Litigation Law Roundup

Sharp  Thinking

No. 96    Perspectives on Developments in the Law from The  Sharp Law Firm, P.C.     August  2013

Publication Service on Known Incompetent Violates Due Process

            Service of process upon a person known to have been adjudicated incompetent to manage his affairs violates due process, a panel in the Appellate Court’s First District has held.

            In O’Halloran v. Luce, 2013 IL App (1st) 113735, the panel said that to satisfy due process, “notice must be reasonably calculated ‘to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.’” Noting there was no evidence that the incompetent even lived in the area where publication occurred, the court went on to hold that because of the adjudication of disability, “even if he had seen the published notice, he likely would not have understood what it meant.”  Accordingly, “service by publication cannot be reasonably calculated to apprise an individual in Luce’s circumstances of the legal ramifications of a lawsuit.”  The court vacated the resulting judgment against the incompetent and sent the case back for further proceedings.

Service Return Not Conclusive on Agent’s Authority

            When a corporation is served with process, the agent served must have actual authority to accept service and the return of the process server is not conclusive as to that agency, a panel in the Appellate Court’s First District has held.

            Ruling in MB Fin. Bank, N.A. v. Ted & Paul, LLC, 2013 IL App (1st) 122077, the panel said that whether someone is a corporate agent for service of process issues is a factual question and the usual rules of deference to the service return do not apply.  It contrasted service upon an individual, where it said an uncorroborated affidavit was insufficient to overcome the service return even though it was claimed that that return was incorrect as to the defendant’s gender.

Failure To Attach Rule 222 Affidavit Does Not Void Judgment

            Failure of a plaintiff to attach to his complaint an affidavit under Illinois Supreme Court Rule 222 does not make the subsequent default judgment void and attackable outside the two-year period of 735 ILCS 5/2-1401(c), a panel in the Appellate Court’s First District has held.

            Rule 222(b) requires a money-damage plaintiff to attach to the initial pleading an affidavit that the total of money damages sought does or does not exceed $50,000.  The purpose is to govern applicability of Supreme Court rules for limited and simplified discovery in cases where less than $50,000 is at issue.

            Noting that the “void judgment” exception to the two-year bar of § 2-1401(c) applies only where the judgment was entered “without personal or subject matter jurisdiction or the inherent power to make or enter the judgment involved,” Dovalina v. Conley, 2013 IL App (1st) 103127, held that the lack of a Rule 222 affidavit did not fit within that doctrine and at most made the resulting judgment “voidable, not void.”

Misnomer, Not Mistaken Identity, Justifies Relief

            A plaintiff’s misnaming of itself in forcible entry and detainer papers against a poaching resident who had no contact with it was excusable, the Appellate Court’s First District has reasoned.  In U.S. Bank N.A. v. Luckett, 2013 IL App (1st) 113678, a lender sought to evict persons whom it found to be in possession of the premises after it had purchased them at its foreclosure sale.  However, due to a word processing error, the papers omitted the term “U.S.” at the outset of its name and purported to proceed on behalf of “Bank National Association”.  Rejecting defendants’ attempts to seize upon the error to defeat the action, the panel noted courts are more willing to allow relief when the issue is one of misnomer than when it is one of mistaken identity.  See Sharp Thinking No. 79 (Dec. 2012); No. 17 (Feb. 2009); No. 8 (May 2008).

Even Sale and Re-Sale Don’t Protect Void Judgment

            Not even the fact that the property has been sold and re-sold prevents vacation of the underlying default judgment and sale if those steps occurred without proper service of summons and complaint upon defendants, a panel in the Appellate Court’s First District has ruled.

            The court reasoned that a judgment entered without jurisdiction over the parties is void and that voidness cannot be overcome either by the passage of time or by subsequent steps such as the sale.  It distinguished U.S. Bank N.A. v. Prabhakaran, 2013 IL App (1st) 111224 (see Sharp Thinking No. 89 (May 2013)), as not involving a judgment void for lack of proper service of process.  MB Fin. Bank, N.A. v. Ted & Paul, LLC, 2013 IL App (1st) 122077.

Local Federal Court Rules Need Not Be Strictly Enforced

            Local federal court “rules” are perhaps more properly characterized as guidelines under a recent decision of the Seventh Circuit Court of Appeals.

            In Modrowski v. Pigatto, 712 F.3d 1166 (7th Cir. 2013), the court said a trial court has discretion whether to enforce local rules strictly.  “[L]itigants have no right to demand strict enforcement of local rules by district judges,” the panel said.  It said that unless the trial court enforces or relaxes the rules unequally, the decision “to overlook any transgression . . . is left to the district court’s discretion.” 

Request for Order Submits Movant to Court’s Jurisdiction

            An application to the court for a ruling or an order is a “motion,” and a non-party who makes one thereby submits herself to the jurisdiction of the court even if she has not been served with process, a panel in the Appellate Court’s First District has held.

            In re Estate of Burmeister, 2013 IL App (1st) 121776, was a probate matter in which the executor also was trustee of a trust.  After the court ordered her to make a distribution from the trust, she claimed she was not a party to the probate case in her capacity as trustee and that the order hence was invalid.  Noting that her prior court papers had sometimes referred to her as trustee, the panel said her previous application to the trial court for a ruling on a trust matter waived the requirement of personal service to bring her as trustee into the case.

                                                                    –  John T. Hundley, jhundley@lotsharp.com, 618-242-0246

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