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                              Appellate Court                            Date: 2016.01.11
                                                                         14:34:52 -06'00'




                  Arch Bay Holdings, LLC-Series 2010B v. Perez,
                            2015 IL App (2d) 141117



Appellate Court    ARCH BAY HOLDINGS, LLC-SERIES 2010B, Plaintiff-Appellee,
Caption            v. ISAIS PEREZ, MORTGAGE ELECTRONIC REGISTRATION
                   SYSTEMS, INC., as Nominee for WMC Mortgage Corporation,
                   UNKNOWN HEIRS AND LEGATEES OF MARIA E. ROMERO
                   DE PEREZ, UNKNOWN OWNERS, and NONRECORD
                   CLAIMANTS, Defendants (Marta E. Romero de Perez, Defendant-
                   Appellant).



District & No.     Second District
                   Docket No. 2-14-1117



Filed              November 23, 2015



Decision Under     Appeal from the Circuit Court of Du Page County, No. 10-CH-5969;
Review             the Hon. Robert G. Gibson, Judge, presiding.



Judgment           Reversed and remanded.




Counsel on         Matthew E. Gurvey, of Law Offices of Matthew E. Gurvey, P.C., of
Appeal             Chicago, for appellant.

                   Eleazar E. Calero, of Pierce & Associates, P.C., of Chicago, for
                   appellee.
     Panel                   JUSTICE HUDSON delivered the judgment of the court, with
                             opinion.
                             Justices Hutchinson and Zenoff concurred in the judgment and
                             opinion.




                                              OPINION


¶1         In this foreclosure action, defendant, Marta E. Romero de Perez, appeals the dismissal of
       her petition to quash service filed under section 2-1401 of the Code of Civil Procedure
       (Code) (735 ILCS 5/2-1401 (West 2012)). Plaintiff, Arch Bay Holdings, LLC-Series 2010B,
       failed to name defendant on the face of the summons, but it did name her on an attachment
       directing that she be served. Defendant contends that, because of the defect in the summons,
       the judgment of foreclosure against her is void. We reverse and remand.

¶2                                        I. BACKGROUND
¶3          On October 15, 2010, plaintiff filed a complaint for foreclosure against defendant, her
       husband Isais Perez, and other defendants. Three essentially identical summonses were
       issued. Each summons was on a form provided by Du Page County. The case caption on each
       listed “Isais Perez et al.” as defendants. A line on which names could be added was left
       blank. A second page attached to each summons directed that the summons be served on a
       list of defendants that included both defendant and Isais Perez at the same address. On
       October 20, 2010, defendant was served by substitute service on her daughter. She does not
       contend that she was not actually served.
¶4          Defendant never appeared. On September 10, 2013, an order of default was entered. Isais
       Perez then appeared. On January 14, 2014, the property was sold at a judicial sale, and an
       order approving the sale was entered on February 11, 2014. On July 31, 2014, defendant filed
       a section 2-1401 petition to quash service, alleging that the foreclosure judgment was void
       because the summons was defective on its face under Illinois Supreme Court Rule 101(d)
       (eff. May 30, 2008) in that it failed to name her as a defendant. On October 30, 2014, a
       hearing was held.
¶5          The trial court found that the summons was defective under Rule 101(d). The court
       discussed cases in which defects in a summons resulted in a lack of personal jurisdiction over
       a defendant. The court noted, however, that each of the cases presented distinguishing facts.
       Stating that this was an extremely close case, the court ultimately held that the objective of
       service of process was met and that the court should not elevate form over substance.
       Accordingly, the court dismissed the petition. Defendant appeals.



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¶6                                               II. ANALYSIS
¶7          Defendant contends that the summons was fatally defective and resulted in a lack of
       personal jurisdiction. Plaintiff contends that the summons was sufficient and that any defect
       did not deprive the court of jurisdiction.
¶8          Defendant raised the matter through a section 2-1401 petition. “Section 2-1401
       establishes a comprehensive, statutory procedure that allows for the vacatur of a final
       judgment older than 30 days.” People v. Vincent, 226 Ill. 2d 1, 7 (2007). The purpose of a
       section 2-1401 petition is to bring to the attention of the trial court facts that, if known at the
       time of judgment, would have precluded its entry. Paul v. Gerald Adelman & Associates, Ltd.,
       223 Ill. 2d 85, 94 (2006).
¶9          Typically, to be entitled to relief under 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 the defense or claim to the trial court in the original action;
       and (3) due diligence in filing the petition. Smith v. Airoom, Inc., 114 Ill. 2d 209, 220-21
       (1986). However, a judgment that is entered without personal jurisdiction over a party is void
       and can be attacked directly or collaterally at any time. Citimortgage, Inc. v. Cotton, 2012 IL
       App (1st) 102438, ¶ 13. Where a petitioner seeks to vacate a final judgment as void, the
       allegation of voidness “substitutes for and negates the need to allege a meritorious defense
       and due diligence.” Sarkissian v. Chicago Board of Education, 201 Ill. 2d 95, 104 (2002).
¶ 10        “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.” BAC
       Home Loans Servicing, LP v. Mitchell, 2014 IL 116311, ¶ 18. “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.” Schorsch v. Fireside Chrysler-Plymouth, Mazda, Inc., 172 Ill.
       App. 3d 993, 1001 (1988). Accordingly, a foreclosure judgment entered without service of
       process is void. Bank of New York Mellon v. Karbowski, 2014 IL App (1st) 130112, ¶ 12.
       Where a summons is invalid, service of the same is also without effect. Schorsch, 172 Ill.
       App. 3d at 1001.
¶ 11        In Illinois, the use of summons is governed by statute and supreme court rules. 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 2012).
¶ 12        Illinois Supreme Court Rule 101(a) (eff. May 30, 2008) provides for the form of the
       summons 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 ***.”
¶ 13        Rule 101(d) provides a sample form for the summons, stating that the summons shall be
       “substantially” in the form provided. Ill. S. Ct. R. 101(d) (eff. May 30, 2008). That form
       includes a caption that directs “naming all defendants.” Id. Illinois Supreme Court Rule


                                                    -3-
       131(c) (eff. Jan. 4, 2013), 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
       indication of other parties.” (Emphasis added.)
¶ 14        We have previously found that a summons issued in violation of the statute and the rules
       is void and results in a lack of personal jurisdiction over the defendant. In doing so, we
       specifically said that “[t]he procedures for issuance of summons set forth in section 2-201(a)
       and the supreme court rules must be adhered to in order to give the court personal jurisdiction
       over a defendant.” Schorsch, 172 Ill. App. 3d at 1001. Our supreme court has further stated
       that “a summons which does not name a person on its face and notify him to appear, is no
       summons at all, so far as the unnamed person is concerned.” Ohio Millers Mutual Insurance
       Co. v. Inter-Insurance Exchange of the Illinois Automobile Club, 367 Ill. 44, 56 (1937); see
       also Theodorakakis v. Kogut, 194 Ill. App. 3d 586, 588 (1990) (stating the same).
¶ 15        For example, in Ohio Millers Mutual, a summons that failed to name approximately
       3,000 people on its face was invalid. Ohio Millers Mutual, 367 Ill. at 56. In Schorsch, the
       summons was not issued, signed, or dated by the clerk of the court, and thus it was invalid.
       Schorsch, 172 Ill. App. 3d at 1001 (citing Ohio Millers Mutual, 367 Ill. at 56). In
       Theodorakakis, the summons was invalid when a trust was designated with the wrong
       number, even though the body of the complaint contained the correct number.
       Theodorakakis, 194 Ill. App. 3d at 589.
¶ 16        Here, the summons failed to name defendant on its face and thus under Ohio Millers
       Mutual was no summons at all. Plaintiff argues that the language of Rule 101(d) stating that
       the summons must substantially comply with the model form allows jurisdiction to attach
       upon substantial compliance. However, the model form requires that the names of all
       defendants appear in the caption. Here, defendant’s name appeared nowhere on the
       summons. While her name appeared in the attached list of defendants to be served, that was
       not directed to her. Instead, it was directed to the process server and thus was not part of the
       summons.
¶ 17        Plaintiff also notes that there is no dispute that defendant was actually served and that
       defendant was clearly named in the complaint. Relying on Charter Bank & Trust of Illinois v.
       Novak, 218 Ill. App. 3d 548 (1991), plaintiff then argues that the objectives of service of
       process were met.
¶ 18        In Novak, we held that the objectives of service of process are: (1) to notify the defendant
       of pending litigation and enable him to appear and defend and (2) to vest jurisdiction in the
       trial court. Id. at 552. Adhering to the rule that a court should not elevate form over
       substance, we held that the use of a form with incomplete time and date information was not
       a barrier to obtaining personal jurisdiction when, despite its failings, the summons adequately
       advised the defendant of what she needed to do to appear and defend. Id. at 552-53.
¶ 19        Here, the missing name from the face of the summons was a barrier to obtaining personal
       jurisdiction. Ohio Millers Mutual flatly holds that, for a summons to be valid, the defendants’
       names must appear on its face. Thus, precedent from our supreme court defeats the
       conclusion that the summons and the complaint may be considered in conjunction or that
       actual knowledge of the action through a flawed summons will vest the court with
       jurisdiction. To avoid confusion, jurisdictional rules are most functional when they are
       unambiguous and straightforward. Rule 101(a) requires that the summons “shall be directed

                                                   -4-
       to each defendant.” Ill. S. Ct. R. 101(a) (eff. May 30, 2008). Here, that was not the case, as
       the summons did not name defendant at all while the attachment that did name her was
       directed to the process server. As a result, the summons was invalid, and the court was
       without jurisdiction.

¶ 20                                     III. CONCLUSION
¶ 21      The summons was invalid in that it failed to include defendant’s name on its face.
       Accordingly, the judgment of the circuit court of Du Page County is reversed and the cause is
       remanded.

¶ 22      Reversed and remanded.




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