                              Illinois Official Reports

                                      Appellate Court



                  U.S. Bank Trust, N.A. v. Colston, 2015 IL App (5th) 140100



Appellate Court          U.S. BANK TRUST, N.A., as Trustee for LSF8 Master Participation
Caption                  Trust, by Caliber Home Loans, Inc., Plaintiff-Appellee, v. EBBIE
                         COLSTON and ROBIN COLSTON, Defendants-Appellants.



District & No.           Fifth District
                         Docket No. 5-14-0100



Rule 23 order filed      June 10, 2015
Motion to publish
granted                  July 24, 2015
Opinion filed            July 24, 2015



Decision Under           Appeal from the Circuit Court of Clinton County, No. 06-CH-55; the
Review                   Hon. William J. Becker, Judge, presiding.



Judgment                 Affirmed.



Counsel on               Thomas G. Maag, of Maag Law Firm, LLC, of Wood River, for
Appeal                   appellants.

                         Louis J. Manetti, Jr., of Codilis & Associates, P.C., of Burr Ridge, for
                         appellee.
     Panel                    JUSTICE GOLDENHERSH delivered the judgment of the court, with
                              opinion.
                              Justices Stewart and Schwarm concurred in the judgment and opinion.


                                               OPINION

¶1         The instant case involves a default judgment entered in favor of plaintiff, U.S. Bank Trust,
       N.A., against defendants, Ebbie Colston and Robin Colston, on plaintiff’s complaint to
       foreclose mortgage. The original plaintiff was Household Finance Corporation III, but after
       judgment was entered, the subject loan was transferred to U.S. Bank Trust, N.A., as trustee for
       LSF8 Master Participation Trust, by Caliber Home Loans, Inc. This court granted a motion to
       substitute plaintiff, which was filed contemporaneously with plaintiff’s brief. Defendants
       appeal from an order of the circuit court of Clinton County denying their petition to vacate
       judgment under section 2-1401 of the Illinois Code of Civil Procedure (Code) (735 ILCS
       5/2-1401 (West 2012)). We affirm.

¶2                                           BACKGROUND
¶3         Defendants obtained a loan from plaintiff on September 28, 2000, which was secured by a
       mortgage. The mortgage contained a property description that did not include a house.
       However, a September 17, 2000, appraisal of the property that was to be secured by the
       mortgage lists the property as a “1½” story house with a “detached” garage that sits on “5
       acres.” On January 29, 2006, defendants obtained a separate parcel of property near the
       property they mortgaged in 2000. This parcel of land contained a house. On August 26, 2006,
       the original plaintiff, Household Finance Corporation III, filed a complaint to foreclose
       mortgage. The complaint listed a legal description of the property and a tax parcel number, as
       well as a common description of the property, which was “10120 State Rt. 161 Bartelso, IL
       62218.” On November 8, 2006, a default judgment was entered against defendants.
¶4         On August 31, 2007, defendants filed a motion to continue sale date in which they alleged
       that they and their son and his fiancée lived at the property in question. On September 4, 2007,
       defendants filed a suggestion of bankruptcy and argued the automatic stay prevented further
       proceedings in the case. Defendants attached their notice of bankruptcy filing, which listed
       their address as “10120 State Rt. 161 Bartelso, IL 62218.” On June 30, 2009, defendants filed a
       petition to vacate judgment in which they claimed they were never served and lived in Florida
       during the time of service. On December 21, 2009, the petition to vacate was granted.
¶5         On August 11, 2010, defendants’ bankruptcy was dismissed. Thereafter, the trial court
       granted plaintiff leave to file an amended complaint to add three reformation counts. On
       November 16, 2011, plaintiff filed an amended complaint to foreclose mortgage. Count II of
       the complaint alleged the note and mortgage executed in September 2000 intended to secure a
       single-family residence, not a vacant lot, and sought reformation of the subject mortgage to
       include the parcel meant to be encumbered. Count III sought an equitable lien, and count IV
       sought foreclosure of the equitable lien.
¶6         On February 2, 2012, the trial court granted plaintiff leave to file a second amended
       complaint to foreclose mortgage and to correct the default date and unpaid balance due


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       allegations. On February 29, 2012, plaintiff filed an affidavit of service by publication.
       Publication service ran from March 7, 2012, to March 21, 2012. On June 12, 2012, plaintiff
       filed a motion for service by special order of the court in which plaintiff reported it was unable
       to serve defendants at the subject property, so it served defendants by publication. Defense
       counsel later provided plaintiff with defendants’ purported home address, 1012 Beech Street,
       Highland, Illinois. Plaintiff was also unable to locate defendants at the Highland address.
¶7         On June 12, 2012, plaintiff filed a motion with the trial court, seeking leave to serve
       defendants by sending a copy of the complaint and summons via courier to defendants’
       attorney’s office. On June 18, 2012, the trial court granted plaintiff leave to serve defendants
       through their attorney of record at his office.
¶8         On November 20, 2012, plaintiff filed a motion seeking to reform the mortgage to include
       the property acquired by defendants in 2006. On November 26, 2012, a judgment for
       foreclosure and sale, default judgment, and an order reforming the subject mortgage were
       entered in plaintiff’s favor. The judgment for foreclosure and sale contained the language,
       “This is a final and appealable order and there is no just cause for delaying enforcement of this
       judgment or appeal therefrom.” Also, on November 26, 2012, plaintiff, through its attorney,
       Elaine Adams, filed an unverified affidavit with the trial court stating that defendants had been
       served by certified mail on September 7, 2012, and by publication on March 7, 2012.
¶9         On December 21, 2012, defendants filed a motion to vacate in which they claimed they
       were not personally served and they did not authorize their attorney to accept service on their
       behalf. On January 30, 2013, plaintiff filed a response in which it argued that it utilized two
       methods of service: (1) publication, after attempting to serve defendants nine times at the
       subject property, and (2) via defendants’ attorney after receiving leave of the court to do so.
       Plaintiff also noted it attempted to serve defendants eight times at 1012 Beech Street, the
       address provided by defendants’ attorney. On February 25, 2013, defendants’ motion to vacate
       was denied.
¶ 10       On April 15, 2013, the trial court continued the matter until July 29, 2013, after defendants
       represented they were in an active bankruptcy. On July 29, 2013, the matter was continued
       until January 27, 2014. On September 27, 2013, defendants filed the instant petition to vacate
       judgment pursuant to section 2-1401 of the Code. In the petition, defendants again asserted
       they were never served and also asserted the mortgage should not have been reformed.
¶ 11       On November 8, 2013, plaintiff filed a motion to dismiss defendants’ petition, arguing it
       was a subsequent and repetitious postjudgment motion, defendants had, in fact, been served
       via two methods, publication and alternative service through their attorney, and the
       reformation challenge was without merit because defendants admitted on their bankruptcy
       schedules that the subject loan encumbered real property which included a multistory brick
       home and garage. On November 25, 2013, defendants filed a reply in which they claimed the
       prior petition to vacate was never actually filed, so the September 2013 petition was not a
       successive challenge. Defendants also argued plaintiff lacked standing to foreclose. On March
       3, 2014, the trial court denied defendants’ petition. Defendants now appeal.

¶ 12                                          ANALYSIS
¶ 13       The issue on appeal is whether the trial court erred in denying defendants’ section 2-1401
       petition to vacate judgment. We review a trial court’s ruling on a section 2-1401 proceeding
       de novo. MB Financial Bank, N.A. v. Ted & Paul, LLC, 2013 IL App (1st) 122077, ¶ 12, 990

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       N.E.2d 764. Defendants argue the trial court erred in denying their petition to vacate because:
       (1) they were not legally served, (2) there was a scrivener’s error in the original mortgage’s
       property description, and plaintiff should not be allowed to foreclose on property not listed in
       the original mortgage, and (3) plaintiff lacked standing to bring this action. We are
       unconvinced by defendants’ arguments.

¶ 14                                             I. SERVICE
¶ 15       The purpose of service is twofold: (1) it gives notice to those whose rights are about to be
       affected by the plaintiff’s action; and (2) it vests jurisdiction in the court over the person whose
       rights are to be affected by the litigation. Bell Federal Savings & Loan Ass’n v. Horton, 59 Ill.
       App. 3d 923, 926, 376 N.E.2d 1029, 1032 (1978). A defendant is entitled to receive the best
       possible notice of the pending litigation, and it is only when personal service fails that
       substituted or constructive service is permitted. Horton, 59 Ill. App. 3d at 927, 376 N.E.2d at
       1032.
¶ 16       Section 2-206 of the Code governs service by publication and requires a party seeking
       service by publication to file an affidavit stating that the person to be served “on due inquiry
       cannot be found.” 735 ILCS 5/2-206(a) (West 2010). Publication must then be made in a
       newspaper published in the county in which the action is pending. 735 ILCS 5/2-206(a) (West
       2010). Within 10 days of the first publication of the notice, the clerk must send a copy of the
       publication by mail to each defendant whose place of residence is stated in the affidavit. 735
       ILCS 5/2-206(a) (West 2010).
¶ 17       In the instant case, the process server filed an affidavit in which he asserted he used due
       diligence, but was unable to personally serve the defendants at 10120 State Route 161 in
       Bartelso after nine attempts as follows:
               “NON-SERVICE after due search, careful inquiry and diligent attempts at the
               address(es) listed above, I have been unable to effect process upon the person/entity
               being served because of the following reason(s): Numerous attempts were made at this
               address. Notes were left at this residence and were removed, this residence is clearly
               occupied. On attempt made on 12/8/11, when I pulled into the drive of the residence the
               front door was open and the living room area light was on. As I got out of my vehicle
               the front door closed and the lights went off. Knocked on all doors received no answer.
               The following vehicles were at the residence. Red BMW [I]llinois registration
               K882361. Green [F]ord Explorer [I]llinois registration A239797, Maroon [F]ord F150
               [I]llinois registration 1026771, the [F]ord [F]150 was pulling a trailer with a
               motorcycle on it with [I]llinois registration AS2531, and a Red [F]ord [M]ustang with
               [I]llinois registration L145670. On attempt made on 12/11/11 as I pulled into the
               driveway I observed a white male in shorts, no shoes, and a tank top reaching inside the
               red BMW. I waved to the white male who waved back then he turned around and
               walked inside the residence and shut the door. When I knocked on the door he refused
               to answer.”
       The affidavit also noted that two of the cars described above were registered to defendant
       Ebbie Colston.
¶ 18       Publication ran from March 7, 2012, to March 21, 2012. Defense counsel later provided
       plaintiff with defendants’ purported address in Highland, Illinois. Plaintiff unsuccessfully
       attempted to serve defendants at the Highland address eight times from March 16, 2012, until

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       April 4, 2012, from as early as 11:17 a.m. to as late as 9:01 p.m. We agree with plaintiff that its
       subsequent search for defendants at an address provided by defense counsel shows that
       defendants could not have been found upon further inquiry and, thus, service by publication
       was proper.
¶ 19        Defendants assert, however, that because they were unable to find any evidence in the
       record of a certificate indicating that the clerk sent a copy of the publication to defendants,
       plaintiff did not strictly comply with section 2-206 of the Code, and the trial court lacked
       jurisdiction over defendants. We disagree.
¶ 20        First, we note that defendants failed to raise this argument below. Arguments not raised in
       the trial court are generally waived on appeal. Illinois Tool Works, Inc. v. Independent
       Machine Corp., 345 Ill. App. 3d 645, 652-53, 802 N.E.2d 1228, 1234 (2003). Second,
       defendants waived their personal jurisdictional objections by participating in the case and
       failing to file a motion to quash within 60 days.
¶ 21   On August 12, 2011, our General Assembly enacted a new law for objecting to personal
       jurisdiction in the context of residential foreclosure proceedings. 735 ILCS 5/15-1505.6 (West
       2012). It provides as follows:
                     “(a) In any residential foreclosure action, the deadline for filing a motion to 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.
                     (b) In any residential foreclosure action, if 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 waives all objections to the court’s jurisdiction over the party’s person.” 735
                ILCS 5/15-1505.6 (West 2012).
       Section 15-1505.6 applies retroactively. GreenPoint Mortgage Funding, Inc. v. Poniewozik,
       2014 IL App (1st) 132864, 23 N.E.3d 525. Defendants assert that this section does not apply
       and that plaintiff’s contention that it does is “farcical” and “nonsensical.” We disagree.
¶ 22        The record before us is replete with evidence that defendants knew about this case,
       participated in it, and made every attempt to dodge service. For example, on August 31, 2007,
       defendants filed a motion to continue sale in the first proceeding. They also filed a suggestion
       of bankruptcy, asking the proceedings be stayed, and they filed a petition to vacate judgment
       on June 30, 2009, which was granted. On April 15, 2013, the case was continued until July 29,
       2013, after defendants represented they were again in active bankruptcy. Defendants also
       challenged plaintiff’s standing below.
¶ 23        The egregious conduct on the part of defendants shows why section 15-1505.6 of the Code
       was enacted. Defendants participated in the case and obtained relief from the circuit court on
       December 21, 2009. Defendants were represented by an attorney in the matter and knew a
       mortgage foreclosure action was pending against them again. Nevertheless, defendants sought
       to challenge personal jurisdiction in their motions filed on December 21, 2012, and the instant
       motion filed on September 27, 2013. We agree with plaintiff that challenges to personal
       jurisdiction three years after active participation in a case are precisely the type of motion


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       practice section 15-1505.6 of the Code was enacted to prevent. Accordingly, we find the trial
       court did not err in finding personal jurisdiction.

¶ 24                                          II. REFORMATION
¶ 25        Defendants’ second argument is that the trial court improperly allowed reformation of the
       subject mortgage on the grounds of mutual mistake. Defendants assert the mortgage as issued
       in the year 2000 mortgaged property defendants actually owned in the year 2000, and the
       property plaintiff seeks to foreclose on was not even acquired by defendants until January
       2006. Defendants insist what is before this court is not a mutual mistake or a scrivener’s error,
       but a unilateral mistake on plaintiff’s part. We disagree.
¶ 26        A written instrument is presumed to express the parties’ intent and will not be reformed
       absent the evidence of mutual mistake or another ground for reformation. Farmer City State
       Bank v. Guingrich, 139 Ill. App. 3d 416, 427, 487 N.E.2d 758, 765 (1985). The party seeking
       reformation must show the written instruments to be reformed do not reflect the parties’
       intended bargain because of the parties’ mutual mistake. Marengo Federal Savings & Loan
       Ass’n v. First National Bank of Woodstock, 172 Ill. App. 3d 859, 863, 527 N.E.2d 121, 123
       (1988). Reformation will be allowed where evidence is clear and convincing. Marengo, 172
       Ill. App. 3d at 863, 527 N.E.2d at 124.
¶ 27        In the instant case, the original lender clearly botched the legal description of the property.
       However, an appraisal, dated September 17, 2000, shows the property defendants intended to
       purchase included a house with a detached garage on five acres. That it was defendants’ intent
       to encumber five acres with a house through its original mortgage in 2000 is further
       substantiated by their bankruptcy schedules in which they described the property as a
       two-story brick and vinyl home on five acres. Thus, we agree with the trial court that the legal
       description contained in the first mortgage was the result of the mutual mistake of the parties
       and find no error in the trial court’s November 26, 2012, order reforming the subject mortgage.

¶ 28                                          III. STANDING
¶ 29       The final argument raised by defendants on appeal is that plaintiff lacked standing to
       foreclose on the subject mortgage. We disagree.
¶ 30       Standing is an affirmative defense, and, as such, the burden is on the defendant to prove the
       plaintiff does not have standing rather than the plaintiff’s burden to prove it does have
       standing. Parkway Bank & Trust Co. v. Korzen, 2013 IL App (1st) 130380, ¶ 24, 2 N.E.3d
       1052. A copy of the note attached to the complaint is prima facie evidence that the plaintiff
       owns the note. Korzen, 2013 IL App (1st) 130380, ¶ 24, 2 N.E.3d 1052. Additionally, section
       2-407 of the Code specifically provides:
               “No action shall be dismissed for misjoinder of parties, or dismissed for nonjoinder of
               necessary parties without first affording reasonable opportunity to add them as parties.
               New parties may be added and parties misjoined may be dropped by order of the court,
               at any stage of the cause, before or after judgment, as the ends of justice may require
               and on terms which the court may fix.” 735 ILCS 5/2-407 (West 2012).
       In the instant case, the note attached to the second amended complaint is prima facie evidence
       of standing, and the record shows the proper party was later substituted.



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¶ 31       The note attached to both the first and second amended complaints contains an
       endorsement from the original lender, Household Finance Corporation III, stating: “Pay to the
       Order of WITHOUT RECOURSE HOUSEHOLD FINANCE CORPORATION III.” On
       November 26, 2012, judgment of foreclosure and sale was entered in plaintiff’s favor. Almost
       a year later, on November 19, 2013, the bankruptcy court was notified of a transfer of interest
       thereby showing that Household Finance Corporation III was the appropriate plaintiff initially.
       Thereafter, the subject loan was transferred to U.S. Bank Trust, N.A., and this court granted the
       motion to substitute U.S. Bank Trust, N.A., as plaintiff. Accordingly, plaintiff has standing.

¶ 32                                         CONCLUSION
¶ 33       After careful consideration, we find defendants’ appeal meritless. While we acknowledge
       the original lender could have simplified this matter by providing the proper legal description
       of the property, we nevertheless believe reformation was appropriate under the circumstances
       presented here. We also find that plaintiff has standing to bring this action. Finally, the record
       clearly shows defendants repeatedly dodged service and continue to make every attempt to
       delay resolution of this mortgage foreclosure case; however, their day of reckoning is fast
       approaching.
¶ 34       For the foregoing reasons, we find the trial court did not err in denying defendants’ section
       2-1401 petition to vacate judgment, and we hereby affirm the judgment of the circuit court of
       Clinton County.

¶ 35      Affirmed.




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