                                                                     SIXTH DIVISION
                                                                     February 22, 2008


No. 1-06-2363

MORTGAGE ELECTRONIC SYSTEMS,                         )
                                                     )
                Plaintiff-Appellee,                  )       Appeal from the
                                                     )       Circuit Court of
v.                                                   )       Cook County, Illinois
                                                     )
DEBORAH GIPSON,                                      )       No. 05 CH 10946
                                                     )
                Defendant-Appellant.                 )       Honorable
                                                     )       Jessie G. Reyes
                                                     )       Judge Presiding.
                                                     )

       JUSTICE JOSEPH GORDON delivered the opinion of the court:

       On September 16, 2005, plaintiff, Mortgage Electronic Systems, as nominee for Fremont

Investment and Loan, filed a complaint to foreclose a mortgage executed by defendant, Deborah

Gipson. After an unsuccessful initial attempt to serve Gipson, plaintiff obtained an order from the

circuit court on September 21, 2005, to appoint a special process server. By affidavit, the special

process server attested that on September 29, 2005, he perfected individual service on Gipson by

delivering the summons and complaint to her at her residence.

       On January 17, 2006, plaintiff filed a motion for default, a motion to appoint a selling

officer, and a motion for judgment of foreclosure and order of sale. The circuit court granted

these motions the same day they were filed. On May 2, 2006, a judicial sale of the property took

place and Third Coast Holders, LLC (Third Coast Holders), was the high bidder.

       On May 5, 2006, Gipson filed a motion to quash service of summons, set aside the

judgment of foreclosure and deny confirmation of the judicial sale. In her motion, Gipson stated
No. 1-06-2363

that she was never served. In support of this contention, Gipson attached an affidavit in which

she stated:

                "That in or around the time that Plaintiff alleges that I was personally

       served with process in this cause, a guest of mine, Gwen Tolbert, was visiting my

       home and was at the home during the day when I was not at home. She did not

       reside at the subject property and was presumably served with summons in this

       cause on my behalf.

                That the person who handed her documents did not tell her of the contents

       of the envelop [sic], nor did they inform her that the contents of the envelop [sic]

       was [sic] relating to a foreclosure of the property in which I was then living and

       she did not communicate any such information to me.

                That I had never been served with summons and complaint in this cause

       properly notifying me of each of the proceedings relating to the foreclosure of my

       home.

                That after I was unable to temporarily pay my mortgage, I contacted the

       mortgage company and attempted to reinstate my mortgage and to enter into a

       workout agreement with the mortgage company.

                That the mortgage company failed, and/or refused to send me the

       necessary documents in order to reinstate my mortgage, or return my calls and

       inquiries about commencing the process for reinstating my mortgage.

                That on or about April 29, 2006 I received a telephone call from a


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No. 1-06-2363

       representative of the Plaintiff who informed me that my property was set to be

       sold at judicial sale on May 2, 2006 and threatened me to leave the property or pay

       the Plaintiff all the money I owed on my mortgage. I immediately contacted

       attorney Rodrick F. Wimberly to address this matter."

       Gipson further alleged in her motion that on May 2, 2006, her attorney drafted a motion

to vacate the judgment of foreclosure and strike the judicial sale date that was scheduled that

same day but that he was unable to file and present the motion before the judicial sale was held

that morning. Gipson's attorney filed an appearance on her behalf on May 17, 2006.

       On May 24, 2006, the circuit court entered an order granting plaintiff leave to respond to

Gipson's motions, granting Gipson a week to reply, and setting the case for July 5, 2006, "for

presentation of courtesy copies and setting of hearing date in courtroom 2802."

       On June 23, 2006, plaintiff filed a response to Gipson's motions to quash service of

summons, set aside the judgment of foreclosure and deny confirmation of the sale arguing that

Gipson's uncorroborated testimony that she was not served was not sufficient to overcome the

presumption of validity attached to a return of service.

       On July 5, 2006, the status date set by the circuit court's May 24, 2006, order, Gipson did

not appear and the court granted plaintiff's "motion for confirmation of sale and right to

possession."1 In its order, the circuit court confirmed the foreclosure and sale of Gipson's

property, ordered a distribution of the sale funds, ordered that a deed be issued to the holder of


       1
           This motion does not appear in the record and it is not clear when it was filed; however,

Gipson has not alleged that she was not given proper notice of the motion.

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No. 1-06-2363

the certificate of sale, ordered that the holder of the certificate of sale be entitled to possession in

30 days, and ordered that the sheriff of Cook County evict Gipson in 30 days.

        On August 7, 2006, Gipson brought an emergency motion to quash service of summons.

The motion was identical to her previously filed motion except that it additionally alleged the

following: that the circuit court had entered an order with a briefing schedule on defendant's

motion and set the matter for a "clerk status" on July 5, 2006; that defendant's attorney was out

of the office on vacation from July 5 through July 18, 2006; that "due to a mis-communication

error, no member of his office appeared at the clerk status and defendant's motion was stricken,

and the previous court judgment of foreclosure and order confirming judicial sale were entered

along with an order of possession"; that defendant's attorney did not receive plaintiff's response to

defendant's motion until after he returned from vacation; and that defendant's motions were

meritorious.

        On August 9, 2006, the circuit court entered an order denying Gipson's August 7, 2006,

emergency motion for lack of jurisdiction. Gipson then filed a motion to reconsider in which she

argued that the circuit court erred in denying her emergency motion on the basis of timeliness

because the motion was filed within the required 30 days in that the thirtieth day fell on Saturday,

August 5, 2006, and she filed her motion on the next available court date, August 7, 2006.

Gipson further contended that regardless of when her motion to reconsider was brought, the

circuit court's July 5, 2006, order confirming the foreclosure and sale of Gipson's property was

void because the court never had personal jurisdiction over Gipson due to the lack of proper

service of summons and the default order could therefore be attacked at any time.


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No. 1-06-2363

       On appeal, Gipson makes the same contentions she made in her motion to reconsider.

Gipson's first argument, that she filed her emergency motion within 30 days of the circuit court's

order confirming the foreclosure and judicial sale, is without merit. Section 2-1301 of the Code

of Civil Procedure (Code) states: "The court may in its discretion, before final order or judgment,

set aside any default, and may on motion filed within 30 days after entry thereof set aside any final

order or judgment upon any terms and conditions that shall be reasonable." 735 ILCS 5/2-

1301(e) (West 2004). Section 1.11 of the Statute on Statutes explains how the 30-day time limit

of section 2-1301(e) must be computed:

                "The time within which any act provided by law is to be done shall be

       computed by excluding the first day and including the last, unless the last day is

       Saturday or Sunday or is a holiday as defined or fixed in any statute now or

       hereafter in force in this State, and then it shall also be excluded. If the day

       succeeding such Saturday, Sunday or holiday is also a holiday or a Saturday or

       Sunday then such succeeding day shall also be excluded." 5 ILCS 70/1.11 (West

       2004).

       There is no dispute that the circuit court's July 5, 2006, order confirming the foreclosure

and sale of Gipson's property was a final and appealable order granting a default judgment to

plaintiff. Thus, according to section 2-1301, Gipson had 30 days to bring a motion to set aside

that judgment. In computing these 30 days, section 1.11 directs us to exclude the first day, which

was July 5, the day of the judgment. Thus, with July 6 being the first day counted, the thirtieth

day fell on August 4, 2006, which was a Friday and not a holiday. Gipson did not file her


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No. 1-06-2363

emergency motion until August 7, 2006, and the motion was, therefore, not in compliance with

section 2-1301. Gibson's contention that the thirtieth day fell on Saturday August 5, 2006, is

inexplicable and is not supported by the case she cites as support, namely, Valdovinos v. Luna-

Manalac Medical Center, Ltd., 307 Ill. App. 3d 528, 718 N.E.2d 612 (1999). In Valdovinos, the

court found that the thirtieth day after an order entered September 26, 1997, was Sunday,

October 26, 1997; therefore, because the thirtieth day landed on a Sunday, the court deemed

defendant's motion to reconsider, filed on Monday, October 27, 1997, to be timely. Valdovinos,

307 Ill. App. 3d at 536, 718 N.E.2d at 617. The month of September has 30 days; thus four days

of that month were counted toward the 30 days – the 27th through the 30th. Those four days of

September were then added to 26 days of October to determine that the thirtieth day landed on

October 26, 1997. See Valdovinos, 307 Ill. App. 3d at 536, 718 N.E.2d at 617. Using this same

method of computation, it is clear that the thirtieth day after July 5, 2006, was Friday, August 4,

2006, making Gipson's filing on August 7, 2006, beyond the 30-day time frame set out in section

2-1301.

       Thus, Gipson's motion to reconsider could only prevail if her second contention was

meritorious insofar as it alleged that the circuit court never had personal jurisdiction over her due

to improper service of summons and that the circuit court's entry of default judgment against her

was, therefore, void. As stated by our supreme court:

                "In order to have a valid judgment the court must have both jurisdiction

       over the subject matter of the litigation and jurisdiction over the parties. [Citation.]

       Personal jurisdiction may be acquired either by the party's making a general


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No. 1-06-2363

       appearance or by service of process as statutorily directed. [Citation.] A judgment

       rendered by a court which fails to acquire jurisdiction over the parties is void and

       may be attacked and vacated at any time, either directly or collaterally.

       [Citations.]" In re Marriage of Verdung, 126 Ill. 2d 542, 547, 535 N.E.2d 818,

       820 (1989).

Where a voidness challenge is brought more than 30 days after a default judgment, it should be

considered under section 2-1401, although it will not be subject to the time, due diligence, or

meritorious defense requirements applicable to other section 2-1401 petitions. See Sarkissian v.

Chicago Board of Education, 201 Ill. 2d 95, 104-05, 776 N.E.2d 195, 201-02 (2002) (stating,

"petitions seeking relief from void judgments are section 2-1401 petitions" and "[p]etitions

brought on voidness grounds need not be brought within the two-year time limitation" and "the

allegation that the judgment or order is void substitutes for and negates the need to allege a

meritorious defense and due diligence").

       Thus, it is clear that had Gipson never appeared or otherwise participated in the case prior

to the circuit court's entry of default judgment for plaintiff, she would not be precluded from

anytime thereafter challenging that default as void for lack of personal jurisdiction. See In re

Marriage of Verdung, 126 Ill. 2d at 547, 535 N.E.2d at 820. However, the actual facts of this

case are slightly different. As noted, prior to the circuit court's entry of default judgment for

plaintiff, Gipson filed a motion to quash service of summons. The circuit court then set a briefing

schedule and continued the motion for status. Gipson failed to attend that status date and the

court entered a default judgment for plaintiff. Thirty-three days later, Gipson appeared in court to


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No. 1-06-2363

again challenge the circuit court's jurisdiction over her and to argue that default judgment was

void for lack of jurisdiction. Thus, the issue becomes whether having raised a jurisdictional

objection, Gipson's subsequent failure to attend a scheduled court date constituted a waiver or

abandonment of that objection or a general appearance and submission to the court's jurisdiction.

       Preliminary to this issue, however, is the question of whether the circuit court actually

ruled on Gipson's initial motion to quash service of summons. The rule is clear that once a court

denies a preliminary objection to in personam jurisdiction, the jurisdiction of that court is no

longer subject to collateral attack. See Restatement (Second) of Judgments §10(2), at 100

(1982) ("A determination of an objection to notice or territorial jurisdiction precludes the party

who asserted it from litigating either contention in subsequent litigation"). It, therefore, follows

that if the circuit court denied Gipson's motion and determined that it did have in personam

jurisdiction, Gipson would be precluded from reasserting that objection beyond the 30-day period

during which the circuit court retained its jurisdictional power to reconsider its rulings.

        In this regard, Gipson's emergency motion stated that her original motion was stricken.

Subsequently, in her appellate brief, she states: "There is no evidence in the record that the trial

court even ruled on the Defendant's first Motion to Quash. Defendant only presumes her motion

was denied, because the trial court entered orders to confirm the judicial sale of the property and

entered an order of possession." Plaintiff does not challenge Gipson's contention in this regard.

Based on this apparent consensus between the parties and the state of the appellate record, we

must presume that the court did not formally rule on Gipson's motion prior to granting plaintiff a

default judgment.


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No. 1-06-2363

        A court's failure to rule on a motion does not constitute a denial of the motion. See

Rodriguez v. Prisoner Review Board, 376 Ill. App. 3d 429, 432, 876 N.E.2d 659, 663 (2007) ("A

litigant's failure to obtain a ruling on a motion does not translate into a denial of the motion by the

court"); Commerce Trust Co. v. Air 1st Aviation Cos., 366 Ill. App. 3d 135, 142, 851 N.E.2d

131, 137 (2006); Herricane Graphics, Inc. v. Blinderman Construction Co., 354 Ill. App. 3d 151,

158, 820 N.E.2d 619, 626 (2004). Rather, "it is the responsibility of the party filing a motion to

request the trial judge to rule on it, and when no ruling has been made on a motion, the motion is

presumed to have been abandoned absent circumstances indicating otherwise." Rodriguez, 376

Ill. App. 3d at 433, 876 N.E.2d at 663, citing Commerce Trust Co., 366 Ill. App. 3d at 142, 851

N.E.2d at 137; Herricane Graphics, 354 Ill. App. 3d at 158, 820 N.E.2d at 626.

        Thus, we return to the question of whether Gipson's failure to attend a scheduled court

date on her motion to quash service of summons precluded her from reasserting a jurisdictional

challenge 33 days after a default judgment. Plaintiff would presumably contend that Gipson's

conduct in filing an objection to jurisdiction and then failing to appear for a status date constituted

a waiver of the objection and a submission to court's jurisdiction which would validate any

potential defect in the court's personal jurisdiction.

        However, as stated by our supreme court, "a party who submits to the court's jurisdiction

does so only prospectively and the appearance does not retroactively validate orders entered prior

to that date." In re Marriage of Verdung, 126 Ill. 2d at 547, 535 N.E.2d at 820, citing J.C.

Penney Co. v. West, 114 Ill. App. 3d 644, 647, 449 N.E.2d 188, 190 (1983); see also Sullivan v.

Bach, 100 Ill. App. 3d 1135, 1142, 427 N.E.2d 645, 651 (1981); Sarkissian, 201 Ill. 2d at 132,


                                                  -9-
No. 1-06-2363

776 N.E.2d at 217 (Thomas, J., joined by Fitzgerald, J., dissenting). In West, a default judgment

was entered against defendant in February of 1978. West, 114 Ill. App. 3d at 645, 449 N.E.2d at

189. In June, defendant's first of three attorneys filed a special appearance and was granted leave

to file a motion to quash service of summons. West, 114 Ill. App. 3d at 645, 449 N.E.2d at 189.

A hearing was scheduled for September, but defendant did not appear and no order was entered.

West, 114 Ill. App. 3d at 645, 449 N.E.2d at 189. In June of the next year, defendant, through a

second attorney, filed a section 72 petition (a precursor to section 2-1401) in which he argued to

vacate the default judgment by asserting a defense on the merits without challenging the service of

process. West, 114 Ill. App. 3d at 645, 449 N.E.2d at 189. The court denied the petition. West,

114 Ill. App. 3d at 645, 449 N.E.2d at 189. In February of the next year, a third attorney made a

special appearance on behalf of defendant to quash service of summons. West, 114 Ill. App. 3d at

645, 449 N.E.2d at 189. The court granted defendant's motion to quash, but subsequently

vacated that order upon plaintiff's motion which argued that defendant had submitted himself to

the jurisdiction of the court by presenting his section 72 petition. West, 114 Ill. App. 3d at 645-

46, 449 N.E.2d at 189.

       On appeal, the court noted:

                "[T]he law is clear in Illinois that ' "[a] judgment, order or decree entered

       by a court which lacks jurisdiction of the parties or of the subject matter *** is

       void, and may be attacked at any time or in any court, either directly or

       collaterally." ' [Citations.] Additionally, we note that service of summons upon a

       defendant is essential to create personal jurisdiction of the court. [Citation.]


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No. 1-06-2363

       However, it is well settled in Illinois that a party challenging the personal

       jurisdiction of the court must limit his appearance solely to that purpose and that

       where the party raises additional defenses, he has entered a general appearance and

       submitted himself to the court's jurisdiction. [Citations.]" West, 114 Ill. App. 3d at

       646, 449 N.E.2d at 190.

       The court further stated: "Illinois courts have held that where a judgment is void when

entered, it remains void notwithstanding subsequent general appearances and, that a general

appearance does not serve to validate retroactively a judgment void when entered." West, 114 Ill.

App. 3d at 646, 449 N.E.2d at 190. The court then held that although defendant's section 72

petition, which alleged a meritorious defense, constituted a general appearance, that general

appearance submitted defendant to the court's jurisdiction only prospectively and would not act to

validate a previous order entered without jurisdiction. West, 114 Ill. App. 3d at 647, 449 N.E.2d

at 190. Accordingly, the court remanded for a determination of whether defendant had been

served and directed the trial court to set aside the judgment as void if it found that there was no

service. West, 114 Ill. App. 3d at 648, 449 N.E.2d at 190.

       In reaching its determination, the court in West distinguished and otherwise disagreed

with the previous appellate decision in Washington v. Clayter, 91 Ill. App. 3d 489, 414 N.E.2d

1085 (1980). West, 114 Ill. App. 3d at 648, 449 N.E.2d at 191.       In Washington, plaintiff

brought suit against his former attorney for professional negligence. Washington, 91 Ill. App. 3d

at 491, 414 N.E.2d at 1087. Summons was issued and purportedly served, but defendant did not

answer or otherwise appear. Washington, 91 Ill. App. 3d at 491, 414 N.E.2d at 1087. Plaintiff


                                                -11-
No. 1-06-2363

thereafter sent a notice of motion for a default to defendant and, on the date scheduled for the

motion, defendant specially appeared and maintained that he had not been properly served.

Washington, 91 Ill. App. 3d at 491, 414 N.E.2d at 1087. The court granted defendant 14 days to

file affidavits in support of his contention or, in the alternative, to file responsive pleadings.

Washington, 91 Ill. App. 3d at 491, 414 N.E.2d at 1087. The court also continued plaintiff's

motion until May 31, which happened to be a court holiday. Washington, 91 Ill. App. 3d at 491,

414 N.E.2d at 1087. Upon discovering the scheduling error, plaintiff sent defendant a letter

announcing the rescheduling of the court date to May 28. Washington, 91 Ill. App. 3d at 491,

414 N.E.2d at 1087. Defendant did not appear on that date or otherwise comply with the court's

order to file affidavits, but only again appeared some 16 months later after the court had granted

plaintiff a default judgment and the case had been set for trial on the issue of damages.

Washington, 91 Ill. App. 3d at 492, 414 N.E.2d at 1087.

        On appeal, the court found that the trial court's order directing defendant to file affidavits

within 14 days obligated defendant to present his claims in the time allowed in order to preserve

his contentions. Washington, 91 Ill. App. 3d at 494, 414 N.E.2d at 1089. The court stated:

        "If the orders of a court are to have any binding force, disregard of court-ordered

        time limits cannot be condoned, particularly where employed to defeat a

        subsequent judgment. Under defendant's theory of the case, he would have the

        right to repeatedly raise a collateral defense without fulfilling his obligation to

        present evidence thereon. Quite the contrary, once a collateral defense is raised, it

        surely must be pursued, or else be held abandoned. Accordingly, defendant's


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       noncompliance with the court order *** and attendant failure to follow through

       with his claim of improper service manifested an abandonment of his contentions.

       As a consequence, the continuation of the cause to default was proper under the

       circumstances presented by the instant case." Washington, 91 Ill. App. 3d at 494,

       414 N.E.2d at 1089.

       In its discussion of Washington, the court in West distinguished its facts by noting that the

Washington defendant moved to quash service of summons prior to the entry of the default

judgment and then failed to appear or file affidavits as required by the court's order. West, 114

Ill. App. 3d at 648, 449 N.E.2d at 191. In contrast, the West court noted that its defendant was

never ordered to file affidavits and no order was entered on the date defendant was supposed to

present his motion to quash service of summons. The court further stated that if the judgment

was void, "nothing defendant did subsequent to that judgment could retroactively validate it."

West, 114 Ill. App. 3d at 648, 449 N.E.2d at 191.

       While the instant case is factually more similar to Washington than it is to West, we

nevertheless find the law contained in West, which, as previously noted, has been cited with

approval by our supreme court in In re Marriage of Verdung, to be ultimately controlling.

Washington confirms that an abandonment of a challenge to jurisdiction can, at a certain point,

become a general appearance. We recognize that a party should not be allowed to disregard

court orders without consequence. However, the fundamentals of personal jurisdiction and

voidness as expressed in West and confirmed by our supreme court in In re Marriage of Verdung

(see also Sullivan, 100 Ill. App. 3d at 1142, 427 N.E.2d at 651; Sarkissian, 201 Ill. 2d at 132, 776


                                                -13-
No. 1-06-2363

N.E.2d at 217 (Thomas, J., joined by Fitzgerald, J., dissenting)) cannot be preempted. Thus,

although an abandonment of an objection to jurisdiction may constitute a waiver of that objection

and thereby subject a party to a court's jurisdiction as if a general appearance had been filed, that

jurisdiction can only be applied prospectively.

        In order for the court to have had personal jurisdiction in this case at the time of its entry

of default judgment, either Gipson must have been properly served (an issue which has not yet

been subjected to the scrutiny of a hearing), or, alternatively, Gipson must have submitted herself

to the court's personal jurisdiction over her. See In re Marriage of Verdung, 126 Ill. 2d at 547,

535 N.E.2d at 820. The point at which a defendant's failure to sustain an objection to jurisdiction

becomes a submission to jurisdiction is unclear. In Washington, the court found that the

defendant effectively submitted to the court's jurisdiction after a 16-month absence from the

litigation and after having been ordered to file affidavits in support of his jurisdictional objection.

Washington, 91 Ill. App. 3d at 494, 414 N.E.2d at 1089. In this case, because a general

appearance cannot be applied to retroactively validate a judgment entered without jurisdiction

(see In re Marriage of Verdung, 126 Ill. 2d at 547, 535 N.E.2d at 820; West, 114 Ill. App. 3d at

647, 449 N.E.2d at 190), in order for Gipson's "abandonment" of her objection to jurisdiction to

validate the circuit court's entry of default judgment, that abandonment must have been complete

prior to the entry of the default judgment. In other words, Gipson's abandonment must have been

complete once she failed to appear at the scheduled status date on July 5, 2006, since the circuit

court, then and there, immediately entered a final judgment confirming the foreclosure and sale of

her property without any postponement. While we have doubts that a defendant who misses a


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status date on a motion to quash service of summons can immediately be said to have abandoned

her objection to jurisdiction (cf. Freeborn & Peters v. Professional Seminars Associates, Inc., 176

Ill. App. 3d 714, 719, 531 N.E.2d 806, 819 (1988) (finding that "substantial injustice" occurred

when court entered a default judgment on the day defendant's attorney withdrew)), we choose not

to rule on this issue since it has not been addressed by the parties or the court below.

       We finally address plaintiff's contention that Gipson is precluded from relief by section 2-

1401(e) of the Code of Civil Procedure (735 ILCS 5/2-1401(e) (West 2004)) because the subject

property has been sold to a third party that was not a party to the original action. We allowed

that third party, Third Coast Holders, to file an intervenor's brief in this appeal. On June 29,

2007, we issued our initial opinion in this case and remanded to the trial court to determine

whether Gipson had abandoned her objection to personal jurisdiction and whether Third Coast

Holders was protected by section 2-1401(e). However, before the mandate issued, plaintiff and

Third Coast Holders filed petitions for rehearing with supporting briefs arguing that section 2-

1401(e) applied because there was no evidence of a lack of jurisdiction in the record at the time

the judicial sale was held. Plaintiff and intervenor argued that once the sale was completed, Third

Coast Holders became the holder of a certificate of sale and section 2-1401(e) then applied to

protect its right to complete its purchase of the property notwithstanding Gipson's subsequently

filed motions challenging jurisdiction. Concurrent with its petition for rehearing, plaintiff moved

to supplement the appellate record to include the certificate of sale. We must, however, deny

plaintiff’s motion to supplement the appellate record to include the certificate of sale, since it does

not conform to the requirements of Supreme Court Rule 324 (155 Ill. 2d R. 324) and Rule 19 of


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the Administrative Rules of the Appellate Court, First District (App. Ct. First Dist. R. 19), which

requires such records to be bound and certified by the clerk of the circuit court. However, we

allowed the petition for rehearing for the following reasons.

        Section 2-1401(e) states:

                "(e) Unless lack of jurisdiction affirmatively appears from the record

        proper, the vacation or modification of an order or judgment pursuant to the

        provisions of this Section does not affect the right, title or interest in or to any real

        or personal property of any person, not a party to the original action, acquired for

        value after the entry of the order or judgment but before the filing of the petition,

        nor affect any right of any person not a party to the original action under any

        certificate of sale issued before the filing of the petition, pursuant to a sale based

        on the order or judgment." 735 ILCS 5/2-1401(e) (West 2004).

        This section has been interpreted as "intending to protect bona fide purchasers for value."

In re Application of the Cook County Collector for Judgment & Sale Against Lands & Lots

Returned Delinquent for Nonpayment of General Taxes for the Year 1985 & Petition for Tax

Deed of Leslie C. Barnard, 228 Ill. App. 3d 719, 734, 593 N.E.2d 538, 549 (1991). Intervenor,

however, contends that although a purchaser may need to be bona fide to enjoy the protections

of section 2-1401(e), that requirement does not also apply to a holder of a certificate of sale. We

disagree. Although section 2-1401(e) refers to the rights of a person who acquires property for

value and separately refers to the rights of a person under a certificate of sale, we do not believe

this distinction indicates that while a purchaser must act in good faith, a holder of a certificate of


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No. 1-06-2363

sale bears no such burden. In fact, the Joint Committee Comments of 1955 explained subsection

(e) (which was identical to the current subsection (e) of the statute) without making any such

distinction:

                "This subsection [e] is intended to protect a bona fide purchaser of

        property from the effects of an order setting aside a judgment or decree affecting

        the titled to the property if he was not a party to the original proceeding, when

        lack of jurisdiction does not affirmatively appear from the record proper. Bona

        fide purchasers have long been protected in such cases, the courts having held that

        such purchasers ‘may rely upon the decree the same as any other stranger to the

        adjudication.’ [Citation.] This subsection is merely confirmatory of these decisions

        and is included to promote the merchantability of property affected by court

        judgments and decrees." Ill. Ann. Stat., ch. 110, par. 2-1401, Joint Committee

        Comments, at 603-04 (Smith-Hurd 1983).

Thus, although a holder of a certificate of sale has not completed his purchase but has only made

an irrevocable offer to purchase the property (see Commercial Credit Loans, Inc. v. Espinoza,

293 Ill. App. 3d 923, 927, 689 N.E.2d 282, 285 (1997)), the committee notes to section 2-

1401(e) indicate that such a person should be protected in the same manner as a purchaser. Thus,

in order for Third Coast Holders to be entitled to the protection of section 2-1401(e), it must

have been a bona fide holder of a certificate of sale.

        The time at which to determine whether a holder of a certificate of sale is bona fide is not

the date the judicial sale is confirmed but the date the certificate is issued. The plain language of


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No. 1-06-2363

section 2-1401(e) states that the vacation or modification of an order upon a party's petition for

relief from judgment will not affect a person's rights "under any certificate of sale issued before

the filing of the petition [for relief from judgment]." (Emphasis added.) 735 ILCS 5/2-1401(e)

(West 2004). Thus, if a bidder at a judicial sale following a mortgage foreclosure learns that the

mortgagor has brought a petition for relief from judgment before that bidder obtains the

certificate of sale, section 2-1401(e) will not act to protect the bidder's rights in the property if he

subsequently obtains the certificate of sale. Only matters prior to the issuance of the certificate

can affect whether a holder of a certificate of sale can be deemed not to be bona fide.

        Thus, if Third Coast Holders was a bona fide holder of the certificate of sale, its interests

in the property cannot be subordinated by any interests of Gipson. A purchaser will not be

considered bona fide if he has "constructive notice of an outstanding title or right in another

person." In re Application of the Cook County Collector, 228 Ill. App. 3d at 734, 593 N.E.2d at

549. "In addition, a purchaser 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." In re

Application of the Cook County Collector, 228 Ill. App. 3d at 734, 593 N.E.2d at 549. The term

"bona fide" is defined as "In or with good faith, honestly, openly, and sincerely; without deceit or

fraud." Black's Law Dictionary at 177 (6th ed. 1990).

        As noted, section 2-1401(e) states that a petition for relief from judgment can only be

applied against a person who has obtained a certificate of sale if a "lack of jurisdiction

affirmatively appears from the record proper." 735 ILCS 5/2-1401(e) (West 2004). This

determination requires courts to review the whole record. See Bank of New York v. Unknown


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Heirs & Legatees, 369 Ill. App. 3d 472, 477, 860 N.E.2d 1113, 1118 (2006).

       Here, the record reflects that Gipson was personally served on September 29, 2005. On

January 17, 2006, the trial court granted plaintiff's motions for foreclosure and order of sale. On

May 2, 2006, the judicial sale took place and Third Coast Holders was the high bidder. Gipson

made her first contact with the court three days later on May 5, 2006, when she filed her motion

to quash service of summons. In that motion, Gipson alleged that she had not been served, that

she first learned of the foreclosure action on April 29, 2006, when a representative of plaintiff

called her, and that she had previously been in contact with plaintiff in attempts to reinstate her

mortgage after temporarily being unable to pay her mortgage. Thus, if, as plaintiff and intervenor

contend, Third Coast Holders became the holder of the certificate of sale on May 2, 2006, the

date of the judicial sale, Gipson would have no further claim to the property as long as Third

Coast Holders was bona fide as of that date.

       However, the date Third Coast Holders became the holder of the certificate of sale is not

apparent in the appellate record as now presented since, as noted, we felt compelled to deny

plaintiff’s motion to supplement the record on appeal with an uncertified document.

       Consequently, pursuant to our power under Supreme Court Rule 366 (155 Ill. 2d R. 366),

we remand to the circuit court to ascertain whether Third Coast Holders received the certificate

of sale and, if so, whether it was bona fide as of that date. If both propositions are true, then the

judgment of the circuit court stands affirmed. If either is untrue, then the judgment is reversed for

the reasons heretofore discussed. In that event, the court shall determine whether Gipson

abandoned her objection to jurisdiction (a finding that we have already found to be tenuous under


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the state of this record on appeal). If the circuit court finds, from the facts presented, that Gipson

is not precluded from challenging the court’s in personam jurisdiction, then the court may

proceed to substantively resolve Gipson’s jurisdictional objection.

       Remanded.

       FITZGERALD SMITH, J., and McNULTY, J., concur.




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