant in

Prabhakaran did not assert that the judgment was void for lack of personal jurisdiction.

Prabhakaran, 2013 IL App (1st) 111224, ¶ 30. As previously discussed, a void judgment may

be attacked at any time, even outside of the two years allowed under section 2-1401 of the Code.

Sarkissian, 201 Ill. 2d at 103.

¶ 35           C. Whether Defendant Was Entitled to Relief Under Section 2-1401

¶ 36   As previously discussed, to be entitled to relief pursuant to section 2-1401, the petitioner

must set forth specific factual allegations supporting: (1) the existence of a meritorious defense

or claim; (2) due diligence in presenting this defense or claim to the circuit court in the original

action; and (3) due diligence in filing the section 2-1401 petition for relief. Smith, 114 Ill. 2d at



                                                  12
1-14-1272


220-21. The purpose of a section 2-1401 petition is to bring facts to the attention of the circuit

court which, if known at the time of judgment, would have precluded its entry. Paul, 223 Ill. 2d

at 94. The petitioner has the burden of establishing these elements by a preponderance of the

evidence. Id. at 95. Where, as here, a trial court dismisses a section 2-1401 petition, or enters

judgment on the pleadings of said petition without holding an evidentiary hearing, the standard

of review to be applied is de novo. Cavalry Portfolio Services v. Rocha, 2012 IL App (1st)

111690, ¶ 9 (citing Vincent, 226 Ill. 2d at 14). De novo consideration means we perform the

same analysis that a circuit court would perform. Khan, 408 Ill. App. 3d at 578. Thus, we first

turn to consider whether defendant presented sufficient evidence to establish a meritorious

defense.

¶ 37                                    1. Meritorious Defense

¶ 38    On appeal, defendant asserts four defenses: (1) plaintiff lacked standing; (2) section 2-

1203 of the Code prohibited the circuit court from entering the order confirming the sale; (3) the

order of possession was void because plaintiff failed to name other occupants in a supplementary

petition or to initiate a forcible entry and detainer proceeding; and (4) plaintiff's affidavit in

support of the entry of a judgment of foreclosure was insufficient.

¶ 39    We first address whether defendant presented a meritorious defense that plaintiff lacked

standing. Defendant maintained plaintiff lacked standing in the answer filed on August 23,

2013. This affirmative defense, however, was asserted after the default judgment of foreclosure

was entered. Defendant's default resulted in his admission that plaintiff had standing. See

Mortgage Electronic Registration Systems, Inc. v. Barnes, 406 Ill. App. 3d 1, 6-7 (2010) (finding

the defendant failed to timely raise the standing issue and, as a result, forfeited it). Since

defendant forfeited the standing issue, we did not need to consider whether the plaintiff actually



                                                   13
1-14-1272


had standing. Nationwide Advantage Mortgage Co. v. Ortiz, 2012 IL App (1st) 112755, ¶ 26.

¶ 40   Defendant next asserts that the order approving the sale is void because section 2-1203 of

the Code prohibited its entry. Section 2-1203 of the Code provides in relevant part that in all

cases tried without a jury a party may, within 30 days after the entry of judgment file a motion to

vacate the judgment. 735 ILCS 5/2-1203 (West 2012). A properly filed section 2-1203 motion

will stay the enforcement of a judgment. Id. In this case, defendant filed a "motion to reconsider

and vacate the judgment" within 30 days of the entry of the default judgment of foreclosure. The

motion included in the record on appeal, however, contains only the last two pages of the

motion; the prayer for relief page and the verification page. Neither page indicates under which

section of the Code defendant seeks relief. Accordingly, based on the record presented, we do

not know whether defendant brought his motion under section 2-1203 of the Code or some other

provision of the Code, such as section 2-1301. As previously discussed, it is defendant's burden

as the appellant to provide a sufficiently complete record to support his claim of error, and in the

absence of such a record on appeal, it will be presumed that the order entered by the trial court

was in conformity with the law and had a sufficient factual basis. Foutch, 99 Ill. 2d at 391-92.

¶ 41   Defendant also maintains as a meritorious defense that "the order [for possession] and the

statute require[d] Plaintiff to name other occupants in a supplementary petition or in a forcible

proceeding. Plaintiff's attempt to enforce the order of possession is therefore both void as noted

above and not according to mortgage foreclosure procedures." Defendant cites no relevant

authority in support of this argument in violation of Illinois Supreme Court Rule 341(h)(7) (eff.

Feb. 6, 2013). This alone is reason to find defendant's argument forfeited. See Housing

Authority v. Lyles, 395 Ill. App. 3d 1036, 1040 (2009) (arguments that do not satisfy Rule 341 do

not merit consideration on appeal and may be rejected for that reason alone). In addition,



                                                 14
1-14-1272


defendant has failed to provide us with a record which demonstrates that plaintiff acted in

contravention of the Foreclosure Law. Here, plaintiff specifically named only defendant as an

occupant in the order of possession. As demonstrated by the record, this is due to the fact that

defendant signed the mortgage, note, or loan documents as an unmarried man. Further, we can

find no other individuals in the record who have an interest in the property that would require

them to be specifically named in the complaint. See 735 ILCS 5/15-1501(a) (West 2010).

Plaintiff also generally named "unknown owners and nonrecord claimants" as defendants in the

complaint and served them by publication. The interests of unknown owners and nonrecord

claimants were foreclosed in the default judgment of foreclosure. An order approving the sale

and an order of possession was entered against these unknown owners on March 15, 2013.

Under section 15-1701(h) of the Foreclosure Law, plaintiff may file a supplemental petition for

possession that specifically names additional occupants against whom possession is sought

during the 90 days after the entry of the order confirming the sale. 735 ILCS 5/15-1701(h)(1)

(West 2012). The record does not demonstrate that plaintiff sought to add any specifically

named individuals in a supplemental order of possession within those 90 days. Accordingly,

defendant has failed to demonstrate that plaintiff has acted in contravention of the Foreclosure

Law.

¶ 42   We also note that after 90 days, a plaintiff may file a cause of action pursuant to the

Forcible Entry and Detainer Act (735 ILCS 5/9-101 et seq. (West 2012)) against generically

named unknown owners. Fairbanks Capital v. Coleman, 352 Ill. App. 3d 550, 560 (2004). Any

information regarding such a cause of action as to the property at issue here is not included in the

record on appeal. Accordingly, defendant's argument that plaintiff failed to name the unknown

owners in a forcible action is unsupported by the record and, thus, forfeited. Foutch, 99 Ill. 2d at



                                                15
1-14-1272


391-92.

¶ 43   Lastly, defendant asserts that the affidavit plaintiff presented in support of its motion for

judgment of foreclosure was insufficient because the affiant lacked personal knowledge.

Defendant's argument on appeal is conclusory, as it does not explain exactly how the affiant

lacked personal knowledge, nor does it provide any citations to relevant authority in violation of

Rule 341(h)(7). Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013). Arguments that do not comply with

Rule 341(h)(7) do not merit consideration on appeal and may be rejected by this court for that

reason alone. See Lyles, 395 Ill. App. 3d at 1040. Because defendant failed to comply with Rule

341(h)(7), we conclude he has forfeited this issue on appeal.

¶ 44                                   2. Due Diligence

¶ 45   In order for a circuit court to grant a section 2-1401 petition, in addition to setting forth a

meritorious defense, a defendant must also assert that he was duly diligent: (1) in presenting this

defense or claim to the circuit court in the original action; and (2) in filing the section 2-1401

petition for relief. Smith, 114 Ill. 2d at 220-21. Even if defendant here had set forth a

meritorious defense by a preponderance of the evidence, he has failed to argue on appeal that he

was diligent in either manner. Additionally, defendant made no claim below that he was diligent

in discovering and presenting his defenses to the trial court in the original action or in filing his

section 2-1401 petition. In sum, defendant has failed to establish by a preponderance of the

evidence a meritorious defense and that he was duly diligent. Accordingly, we affirm the

judgment of the circuit court.

¶ 46                                   III. CONCLUSION

¶ 47   For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

¶ 48   Affirmed.



                                                  16
1-14-1272


¶ 49   JUSTICE GORDON, dissenting.

¶ 50   I must respectfully dissent. No transcript exists in the record on appeal of the court

proceedings of April 15, 2014, because there were no court proceedings. The petition was filed

on March 31, 2014. The record does not demonstrate that the petition was ever scheduled to be

presented to the trial court and neither lawyer in this case indicates that he or she was present for

a hearing; however, the trial court's four-page written memorandum indicates that the matter was

"styled as an 'emergency' motion and spindled on the Court's 10:00 default call on April 15,

2014." It would follow that the trial court sua sponte dismissed defendant's petition on the merits

and also struck defendant's petition based on his failure to follow the mortgage foreclosure

courtroom procedures and his improper service on plaintiff by first-class mail.

¶ 51   Our Illinois Supreme Court instructs us under People v. Laugharn, 233 Ill. 2d 318 (2009),

that a dismissal by the court of a section 2-1401 petition before the expiration of the 30-day

period to answer or otherwise plead is premature and requires vacatur. A section 2-1401 petition

is considered to be a new action and a dismissal before the expiration of the 30-day period

"short-circuit[s] the proceedings and deprive[s] the [opposing party] of the time it was entitled to

answer or otherwise plead." Laugharn, 233 Ill. 2d at 323. We realize that opposing counsel can

expressly represent to the court its waiver of the 30-day time period and consent to a sua sponte

decision on the merits, but opposing counsel in the case at bar does not argue that waiver

expressly occurred here and does not indicate that a hearing actually occurred. Defendant's

petition was not ripe for adjudication because it was ruled on 15 days after it was filed, and we

should decline to address the merits of the petition. I would reverse and remand for an

evidentiary hearing.




                                                 17
