Supreme Court Summaries

Opinions filed March 20, 2014




BAC Home Loans Servicing, LP, v. Mitchell  2014 IL 116311



Appellate citation: 2013 IL App (1st) 121713-U.



      JUSTICE KILBRIDE delivered the judgment of the court, with opinion.

      Chief Justice Garman and Justices Freeman, Thomas, Karmeier, Burke, and Theis concurred in the judgment and opinion.


      Kim Mitchell, the defendant in this case, is the debtor on a $75,400 promissory note secured by a mortgage on her home in Chicago. In 2009, approximately four years after she executed the note to Countrywide Home Loans, Inc., its successor, BAC Home Loans Servicing, LP, became the plaintiff in this case by filing a complaint in the circuit court of Cook County to foreclose the mortgage.

      A special process server was employed who produced an affidavit stating that the summons and complaint were left at the debtor’s residence with her daughter, Michelle Foreman, who lived there and who was over 13 years old. A default judgment was entered in 2010. Defendant debtor would later allege that she was never served, and she filed an affidavit to this effect, stating that her only child was a son and that his name was William Mitchell. However, these matters were not brought forward until October 12, 2011, when the debtor filed an appearance and a postjudgment motion to vacate the circuit court’s September 14, 2011, order confirming the report of sale and distribution and for possession. Although plaintiff creditor would then acknowledge that the substituted service which had been attempted was defective as not in compliance with statute, plaintiff creditor alleged that, by this time (i.e., in a postjudgment motion to vacate the order confirming the sale), the debtor had waived all objections to the circuit court’s personal jurisdiction over her. The circuit court agreed and denied the debtor’s motion to quash the order confirming the sale. The appellate court affirmed.

      The appellate court noted that the debtor had failed to comply with the statutory requirements for challenging personal jurisdiction—she had not filed a motion to dismiss for lack of jurisdiction or a motion to quash service of process. That reviewing court then opined that there had been a waiver which operated both prospectively and retroactively and that, thus, the debtor had waived any jurisdictional challenge to the circuit court’s orders entered prior to her initial postjudgment motion to vacate.

      In this decision, the Supreme Court of Illinois held that a party’s waiver of personal jurisdiction is prospective only and does not serve to retroactively validate orders entered without personal jurisdiction. The parties had disputed the impact of a 2000 statutory amendment on this question, and different views on this matter had been expressed in the appellate court. Prior to this amendment, case law had held that a judgment that was void when entered remained void, despite a later submission by the party to the court’s jurisdiction. The supreme court said that it is not apparent from the language of the amendment that the legislature intended to change this established case law. If anything, the amendment was intended to provide additional protection to defendants objecting to the assertion of personal jurisdiction over them. The supreme court said that the legislature did not intend to adopt a rule allowing a defendant’s waiver to retroactively validate orders entered without personal jurisdiction. The revised statute at issue here should therefore be viewed as codifying the law as it existed before the amendment. Since the orders entered prior to October 12, 2011, must be vacated, the cause was remanded to the circuit court for further proceedings.

      The circuit and appellate courts were reversed.