                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                Wells Fargo Bank, N.A. v. Zwolinski, 2013 IL App (1st) 120612




Appellate Court            WELLS FARGO BANK, N.A., Successor by Merger to Wells Fargo
Caption                    Home Mortgage, Inc., Plaintiff-Appellee, v. ALFRED ZWOLINSKI,
                           Defendant-Appellant (Harris N.A., Corby S. Hagan, Beata Zwolinski,
                           Unknown Heirs and Legatees of Alfred Zwolinski, Defendants).



District & No.             First District, First Division
                           Docket No. 1-12-0612


Filed                      May 6, 2013


Held                       In a mortgage foreclosure action, defendant’s appeal from the trial court’s
(Note: This syllabus       denial of his motion to reconsider the denial of his motion to quash
constitutes no part of     service of summons was dismissed due to his failure to serve any of the
the opinion of the court   other parties with his notice of appeal pursuant to the circuit court’s rules
but has been prepared      and the significant prejudice suffered by the other parties.
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 09-CH-50400; the
Review                     Hon. David B. Atkins, Judge, presiding.



Judgment                   Appeal dismissed.
Counsel on                 Stephen Richek, of Chicago, for appellant.
Appeal
                           Noonan & Lieberman, Ltd., of Chicago (James V. Noonan and Ruth B.
                           Sosniak, of counsel), for appellee.


Panel                      JUSTICE CUNNINGHAM delivered the judgment of the court, with
                           opinion.
                           Justices Rochford and Delort concurred in the judgment and opinion.



                                            OPINION

¶1          This appeal arises from a January 30, 2012 order entered by the circuit court of Cook
        County which denied defendant-appellant Alfred Zwolinski’s (Alfred) motion to reconsider
        an order denying his motion to quash service. On appeal, Alfred argues that: (1) service of
        process was invalid because plaintiff-appellee Wells Fargo Bank, N.A. (Wells Fargo),
        successor by merger to Wells Fargo Home Mortgage, Inc., failed to comply with Cook
        County Circuit Court Rule 7.3 (Cook Co. Cir. Ct. R. 7.3 (Oct. 1, 1996)) when it sought leave
        to serve Alfred by publication; and (2) service of process was invalid because Wells Fargo
        did not conduct due inquiry and diligent inquiry before filing an affidavit for service by
        publication pursuant to section 2-206(a) of the Illinois Code of Civil Procedure (Code) (735
        ILCS 5/2-206(a) (West 2010)). For the following reasons, we dismiss this appeal for
        violation of Illinois Supreme Court Rule 303(c) (eff. May 30, 2008).

¶2                                         BACKGROUND
¶3           On June 1, 2003, Alfred executed a promissory note in the principal amount of $90,355
        payable to Wells Fargo in return for a loan. Also, on June 1, 2003, Alfred secured the loan
        by executing a mortgage on real property located at 6151 West Roscoe Street, Chicago,
        Illinois (Roscoe property). Defendant Beata Zwolinski (Beata) signed the mortgage as a
        “non-vested spouse.”
¶4           On December 16, 2009, Wells Fargo filed a complaint in the circuit court of Cook
        County to foreclose the mortgage. The complaint alleged that Alfred defaulted on monthly
        payments for the period of September 2009 to December 2009, and that the balance due as
        of the time of the complaint was $35,324.16, plus interest. The following parties were joined
        as defendants: Beata; Corby S. Hagan (Hagan), a judgment creditor; Harris N.A. (Harris),
        a junior mortgagee; and unknown heirs and legatees of Alfred. Additionally, on December
        16, 2009, the clerk of the court issued a mortgage foreclosure summons to be served on each
        defendant. The mortgage foreclosure summons instructed the process server to serve Alfred
        and Beata at the Roscoe property.


                                                 -2-
¶5       Maricruz Garcia (Garcia), a special process server and employee of ProVest, LLC
     (ProVest), executed an affidavit which stated that on December 19, 2009, she attempted to
     serve Beata at the Roscoe property. The affidavit stated that the Roscoe property was a one-
     story, single-family home that was occupied and was not for sale. Further, the affidavit stated
     that Garcia allegedly spoke with a tenant of the Roscoe property who stated that Beata was
     the landlord of the Roscoe property and that she lived “somewhere in Elmwood Park.”
     Additionally, on December 19, 2009, Garcia executed a second affidavit which stated that
     on that date, she attempted to serve Alfred at the Roscoe property. Garcia’s second affidavit
     contained a description of the Roscoe property identical to the description in her first
     affidavit. Further, Garcia’s second affidavit stated that the alleged tenant of the Roscoe
     property stated that he “has never [heard] of [Alfred] and does not reside here.”
¶6       On December 29, 2009, Garcia successfully effectuated personal service on Beata at
     2731 North 73rd Avenue, Elmwood Park, Illinois (Elmwood Park property). In January
     2010, Lynda Hansell (Hansell), an employee of ProVest, executed an affidavit of due and
     diligent search which stated that “[a]fter diligent search and inquiry by [Hansell], the
     residence of [Alfred] is unknown to [Hansell].” Hansell’s affidavit listed Alfred’s last known
     address as the Roscoe property. Further, Hansell’s affidavit stated that the following inquiries
     were made in an effort to find an alternate address for Alfred: a search using his social
     security number; an employment comprehensive database search; an inquiry of creditors; a
     directory assistance search; a vessel search; a voter registration search; a department of state
     professional licenses search; a nationwide masterfile death search; a nationwide aircraft
     search; a nationwide pilot search; a department of corrections inquiry; a Freedom of
     Information Act (FOIA) inquiry; a county jail inquiry; a property tax inquiry; and a federal
     prison search. The only inquiries that yielded any results were the social security number
     inquiry, the inquiry of creditors, and the FOIA inquiry, which all listed the Roscoe property
     as Alfred’s last known address. Hansell’s affidavit stated that the Roscoe property is the only
     address at which an attempt to serve Alfred was made.
¶7       On January 28, 2010, Juliet Rowland, a special process server and employee of ProVest,
     filed an affidavit stating that Beata and Harris had been served. The affidavit also stated that
     Alfred and Hagan had not been served. On February 4, 2010, counsel for Wells Fargo filed
     an affidavit for service by publication pursuant to section 2-206(a) of the Code. The affidavit
     stated that on due inquiry, Alfred, Hagan and Alfred’s unknown heirs and legatees could not
     be found. The affidavit also stated that the following actions were taken to ascertain the
     whereabouts of the unserved defendants: ordered and reviewed credit reports on the
     defendants on or about December 8, 2009; reviewed Wells Fargo’s foreclosure information
     package for possible addresses on or about December 9, 2009; reviewed the deed to the
     defendants for possible additional addresses on or about December 9, 2009; reviewed public
     records of the Cook County probate court for a pending probate case on or about December
     15, 2009; made two attempts to serve the unserved defendants; ordered and reviewed the
     property inspection report to determine occupants of the subject property on or about
     December 16, 2009. Further, the affidavit stated that the last known address for the unserved
     defendants was the Roscoe property.
¶8       On February 10, 17, and 24, 2010, Wells Fargo served Alfred, Hagan, and Alfred’s

                                               -3-
       unknown heirs and legatees by publication in the Chicago Daily Law Bulletin. On August
       30, 2010, the trial court entered a judgment of foreclosure and sale. The trial court found that
       Alfred was indebted to Wells Fargo in the amount of $42,187.31 and ordered that the Roscoe
       property be sold.
¶9          In July 2011, Alfred filed an appearance through counsel. On July 15, 2011, the Roscoe
       property was sold to Marek and Jolanta Nowakowski (collectively, the Nowakowskis) for
       $106,000, creating a surplus of $52,223.55. On August 31, 2011, Wells Fargo filed a motion
       to approve the sale of the Roscoe property. Also, on August 31, 2011, Alfred filed a motion
       to quash service. In the motion to quash service, Alfred argued that service by publication
       should be quashed because Wells Fargo only made one attempt to serve him. Attached to
       Alfred’s motion to quash service was an affidavit executed by Alfred which stated that upon
       due inquiry, he could have been found at the Roscoe property. On September 19, 2011, Wells
       Fargo filed a response to the motion to quash service. In its response to the motion to quash
       service, Wells Fargo argued that service by publication was valid because it complied with
       all the requirements of section 2-206(a) of the Code.
¶ 10        On October 12, 2011, the trial court denied Alfred’s motion to quash service. Also, on
       October 12, 2011, the trial court entered an order approving the sale of the Roscoe property
       and ordered that the Roscoe property be turned over to the Nowakowskis. The trial court also
       ordered that the surplus funds be turned over to the clerk of the court. On November 7, 2011,
       Alfred filed a motion to reconsider the trial court’s October 12, 2011 order which denied his
       motion to quash service. In his motion to reconsider, Alfred argued that Wells Fargo did not
       conduct “due diligence” in making only one attempt to serve him at the Roscoe property.
       Additionally, Alfred requested an evidentiary hearing to determine if the “due diligence”
       requirement was satisfied. Wells Fargo then filed a response to Alfred’s motion to
       reconsider.1 In January 2012, Alfred filed a reply to Wells Fargo’s response to the motion to
       reconsider. Attached to Alfred’s reply to Wells Fargo’s response to the motion to reconsider
       was an affidavit executed by Alfred which stated that: he continuously lived at the Roscoe
       property since 1991; since 2007 he has rented out the basement and part of the first floor of
       the Roscoe property; he, and not Beata, collected rent for the Roscoe property; and since
       1997, the Roscoe property has been a two-story home with a basement. Also attached was
       a picture of the Roscoe property from the Cook County assessor’s website.
¶ 11        On January 30, 2012, the trial court denied Alfred’s motion to reconsider. On February
       14, 2012, the trial court entered an order which directed the clerk of the court to issue
       payment of the surplus funds in the amounts of $33,574.42 to Hagan, and $18,649.13 to
       Harris. On February 27, 2012, Alfred filed a timely notice of appeal pursuant to Illinois
       Supreme Court Rule 303 (eff. May 30, 2008).

¶ 12                                      ANALYSIS
¶ 13      Wells Fargo argues that Alfred’s appeal should be dismissed because he failed to comply

              1
               Despite careful examination of the record, we cannot determine the date on which this
       motion was filed.

                                                 -4-
       with Rule 303(c). Specifically, Wells Fargo argues that although Alfred filed a notice of
       appeal, he did not serve any of the parties with the notice of appeal as required by Rule
       303(c). Wells Fargo states that it only became aware of the appeal when it received notice
       of the filing of the record on appeal. Wells Fargo contends that even if this court finds that
       it was not prejudiced by Alfred’s violation of Rule 303(c), the violation is inexcusable
       because there is no indication that any of the other parties (including the new owners of the
       Roscoe property, the Nowakowskis) are even aware that this case has been appealed or that
       their right to the Roscoe property is in jeopardy.
¶ 14        Rule 303(c) states, in pertinent part “[t]he party filing the notice of appeal *** shall,
       within 7 days, file a notice of filing with the reviewing court and serve a copy of the notice
       of appeal upon every other party and upon any other person or officer entitled by law to
       notice.” Ill. S. Ct. R. 303(c) (eff. May 30, 2008). If the appellant fails to serve a copy of the
       notice of appeal on an opposing party, the appellate court is not deprived of jurisdiction
       because the filing of the notice of appeal is the only jurisdictional step in appealing from a
       decision of the circuit court. Kawa v. Harnischfeger Corp., 204 Ill. App. 3d 206, 209 (1990).
       “An appeal will not be dismissed on the basis that the opposing party was not served with
       a copy of the notice of appeal if there was no evidence of prejudice to the party.” Id. A party
       is not prejudiced by the appellant’s failure to serve a copy of the notice of appeal on the party
       if the party could file appellate briefs and argue orally. Id.; Simmons v. Chicago Housing
       Authority, 267 Ill. App. 3d 545, 551 (1994). However, failure to serve a copy of the notice
       of appeal on parties who may be adversely affected by the appellate court’s decision may
       result in dismissal of the appeal. Leyden Fire Protection District v. Township Board of
       Leyden Township, 26 Ill. App. 3d 569, 572-73 (1975).
¶ 15        We note that Alfred has forfeited any argument regarding Rule 303(c) because he did not
       file a reply brief and did not respond to Wells Fargo’s argument on this issue. See
       Department of Central Management Services/The Department of State Police v. Illinois
       Labor Relations Board, State Panel, 2012 IL App (4th) 110356, ¶ 26. Additionally, when
       asked about the violation of Rule 303(c) during oral argument, Alfred’s counsel provided no
       explanation as to why none of the parties were served with a notice of appeal. Thus, we agree
       with Wells Fargo that Alfred violated Rule 303(c) by failing to serve any of the parties with
       the notice of appeal.
¶ 16        The trial court’s orders were in favor of the defendants Hagan and Harris, and against
       Alfred. Although Alfred, Hagan and Harris were originally all listed as defendants before the
       trial court, on appeal it is clear that Alfred’s interests are adverse to the interests of Hagan
       and Harris. Thus, if Hagan and Harris were participating in this appeal, they would in
       substance be appellees. Because Alfred failed to serve a copy of the notice of appeal on
       Hagan and Harris, who would be substantive appellees, they remain officially unaware of the
       appeal. Consequently, they were unable to file briefs on appeal or argue orally. In other
       words, they have been deprived of the opportunity to protect their interests through
       participation in this appeal. It is thus clear that Hagan and Harris were significantly
       prejudiced by Alfred’s failure to serve a notice of appeal upon them.
¶ 17        Moreover, the prejudice caused by Alfred’s violation of Rule 303(c) can be readily
       recognized by examining the practical consequences to the unserved parties in interest if this

                                                 -5-
       court were to reverse the judgment of the trial court. Clearly, Hagan and Harris would be put
       in the very unfortunate position of having to repay the surplus funds which they were
       awarded following the sale of the Roscoe property. It is pointless to speculate about the
       current availability of funds disbursed well over a year ago. Furthermore, if the judgment of
       the trial court were reversed and the sale of the Roscoe property unwound, the purchasers of
       the Roscoe property, the Nowakowskis, would also be greatly disadvantaged. Although the
       Nowakowskis are not parties of record, they are certainly parties in interest. Thus, not only
       did Alfred fail to notify the parties of record, he also failed to notify all parties in interest
       as best practices would dictate. Even though Wells Fargo was not prejudiced by Alfred’s
       violation of Rule 303(c) because it was aware of the appeal, the other parties are in a far
       more untenable position. Hagan and Harris, as well as the Nowakowskis, would be seriously
       prejudiced because of a lack of opportunity to participate in the legal process and to defend
       their rights. Therefore, we dismiss this appeal due to Alfred’s blatant, unexplained violation
       of Rule 303(c) and the significant prejudice to the parties of record.
¶ 18       For the foregoing reasons, this appeal is dismissed.

¶ 19       Appeal dismissed.




                                                 -6-
