                                      2018 IL App (1st) 172912

                                            No. 1-17-2912

                                    Opinion filed November 7, 2018 

                                                                       Third Division
     ______________________________________________________________________________

                                               IN THE

                                 APPELLATE COURT OF ILLINOIS

                                          FIRST DISTRICT

     ______________________________________________________________________________

     WELLS FARGO BANK, NATIONAL                ) Appeal from the Circuit Court

     ASSOCIATION, as Trustee for First Franklin) of Cook County.

     Mortgage Loan Trust 2004-FF46 Mortgage    )

     Pass-Through Certificates, Series 2004-FF46,
                                               )

                                               ) No. 15 CH 13773
           Plaintiff-Appellee,                 )
                                               ) The Honorable
     v.                                        ) Michael F. Otto,
                                               ) Judge Presiding.

     DONNA ROUNDTREE, UNKNOWN OWNERS, ) 

     and NONRECORD CLAIMANTS                   )

                                               )

           Defendants                          )

                                               )

     (Donna Roundtree, Defendant-Appellant).   )

     ______________________________________________________________________________

                   PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the

                   court, with opinion. 

                   Justices Howse and Cobbs concurred in the judgment and opinion.



                                                OPINION

¶1          Following the Cook County circuit court’s entry of an order approving sale of certain

        foreclosed property, defendant-appellant Donna Roundtree filed a petition to vacate that

        order, asserting that service had been improper. Upon a motion filed by plaintiff-appellee

        Wells Fargo Bank, National Association, as trustee for First Franklin Mortgage Loan Trust
     No. 1-17-2912


        2004-FF46 Mortgage Pass-Through Certificates, Series 2004-FF46, the trial court dismissed

        defendant’s petition. Defendant appeals, contending that the trial court erred in finding that

        she retroactively waived her objection to jurisdiction and insisting that the void judgment of

        default underlying this cause cannot stand. She asks that we reverse the trial court’s dismissal

        and remand for further proceedings. For the following reasons, we affirm.

¶2                                            BACKGROUND

¶3          In September 2015, plaintiff instituted a foreclosure action against defendant regarding

        property for which she had signed a mortgage and note. Plaintiff served defendant via

        substitute service at the property. Its process server noted in his affidavit that he left a copy of

        the process envelope containing the summons and complaint with Leroy Jones, defendant’s

        boyfriend who lived at the property. The process server confirmed defendant resided at the

        property; he advised Jones of the contents of the envelope, he included a physical description

        of Jones, and he mailed a copy of the summons and complaint in a sealed envelope to

        defendant at the property. The process server described Jones as 50 years old, African

        American, approximately 5 feet, 7 inches tall, approximately 176-200 pounds, black hair, and

        no glasses.

¶4          In March 2016, with defendant having never responded to the summons or complaint,

        plaintiff moved for default judgment and entry of judgment of foreclosure and sale. Plaintiff

        mailed a copy of its motion to defendant at the property. The trial court held a hearing, at

        which defendant did not appear, and granted plaintiff’s motions; it entered an order of default

        judgment against defendant and a judgment of foreclosure and sale of the property. Plaintiff

        mailed a copy of the notice of entry of default judgment to defendant at the property, and a




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     No. 1-17-2912


        sales officer mailed a notice of the sale to defendant at the property. A public sale was

        conducted as noticed and scheduled, and plaintiff was the highest bidder.

¶5          In July 2016, plaintiff filed a motion to approve the sale and for a personal deficiency

        judgment against defendant and again mailed a copy of this to defendant at the property. On

        August 23, 2016, plaintiff presented this motion before the trial court. An attorney for

        defendant appeared at the hearing and asked the trial court to set a briefing schedule; the trial

        court did so, and counsel for defendant prepared a written order outlining that schedule.

        Additionally, on August 29, 2016, counsel filed an appearance on defendant’s behalf with the

        trial court.

¶6          On September 27, 2016, the trial court held a hearing on plaintiff’s motion to approve

        sale. Defendant did not respond to the motion and did not appear in court. The trial court

        granted plaintiff’s motion and entered an order approving sale of the property.

¶7          On February 14, 2017, defendant filed a “Motion to Quash or in the Alternative Motion

        to Vacate Pursuant to § 2-1401 Petition.” See 735 ILCS 5/2-1401 (West 2016). Her principal

        assertion was that plaintiff had not effectuated proper substitute service on her and,

        accordingly, the underlying default judgment against her was void, rendering the foreclosure

        and sale of the property void. Plaintiff moved to dismiss the petition. On July 11, 2017, the

        trial court granted dismissal of the petition based on a “lack of jurisdiction,” noting that

        defendant had failed to properly serve plaintiff with her petition.

¶8          On the same day, defendant refiled her petition containing the same assertions and

        included her affidavit as well as one from Jones. In his affidavit, Jones attested that he is

        defendant’s ex-husband and lives with defendant and their daughter at the property. He stated

        that he was not served with any documents on her behalf but did not deny being at the


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          property on the day the process server attested he served him. Jones further averred that he is

          68 years old, six feet tall, approximately 230 pounds and has “salt and pepper” hair. He also

          attached a copy of his driver’s license, which listed Jones as six feet tall and 210 pounds. In

          her affidavit, defendant attested that she was out of the country at the time of the attempted

          service on her, and she averred that no one living at the property matches the description

          given by the process server.

¶9           Plaintiff again moved to dismiss defendant’s petition, arguing that section 15-1505.6(a)

          of the Illinois Mortgage Foreclosure Law (Foreclosure Law) (735 ILCS 5/15-1505.6(a)

          (West 2016)), which allows a party 60 days from counsel’s appearance on her behalf within

          which to file a motion to quash service, rendered defendant’s petition untimely. The trial

          court agreed with plaintiff, citing GreenPoint Mortgage Funding, Inc. v. Poniewozik, 2014

          IL App (1st) 132864, and holding that section 15-1505.6(a) barred defendant from attacking

          service. Accordingly, the court granted plaintiff’s motion and dismissed defendant’s petition.

¶ 10                                             ANALYSIS

¶ 11         On appeal, defendant contends that the trial court erred in dismissing her petition. She

          asserts that, because the default judgment underlying the foreclosure was entered before

          counsel made any appearance on her behalf, she did not waive any jurisdictional challenge to

          that judgment. She claims that, instead, any waiver would have been prospective from her

          appearance, and not retroactive to the default judgment. And she ultimately insists that the

          timing of her counsel’s appearance is irrelevant because, regardless of any participation in

          these proceedings, this would not waive her objection to service since void judgments may

          be attacked at any time. Plaintiff, meanwhile, contends that defendant’s section 2-1401

          petition was time-barred because section 15-1505.6(a) of the Foreclosure Law precluded her


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       No. 1-17-2912


          from raising her challenge to the trial court’s personal jurisdiction more than 60 days after

          she appeared in court. In resolving this issue, we are called to examine the applicability of

          section 15-1505.6(a) to the circumstances presented here, which, the parties agree, comprises

          a question of law subject to de novo review. See GreenPoint Mortgage, 2014 IL App (1st)

          132864, ¶ 11. Additionally, we note that we likewise review dismissals of section 2-1401

          petitions de novo. See Wells Fargo Bank, N.A. v. Sanders, 2015 IL App (1st) 141272, ¶ 16.

¶ 12         Upon our review and based on the record before us, we disagree with defendant’s

          contentions on appeal. Instead, we find that her section 2-1401 petition was time-barred by

          section 15-1505.6(a) of the Foreclosure Law and, therefore, it was properly dismissed.

¶ 13         Section 15-1505.6(a) of the Foreclosure Law provides that, in a residential mortgage

          foreclosure proceeding, when a party moves to dismiss the cause or to quash service of

          process on the ground that the trial court lacked personal jurisdiction over her, she must do so

          within 60 days of either the date she first files an appearance or the date she first participates

          in a hearing without filing an appearance, whichever of these is earlier. See 735 ILCS 5/15­

          1505.6(a) (West 2016); see also GreenPoint Mortgage, 2014 IL App (1st) 132864, ¶ 1

          (section 15-1505.6 “requires that a motion to quash service of process in a residential

          foreclosure action must be brought within 60 days of the date that the moving party files an

          appearance or participates in a hearing without filing an appearance, unless the court grants

          an extension for good cause”). In other words, in the context of a residential foreclosure

          action, the moment a party files her appearance or even simply participates in any hearing, a

          60-day clock begins to run, within which time she must object to personal jurisdiction. See

          735 ILCS 5/15-1505.6(a) (West 2016). The failure to do so results in the waiver of any

          objection to personal jurisdiction. See GreenPoint Mortgage, 2014 IL App (1st) 132864, ¶ 24


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          (“it is not the appearance itself that results in waiving the objection to personal jurisdiction. It

          is waiting more than 60 days after appearing or participating in a hearing that causes

          waiver”). Thus, once the 60-day clock expires, she may no longer challenge personal

          jurisdiction. See 735 ILCS 5/15-1505.6(a) (West 2016); GreenPoint Mortgage, 2014 IL App

          (1st) 132864, ¶ 16 (the reason for the enactment of this strict requirement in foreclosure law

          was the concern over unreasonable delays in these particular cases and the desire to limit the

          ability to file motions to quash service, which comprises the pretext for the delays).

¶ 14          In the instant cause, it is undeniable that section 15-1505.6(a)’s personal jurisdiction

          procedural rule applies. First, there is no dispute that this cause lies within the context of a

          residential mortgage foreclosure action. It was never argued that the property in question

          was, indeed, defendant’s residence; both her affidavit and that of Jones confirm that

          defendant lived at the property. Moreover, it does not matter that defendant brought her claim

          of insufficient service of process pursuant to section 2-1401; this is simply the vehicle she

          used to raise her argument after judgment in this cause was entered. Section 15-1505.6

          applies equally to a personal jurisdiction challenge asserted in a section 2-1401 postjudgment

          petition as it would to a personal jurisdiction challenge asserted during the pendency of the

          case prior to final judgment. See GreenPoint Mortgage, 2014 IL App (1st) 132864, ¶ 24. We

          state this to underscore our point here that there is no doubt that the claim defendant raised in

          her section 2-1401 petition—which explicitly objects to service of process and insists that

          substitute service was not properly accomplished by plaintiff and must be quashed—is one

          related to personal jurisdiction. See Sarkissian v. Chicago Board of Education, 201 Ill. 2d 95,

          103-04 (2002) (section 2-1401 petition challenging party’s service of process is attack on

          trial court’s personal jurisdiction); accord MB Financial Bank, N.A. v. Ted & Paul, LLC,


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          2013 IL App (1st) 122077, ¶ 16 (section 2-1401 petition challenging trial court’s jurisdiction

          because of improper service is “[e]ssentially *** a motion to quash service”).

¶ 15          Accordingly, then, in applying section 15-1505.6(a) to the instant cause, it becomes clear

          that defendant’s section 2-1401 petition was time-barred. Defendant first appeared in this

          cause on August 23, 2016, when her counsel arrived at a hearing on plaintiff’s motion to

          approve sale. Counsel asked the trial court to set a briefing schedule, which the court did, and

          counsel in fact prepared the written order entered in this cause outlining that schedule.

          Additionally, defendant’s counsel filed an official appearance on her behalf with the court six

          days later, on August 29, 2016. But it was not until February 14, 2017—some six months

          later, 1 and well after 60 days of her first participation in this cause—that defendant filed her

          section 2-1401 petition directly challenging the trial court’s personal jurisdiction over her, as

          evidenced by her assertions that plaintiff had not properly effectuated substitute service.

          Again, this was the entire crux of her petition, which, at its essence, sought to quash service.

          Pursuant to section 15-1505.6(a), defendant failed to timely assert her challenge to the trial

          court’s personal jurisdiction over her.

¶ 16          Relying heavily on our supreme court’s decision in BAC Home Loans Servicing, LP v.

          Mitchell, 2014 IL 116311, defendant argues on appeal that, regardless of any failure on her

          part to comply with section 15-1505.6, the statute did not operate to retroactively waive her

          objection to service. Defendant is correct that Mitchell held that a party who submits to the

          trial court’s jurisdiction does so only prospectively, and her appearance does not retroactively

          validate orders entered prior to that date. See Mitchell, 2014 IL 116311, ¶ 43. However, her

              1
                We would further note that defendant’s petition was also filed long (some five months) after the
          trial court entered an order approving sale following a hearing at which defendant did not appear, a
          hearing that was part of the briefing schedule defendant’s own counsel had come to court and asked
          the trial court for and himself transcribed to be entered into the record.
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          argument is meritless within the context of this particular cause. This is because the default

          judgment entered against defendant here would, of course, be void if service was ineffective.

          But, defendant still failed to comply with the 60-day time limit set forth in section 15­

          1505.6(a). She never properly contested the issue of the trial court’s jurisdiction over her.

          Thus, the fact that jurisdiction gained under section 15-1505.6 operates prospectively is

          irrelevant; we cannot get to the merits of the propriety of service because, as a threshold

          matter, defendant failed to follow the very statutory procedure that would allow us to do so.

          See BAC Home Loans Servicing, LP v. Pieczonka, 2015 IL App (1st) 133128, ¶ 15

          (“[b]ecause we find that defendant’s motion to quash service of process was untimely, we

          need not address the merits of his arguments regarding the propriety of substitute service in

          this case”).

¶ 17          Ultimately, because defendant failed to file her petition within 60 days of first

          participating in a hearing in this cause without filing an appearance (August 23, 2016), or

          even of first filing an official appearance with the trial court (August 29, 2016), and because

          she did not seek any extension of this 60-day deadline from the trial court, section 15-1505.6

          barred her from filing her challenge to the trial court’s personal jurisdiction over her. See,

          e.g., Sanders, 2015 IL App (1st) 141272, ¶ 31 (the defendant waived jurisdiction when he

          participated in foreclosure case but failed to contest court’s jurisdiction within the 60 days

          required by section 15-1505.6); Pieczonka, 2015 IL App (1st) 133128, ¶ 12 (motion to quash

          service time-barred pursuant to section 15-1505.6(a) where the defendant presented that

          motion more than 60 days after filing appearance); U.S. Bank Trust, N.A. v. Colston, 2015 IL

          App (5th) 140100, ¶ 23 (section 15-1505.6 barred the defendants’ challenge to personal

          jurisdiction filed more than 60 days after they first participated in the foreclosure case);


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          GreenPoint Mortgage, 2014 IL App (1st) 132864, ¶ 22 (under section 15-1505.6, the

          defendant was required to move to quash service within 60 days of his first appearance in

          court; “we find that it would not offend considerations of fairness and equity to apply section

          15-1505.6 retroactively”). Cf. Bank of New York Mellon v. Laskowski, 2018 IL 121995

          (where party properly filed motion to quash service, thereby challenging trial court’s

          personal jurisdiction, in residential mortgage foreclosure case within the 60-day time frame

          mandated by section 15-1505.6, the motion to quash service was timely and challenge could

          proceed).

¶ 18                                           CONCLUSION

¶ 19         For all the foregoing reasons, we affirm the judgment of the trial court.

¶ 20         Affirmed.




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