BAC Home Loans Servicing, LP v. Mitchell
Annotate this CaseMitchell executed a promissory note, secured by a mortgage on her Chicago home. Four years later, the lender filed a complaint to foreclose the mortgage. The special process server’s affidavit described substituted service: process was left at Mitchell’s residence with her daughter, Foreman, who lived at the residence. Mitchell did not answer. The lender mailed notice of intent to move for judgment of foreclosure and sale on June 9, 2010. On June 3, the lender moved for an order of default. On June 9, the court granted the motions. A notice of sale was mailed to Mitchell’s address and a judicial sale was held on September 13. On August 2, 2011, the lender sought an order of confirmation. Notice of the motion was mailed to Mitchell. The circuit court confirmed the sale on September 14. On October 12, Mitchell filed an appearance and a motion to vacate the order, asserting that “to the best of her knowledge” she was never served, had not received notice of the motion for default judgment, had been informed that a loan modification was approved, and did not receive notice of the September 14 order. She later withdrew her motion and moved to quash the order or, in the alternative, for relief from judgment under the Code of Civil Procedure, 735 ILCS 5/2-1401, and the Illinois Mortgage Foreclosure Law, 735 ILCS 5/15-15083. Mitchell asserted her only child is a son and she does not know anyone named Foreman. The circuit court denied the motion. The lender subsequently argued that Mitchell waived objections to jurisdiction by filing a post-judgment motion to vacate. The appellate court noted that failure to comply with statutory requirements results in waiver of “all objections to the court’s jurisdiction over the party’s person” and that Mitchell’s waiver “worked prospectively and retroactively.” The Illinois Supreme Court reversed, holding that waiver of personal jurisdiction is prospective only and does not serve to validate retroactively orders entered without personal jurisdiction.
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