                             2016 IL App (2d) 150128
                                  No. 2-15-0128
                            Opinion filed June 13, 2016
______________________________________________________________________________

                                             IN THE

                            APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

U.S. BANK NATIONAL ASSOCIATION,                  ) Appeal from the Circuit Court
as Trustee for Structured Asset Investment       ) of Kane County.
Loan Trust, Mortgage Pass-Through                )
Certificates, Series 2005-3,                     )
                                                 )
   Plaintiff-Appellant,                          ) No. 14-CH-807
                                                 )
v.                                               )
                                                 )
ANN M. JOHNSTON; RONALD D.                       )
JOHNSTON, a/k/a Ronald Dean Johnston;            )
and JEFFREY D. SMITH,                            )
                                                 )
   Defendants-Appellees                          )
                                                 )
(Mortgage Electronic Registration Systems, Inc. )
Intervenor-Appellant; First State Bank, s/i/i to ) Honorable
Valley Community Bank, Unknown Owners, ) John G. Dalton,
and Nonrecord Claimants, Defendants).            ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE McLAREN delivered the judgment of the court, with opinion.
       Justices Jorgensen and Birkett concurred in the judgment and opinion.

                                          OPINION

¶1     Plaintiff, U.S. Bank National Association (U.S. Bank), filed a foreclosure action against

defendants Ann M. Johnston, Ronald D. Johnston (the Johnstons), and Jeffrey D. Smith. The

Johnstons and Smith moved to dismiss U.S. Bank’s complaint, based on a prior default judgment

entered in favor of Valley Community Bank (VCB). Smith also argued that he was a bona fide

purchaser for value of the subject property. The trial court dismissed U.S. Bank’s complaint as
2016 IL App (2d) 150128


barred by res judicata. On appeal, U.S. Bank argues, inter alia, that the trial court erred by

ruling that its foreclosure action was barred by res judicata. We reverse and remand for further

proceedings.

¶2                                    I. BACKGROUND

¶3      On November 3, 1997, the Johnstons executed a mortgage and a note against their real

property located at 112 North 1st Street, Geneva, Illinois (the property).      This mortgage

conveyed a lien interest in the property to VCB, as security for a note in the principal sum of

$57,650. This mortgage was recorded with the Kane County recorder of deeds on November 13,

1997.

¶4      On January 28, 2005, the Johnstons executed a second mortgage and note against the

property, in the principal sum of $244,500. The mortgagee of the mortgage was intervenor,

Mortgage Electronic Registration Systems, Inc. (MERS), which acted as nominee for the lender,

BNC Mortgage, Inc. (BNC). The MERS mortgage and the BNC note were recorded with the

Kane County recorder of deeds on March 11, 2005. The definitions section of the MERS

mortgage provided the following:

                “(C) ‘MERS’ is Mortgage Electronic Registration Systems, Inc. MERS is a

        separate corporation that is acting solely as a nominee for Lender and Lender’s

        successors and assigns. MERS is the mortgagee under this Security Instrument *** and

        has an address and telephone number of P.O. Box 2026, Flint MI 48501, tel. (888) 679-

        MERS.

                (D) ‘Lender’ is BNC MORTGAGE, INC., A DELWARE CORPORATION.”

The MERS mortgage also provided the following:

        “This Security Instrument secures to Lender (i) the repayment of the Loan and all

        renewal and modifications of the Note; and (ii) the performance of Borrower’s covenants

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2016 IL App (2d) 150128


        and agreements under the Security Instrument and the Note. For this purpose, Borrower

        does hereby mortgage, grant and convey to MERS (solely as nominee for Lender and

        Lender’s successors and assigns) and to the successors and assigns of MERS, the

        following described property [(legal description and address of the property provided)].

                                                   ***

               *** Borrower understands and agrees that MERS holds only legal title to the

        interest granted by Borrower in this Security Instrument, but, if necessary to comply with

        law or custom, MERS (as nominee for Lender and Lender’s successors and assigns) has

        the right to exercise any or all of those interests, including, but not limited to, the right to

        foreclose and sell the Property.”

¶5      On June 9, 2006, the Johnstons executed a third mortgage and note against the property.

This mortgage conveyed a lien interest in the property to VCB, as security for a note in the

principal sum of $95,796.99. This 2006 VCB mortgage was recorded with the Kane County

recorder of deeds on August 15, 2007.

¶6      On January 29, 2009, VCB filed a foreclosure complaint, naming as defendants the

Johnstons and “BNC MORTGAGE, INC. NOW OWED [sic] BY CHASE HOME FINANCE,

LLC.”

¶7      VCB issued summons on “C.T. Corporation as registered agent of Chase Home Finance,

LLC.” The summons was served February 23, 2009, on C.T. Corporation in Plantation, Florida.

The summons identified “Chase Home Finance, LLC” as “Defendant Corporation.”

¶8      On July 30, 2009, the trial court entered a default judgment in favor of VCB in its

foreclosure action. The default judgment provided in part:

        “That any and all interest that BNC Mortgage, Inc., now owned by Chase Home Finance

        LLC has in the property located at 112 N. 1st St., Geneva, IL be and is hereby foreclosed

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2016 IL App (2d) 150128


       and terminated, as they have failed to appear or answer after being served on Feb. 23,

       2009.”

¶9     According to a document recorded with the Kane County recorder of deeds on October

14, 2009, “[p]rior to” May 27, 2009, MERS, as nominee for BNC, assigned the Johnstons’

mortgage to U.S. Bank. The assignment was notarized on August 6, 2009.

¶ 10   On November 5, 2009, the trial court entered a consent judgment in the VCB foreclosure

action, providing in part:

       “That the effect of said judgment by consent will satisfy the mortgage of indebtedness

       and vest absolute title to the mortgaged real estate known as 112 N. 1st Street, Geneva,

       IL 60134 to Valley Community Bank free and clear of all claims and liens and interest of

       the mortgagor including rights of reinstatement and redemption and the rights of all other

       persons made parties to the foreclosure whose interest are subordinate to that of

       Plaintiff.”

¶ 11   On January 29, 2010, VCB sold the property to Smith.

¶ 12   On July 13, 2011, U.S. Bank filed a motion to quash summons. On January 27, 2014, the

trial court, Judge Leonard J. Wojtecki presiding, denied U.S. Bank’s motion.

¶ 13   On June 9, 2014, U.S. Bank filed a complaint to foreclose its mortgage against the

property. MERS moved to intervene to “preserve its absolute right to service of process in any

foreclosure proceeding that seeks to impact MERS’s recorded interest in real property.” The

trial court granted MERS’s motion to intervene.

¶ 14   On July 18, 2014, the Johnstons filed a motion to dismiss U.S. Bank’s foreclosure

complaint pursuant to section 2-619(a)(4) of the Code of Civil Procedure (Code) (735 ILCS 5/2-

619(a)(4) (West 2014)). The Johnstons argued that U.S. Bank’s complaint was barred by res

judicata, based on the consent judgment entered in the VCB foreclosure action.

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2016 IL App (2d) 150128


¶ 15   On August 6, 2014, Smith filed a motion to dismiss U.S. Bank’s foreclosure complaint

pursuant to sections 2-619(a)(4) and 2-619(a)(9) of the Code (735 ILCS 5/2-619(a)(4), (a)(9)

(West 2014)).    Smith argued that U.S. Bank’s complaint was barred by res judicata and

collateral estoppel, based on the default and consent judgments entered in the VCB foreclosure

action. Smith also argued that he was a bona fide purchaser for value pursuant to section 2-

1401(e) of the Code (735 ILCS 5/2-1401(e) (West 2014)).

¶ 16   Smith’s motion to dismiss alleged the following facts. Prior to the 2006 VCB mortgage,

“the Johnstons delivered a mortgage lien interest in the [property] to [MERS], as nominee for

[BNC]. *** As evidenced by the BNC mortgage, MERS’ role in this transaction was to act

solely as BNC’s ‘nominee,’ and the rights under the instrument, inure to BNC.” “BNC closed its

doors in 2007. *** Nothing in the Kane County Recorder’s grantor-grantee index reflected the

identity of BNC’s successor until August 6, 2009, when an assignment of the BNC Mortgage to

U.S. Bank (the ‘Assignment’) was recorded.” VCB filed its foreclosure complaint on January

29, 2009. Because “MERS was merely the ‘nominee’ for the entity entitled to the benefits

provided by the BNC Mortgage and the assignment of the instrument had yet to be recorded,

VCB’s counsel in the [VCB foreclosure action] consulted with Ronald [Johnston] regarding the

identity of the current holder of the BNC Note and Mortgage in an effort to provide notice of the

proceeding. *** Ronald [Johnston] advised VCB’s counsel that all statements reflecting sums

due under the BNC Note and Mortgage had been sent by Chase Home Finance, LLC’s [sic]

(‘CHF’) and all payments had been remitted to CHF’s offices in Florida. Accordingly, VCB

joined ‘[BNC] now owned by [CHF]’ as a party/defendant in order to extinguish the lien of the

BNC Mortgage. *** VCB served CHF by causing its summons and complaint to be delivered

to the company’s registered agent.”



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2016 IL App (2d) 150128


¶ 17   Smith attached to his motion to dismiss the affidavit of his attorney, Nathan Grzegorek,

who stated the following. U.S. Bank produced “documents which demonstrate that [it] serves as

the title-holding trustee for a securitizing pool (the ‘Trust’) of several thousand mortgage loans,

including the BNC Note and Mortgage. Pursuant to the underlying Trust Agreement dated

March 1, 2005 (the ‘Trust Agreement’), Aurora Loan Services LLC was designated master

servicer, and JPMorgan Chase Bank, N.A. (‘JPMorgan’) served as servicer for the mortgage

loans held by the Trust. JPMorgan, in turn, entered into a subservicing agreement (the ‘Sub-

Servicing Agreement’) which designated CHF as a sub-servicer for the BNC Note.” Smith

attached the “Sub-Servicing Agreement” but did not attach the alleged “Trust Agreement.”

Smith also attached the VCB foreclosure complaint, the summons issued in the VCB foreclosure

action, the consent judgment in the same lawsuit, the BNC mortgage, and the affidavit of Ronald

Johnston.

¶ 18   On September 24, 2014, U.S. Bank filed a response to Smith’s and the Johnstons’

motions to dismiss, alleging and arguing the following. On January 29, 2009, VCB filed a

foreclosure action to foreclose both of its mortgages against the property. VCB did not name or

serve MERS or U.S. Bank in its foreclosure action. Smith and the Johnstons could not establish

the requirements of res judicata, for the following reasons. Because VCB did not name or

properly serve U.S. Bank or MERS in VCB’s foreclosure action: (1) neither U.S. Bank nor

MERS was a party to that prior action; (2) there was no final judgment concerning U.S. Bank’s

mortgage in that action; (3) there was no identity between that action and the instant matter; and

(4) there was no identity of parties. Further, Smith was not a bona fide purchaser for value

without notice of U.S. Bank’s mortgage.

¶ 19   In addition, MERS filed a “Brief in Opposition To [Smith’s] Motion to Dismiss.”



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2016 IL App (2d) 150128


¶ 20    On January 15, 2015, the trial court, Judge John G. Dalton presiding, granted Smith’s and

the Johnstons’ motions to dismiss, based on res judicata. The trial court stated the following in

part:

        “On November 5th, 2009, a Consent Foreclosure Decree was entered with prior written

        notice provided to CHF, vesting [VCB] with title to the premises.

                                                   ***

                Res judicata provides that a final Judgment is conclusive as to the rights of the

        parties and their privies and constitutes an absolute bar for a subsequent action involving

        the same claim, demand, or cause of action. *** Agency is a consensual fiduciary

        relationship between two persons or entities which gives the agent the power to affect the

        legal relations of the principal.

                In this case, U.S. Bank gave CHF such power at all times relevant hereto. The

        Subservicing agreement became effective 1-1-05 and required CHF to, quote, service and

        administer, closed quote, the BNC Note and Mortgage and vest CHF with, quote, full

        power and authority to do or cause to be done any and all things in connection with such

        servicing and administration which it may deem necessary or desirable, closed quote.

                Whether viewed through the lens of the Misnomer Doctrine or whether CHF is

        viewed as U.S. Bank’s privy or U.S. Bank is considered to be estopped as an undisclosed

        principal, the Court finds due process not―is not offended here.

                The Court below held―or the Court in the earlier case held that CHF was

        properly served. There was an opportunity for U.S. Bank to appear in Defendant’s

        claimed interest in the property and the Prior Foreclosure Action.

                Both motions to dismiss are hereby granted.”



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2016 IL App (2d) 150128


¶ 21   U.S. Bank filed a notice of appeal on February 4, 2013, and MERS filed its notice that it

was joining U.S. Bank’s notice of appeal on February 13, 2015.

¶ 22                                      II. ANALYSIS

¶ 23   A motion for involuntary dismissal under section 2-619 of the Code admits all well-

pleaded facts and reasonable inferences therefrom. Snyder v. Heidelberger, 2011 IL 111052, ¶ 8.

The motion should be granted only if the plaintiff can prove no set of facts that would support a

cause of action. Id. When ruling on a section 2-619 motion to dismiss, a court must interpret all

pleadings and supporting documents in the light most favorable to the nonmoving party. Id. We

review de novo a section 2-619 order of dismissal. Id.

¶ 24   U.S. Bank challenges the dismissal of its foreclosure action, arguing that the trial court

erred by ruling that its claim was barred by res judicata.

¶ 25   “ ‘The doctrine of res judicata provides that a final judgment on the merits rendered by a

court of competent jurisdiction bars any subsequent actions between the same parties or their

privies on the same cause of action.’ ” Hudson v. City of Chicago, 228 Ill. 2d 462, 467 (2008)

(quoting Rein v. David A. Noyes & Co., 172 Ill. 2d 325, 334 (1996)). Three requirements must

be satisfied for res judicata to apply: (1) a final judgment on the merits has been reached by a

court of competent jurisdiction; (2) an identity of cause of action exists; and (3) the parties or

their privies are identical in both actions. Id. (citing Downing v. Chicago Transit Authority, 162

Ill. 2d 70, 73-74 (1994)). If any requirement is not met, res judicata will not apply. Indian

Harbor Insurance Co. v. MMT Demolition, Inc., 2014 IL App (1st) 131734, ¶ 28. The burden of

showing that res judicata applies is on the party invoking the doctrine. Hernandez v. Pritikin,

2012 IL 113054, ¶ 41. We review de novo a dismissal pursuant to section 2-619(a)(4) of the

Code (735 ILCS 5/2-619(a)(4) (West 2014)) based on res judicata. Morris B. Chapman &

Associates v. Kitzman, 193 Ill. 2d 560, 565 (2000).

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2016 IL App (2d) 150128


¶ 26   U.S. Bank argues that the Johnstons and Smith failed to establish the first element of res

judicata, namely, that there was a final judgment on the merits reached by a court of competent

jurisdiction. U.S. Bank contends that the service of process in the VCB foreclosure action did

not confer personal jurisdiction over MERS, U.S. Bank, or its predecessor in interest. Therefore,

U.S. Bank argues, the consent judgment is void as to it and thus cannot bar U.S. Bank’s

foreclosure action.

¶ 27   To enter a valid judgment, a court must have personal jurisdiction over the parties. BAC

Home Loans Servicing, LP v. Mitchell, 2014 IL 116311, ¶ 17. Personal jurisdiction can be

established by service of process in accordance with statutory requirements or by a party’s

voluntary submission to the court’s jurisdiction. Id. “ ‘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.’ ” Arch Bay Holdings, LLC-Series 2010B v. Perez, 2015 IL App (2d) 141117, ¶ 10

(quoting Schorsch v. Fireside Chrysler-Plymouth, Mazda, Inc., 172 Ill. App. 3d 993, 1001

(1988)).

¶ 28   Service of process protects an individual’s right to due process by providing proper

notification and an opportunity to be heard. In re Dar. C., 2011 IL 111083, ¶ 61. Effective

service of process vests jurisdiction in the court over the person whose rights are to be affected

by the litigation. Performance Network Solutions, Inc. v. Cyberklix US, Inc., 2012 IL App (1st)

110137, ¶ 44. Therefore, a failure to effect service as required by law deprives a court of

jurisdiction over the person, and any default judgment based on defective service is void. Equity

Residential Properties Management Corp. v. Nasolo, 364 Ill. App. 3d 26, 32 (2006).

Accordingly, a foreclosure judgment entered without service of process is void. State Bank of

Lake Zurich v. Thill, 113 Ill. 2d 294, 308 (1986); Bank of New York Mellon v. Karbowski, 2014

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IL App (1st) 130112, ¶ 12. In addition, where a summons is invalid, service of the same is also

without effect. Schorsch, 172 Ill. App. 3d at 1001.

¶ 29   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 summons in civil cases, stating: “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 2008).

¶ 30   Illinois Supreme Court Rule 101(a) (eff. May 30, 2008) provides for the form of the

summons, stating: “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.” Illinois Supreme Court Rule 101(d) (eff. May 30, 2008) provides a sample form for

the summons, stating that the summons shall be “substantially” in the form provided. The form

provided includes a caption that directs “naming all defendants.” Id. Illinois Supreme Court

Rule 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.)

¶ 31   This court has previously held that a summons issued in violation of the Code and the

rules is void and results in a lack of personal jurisdiction over the defendant. See Arch Bay, 2015

IL App (2d) 141117, ¶¶ 14, 19; Schorsch, 172 Ill. App. 3d at 1002. We explained that “ ‘[t]he

procedures for issuance of summons set forth in section 2-201(a) [of the Code] and the supreme

court rules must be adhered to in order to give the court personal jurisdiction over a defendant.’ ”

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2016 IL App (2d) 150128


Arch Bay, 2015 IL App (2d) 141117, ¶ 14 (quoting Schorsch, 172 Ill. App. 3d at 1001. Our

supreme court has 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 Arch Bay, 2015 IL App (2d) 141117, ¶ 14 (this court stating the same,

quoting Ohio Millers Mutual); Theodorakakis v. Kogut, 194 Ill. App. 3d 586, 588 (1990) (stating

the same).

¶ 32   For example, in Theodorakakis, the plaintiff filed a complaint against “ ‘Maywood

Proviso State Bank u/t/a No. 4289.’ ” Theodorakakis, 194 Ill. App. 3d at 587-88. However, the

summons served upon the bank incorrectly designated the trust number as 44289. Id. at 588.

The trial court entered a default judgment against the bank. Id. The appellate court held that the

summons was invalid, reasoning that, even though the body of the complaint contained the

correct trust number, “the summons did not name a legal entity upon which service could be

had.” Id. at 589.

¶ 33   Similarly, in Arch Bay, 2015 IL App (2d) 141117, the plaintiff filed a foreclosure

complaint against Marta E. Romero de Perez and her husband, Isais Perez, and other defendants.

Id. ¶¶ 1, 3. The case caption on each of the three summonses listed “Isais Perez et al.” as

defendants. Id. ¶ 3. A second page attached to each summons directed that the summons be

served on a list of defendants that included Marta and Isais Perez at the same address. Id. Marta

was served by substitute service on her daughter. Id. Marta never appeared and a default

judgment was entered against her. Id. ¶¶ 3, 4. This court held that the trial court lacked personal

jurisdiction over Marta because her name did not appear on the face of the summons. Id. ¶ 19.

We explained, “To avoid confusion, jurisdictional rules are most functional when they are



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2016 IL App (2d) 150128


unambiguous and straightforward. Rule 101(a) requires that the summons ‘shall be directed to

each defendant.’ Ill. S. Ct. R. 101(a) (eff. May 30, 2008).” Id. ¶ 19.

¶ 34   Similar to Arch Bay, the caption on the issued summonses in the VCB foreclosure action

listed “JOHNSTON ET AL” as defendants.            See id. ¶ 3.    Further, below the caption the

summonses stated:

       “SERVE THIS DEFENDANT AT:

       Name: Chase Home Finance LLC

       CT Corporation system (Registered Agent)”

Similar to Arch Bay, the name of the proper defendant, BNC or MERS, did not appear on the

face of the summonses in the VCB foreclosure action. See id. ¶ 19. Accordingly, the trial court

lacked personal jurisdiction to enter any judgment against U.S. Bank’s predecessor in interest in

that action. See id. Therefore, the Johnstons and Smith have failed to establish the first

requirement of res judicata: that a final judgment on the merits has been reached by a court of

competent jurisdiction. In light of this, the trial court erred by granting the Johnstons’ and

Smith’s motions to dismiss U.S. Bank’s foreclosure action.

¶ 35   Smith argues that the trial court correctly found that CHF was BNC’s agent for purposes

of accepting service of process. Smith contends that the plain language of the subservicing

agreement required CHF to “service and administer” the BNC note and mortgage and vested

CHF with “Full power and authority *** to do or cause to be done any and all things in

connection with servicing and administration which [CHF] may deem necessary or desirable.”

¶ 36   We need not address the language of the subservicing agreement, for the following

reason. The subservicing agreement does not name U.S. Bank, or BNC or MERS, as a party to

the agreement. Rather, the subservicing agreement provides that the agreement is between

“JPMORGAN CHASE BANK, NATIONAL ASSOACIATION [sic], successor by merger to

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Bank One, N.A., *** and CHASE HOME FINANCN [sic] LLC.” Although Smith’s attorney

stated in his affidavit that “JPMorgan, in turn, entered into a subservicing agreement (the ‘Sub-

Servicing Agreement’) [that] designated CHF as a sub-servicer for the BNC Note,” Smith does

not cite any provision in the subservicing agreement where BNC is named as a party to the

agreement. Accordingly, there is nothing in the agreement that establishes a relevant connection

between BNC and CHF.

¶ 37   Smith also argues that the trial court properly determined that U.S. Bank is estopped from

disputing issues related to its identity, because U.S. Bank was an undisclosed principal. Smith

cites Siebert v. Bleichman, 306 Ill. App. 3d 841 (1999), to support his argument.

¶ 38   In Siebert, this court held that the plaintiff mistakenly sued an employee of a laundromat.

Siebert, 306 Ill. App. 3d at 847. The plaintiff failed to sue the undisclosed principal, the

corporate owner, within the limitations period. Id. at 843. This court held that the claim against

the corporate defendant related back to the original action against the employee, because the

identity of the principal had been hidden from the plaintiff. Id. at 847. We reasoned that,

“[w]hen a plaintiff’s mistake about the identity of the proper defendant is caused or induced by a

corporation’s representations made through its agents, the corporation should be prevented from

disputing the question of its correct identity.” Id. at 845. In this case, unlike the plaintiff in

Siebert, Smith has failed to establish that VCB could not have served the proper defendant.

Rather, public record indicated that MERS could have been served on behalf of BNC, U.S.

Bank’s predecessor in interest. Accordingly, Siebert is distinguishable from this case.

¶ 39   Smith also argues that, pursuant to the jurisprudence governing the misnomer doctrine,

any misidentification of the true party in interest in relation to the BNC mortgage was an

excusable mistake. Smith contends that any misnomer relative to the identity of the holder of the



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BNC note and mortgage in the pleadings, motions, and orders filed in the VCB foreclosure

action is correctable pursuant to section 401(b) of the Code (735 ILCS 5/2-401(b) (West 2014)).

¶ 40   Section 401(b) of the Code provides:

               “(b) Misnomer of a party is not a ground for dismissal but the name of any party

       may be corrected at any time, before or after judgment, on motion, upon any terms and

       proof that the court requires.” 735 ILCS 5/2-401(b) (West 2014).

¶ 41   This section of the Code prevents a party from forcing the dismissal of a case due to a

mistake in the name of a party. Odle v. Department of State Police, 2015 IL App (5th) 140274, ¶

18. However, there is a difference between misnomer and mistaken identity: the former occurs

when a plaintiff files an action against the correct party under an incorrect name; the latter occurs

when a plaintiff names the wrong party. Todd W. Musburger, Ltd. v. Meier, 394 Ill. App. 3d

781, 806 (2009). The effect of misnomer is that the court acquires personal jurisdiction over the

party who is called by an incorrect name but receives notice of the lawsuit. Capital One Bank,

N.A. v. Czekala, 379 Ill. App. 3d 737, 742 (2008). The effect of mistaken identity is that the

court does not acquire personal jurisdiction over the party wrongly named but served. See id. at

743. Such a judgment is void ab initio. Barbour v. Fred Berglund & Sons, Inc., 208 Ill. App. 3d

644, 650 (1990). “This is especially true when the mistaken identity involves a nonexistent

business.” Czekala, 379 Ill. App. 3d at 743.

¶ 42   In VCB’s foreclosure action, it named as defendant “BNC MORTGAGE, INC. NOW

OWED [sic] BY CHASE HOME FINANCE, LLC.” Nothing in the record indicates that this

named entity exists. Therefore, the judgments entered in the action against “BNC Mortgage, Inc.

now owned by Chase Home Finance, LLC” are void. See Czekala, 379 Ill. App. 3d at 743.

¶ 43   In addition, Czekala makes clear, regardless of misnomer:



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               “ ‘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.’ ” Id. at 746 (quoting

       Thill, 113 Ill. 2d at 308).

Here, neither BNC nor MERS received proper service of process. Therefore, the judgments

entered in the VCB foreclosure action are void as to U.S. Bank. See id. Accordingly, the trial

court erred by granting the Johnstons’ and Smith’s motions to dismiss.

¶ 44   Finally, Smith argues that, although the trial court did not base its decision on Smith’s

status as a bona fide purchaser, we may affirm the dismissal of U.S. Bank’s complaint on any

basis warranted by the record. While we agree with Smith that we may affirm on any basis

supported by the record (see Maschek v. City of Chicago, 2015 IL App (1st) 150520, ¶ 40), we

disagree that Smith was a bona fide purchaser.

¶ 45   A Bona fide purchaser of an interest in property takes that interest free and clear from all

claims except those of which he has notice. Schaffner v. 514 West Grant Place Condominium

Ass’n, 324 Ill. App. 3d 1033, 1046 (2001).        However, a purchaser cannot be a bone fide

purchaser if he had actual or constructive notice of the outstanding rights of other parties to the

property. Bank of New York v. Unknown Heirs & Legatees, 369 Ill. App. 3d 472, 477 (2006).

Actual notice is knowledge that the purchaser had at the time of the conveyance, and

constructive notice is knowledge that the law imputes to the purchaser. U.S. Bank National

Ass’n v. Villasenor, 2012 IL App (1st) 120061, ¶ 59. There are two types of constructive notice:

record notice and inquiry notice. Villasenor, 2012 IL App (1st) 120061, ¶ 59. Record notice is

what is shown in the records of the office of the recorder of deeds, whereas inquiry notice is that

which appears in the records of the courts in the county where the property is located. Hachem

v. Chicago Title Insurance Co., 2015 IL App (1st) 143188, ¶ 27. In addition, “a purchaser

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2016 IL App (2d) 150128


having notice of facts that would put a prudent man on inquiry is chargeable with knowledge of

other facts he might have discovered by diligent inquiry.” Bank of New York, 369 Ill. App. 3d at

477.

¶ 46    In this case, the MERS mortgage and its assignment had been recorded when Smith

purchased the property. Further, the court records indicated that VCB failed to name either

MERS or BNC in its foreclosure action. Therefore, in light of the record in this case, whether

Smith was a bona fide purchaser of the property is a disputed question of fact and is no basis for

dismissal of U.S. Bank’s foreclosure action. See Schaffner, 324 Ill. App. 3d at 1046.

¶ 47    Finally, we note that we need not address the additional legal arguments raised by U.S.

Bank and MERS. We have determined that the order they contest must be reversed. Therefore,

we need not address the Gordian knot that U.S. Bank and MERS desire this court to untie.

Instead, we have cut the knot by addressing only those arguments that were necessary for the

resolution of this case.

¶ 48                                   III. CONCLUSION

¶ 49    For the reasons stated, we reverse the trial court’s judgment and remand for further

proceedings.

¶ 50    Reversed and remanded.




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