{ "id": 4267178, "name": "BANK OF NEW YORK, Acting Solely as Trustee for EQCC Trust 2001-2, Plaintiff-Appellee, v. UNKNOWN HEIRS AND LEGATEES, if any, of Ruth Hatch, a/k/a Ruth Slater, et al., Defendants-Appellants (Sheila Portlock et al., Intervenors-Appellees)", "name_abbreviation": "Bank of New York v. Unknown Heirs & Legatees", "decision_date": "2006-12-05", "docket_number": "No. 1\u201405\u20142299", "first_page": "472", "last_page": "478", "citations": [ { "type": "official", "cite": "369 Ill. App. 3d 472" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "591 N.E.2d 942", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "parenthetical": "protection under section 2 - 1401(e) of the Code is not available where a lack of jurisdiction affirmatively appears from the record" } ], "opinion_index": 0 }, { "cite": "228 Ill. App. 3d 295", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5220904 ], "year": 1992, "pin_cites": [ { "page": "304", "parenthetical": "protection under section 2 - 1401(e) of the Code is not available where a lack of jurisdiction affirmatively appears from the record" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/228/0295-01" ] }, { "cite": "747 N.E.2d 524", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "pin_cites": [ { "parenthetical": "where a trial court does not have personal jurisdiction over a party, any order or judgment entered against him is void ab initio and subject to direct or collateral attack at any time" } ], "opinion_index": 0 }, { "cite": "321 Ill. App. 3d 360", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 132363 ], "year": 2001, "pin_cites": [ { "page": "367", "parenthetical": "where a trial court does not have personal jurisdiction over a party, any order or judgment entered against him is void ab initio and subject to direct or collateral attack at any time" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/321/0360-01" ] }, { "cite": "332 N.E.2d 557", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "30 Ill. App. 3d 235", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2625857 ], "year": 1975, "pin_cites": [ { "page": "240" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/30/0235-01" ] }, { "cite": "458 N.E.2d 11", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "120 Ill. App. 3d 364", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3593758 ], "year": 1983, "pin_cites": [ { "page": "367" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/120/0364-01" ] }, { "cite": "497 N.E.2d 1156", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "113 Ill. 2d 294", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3173712 ], "year": 1986, "pin_cites": [ { "page": "313" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/113/0294-01" ] }, { "cite": "726 N.E.2d 621", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "311 Ill. App. 3d 1053", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 415290 ], "year": 2000, "pin_cites": [ { "page": "1056" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/311/1053-01" ] }, { "cite": "592 N.E.2d 98", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "227 Ill. App. 3d 453", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5795448 ], "year": 1992, "pin_cites": [ { "page": "455" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/227/0453-01" ] }, { "cite": "284 N.E.2d 449", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "6 Ill. App. 3d 20", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2465909 ], "year": 1972, "pin_cites": [ { "page": "27" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/6/0020-01" ] }, { "cite": "182 N.E. 764", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1932, "opinion_index": 0 }, { "cite": "350 Ill. 36", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5301705 ], "year": 1932, "pin_cites": [ { "page": "41" } ], "opinion_index": 0, "case_paths": [ "/ill/350/0036-01" ] }, { "cite": "392 N.E.2d 598", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "73 Ill. App. 3d 915", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3261218 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "917" }, { "page": "917" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/73/0915-01" ] }, { "cite": "376 N.E.2d 1029", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "59 Ill. App. 3d 923", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3357062 ], "weight": 3, "year": 1978, "pin_cites": [ { "page": "926" }, { "page": "927" }, { "page": "927", "parenthetical": "diligent inquiry required plaintiff to, among other things, make inquiries of defendants' neighbors" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/59/0923-01" ] } ], "analysis": { "cardinality": 679, "char_count": 14458, "ocr_confidence": 0.766, "pagerank": { "raw": 1.0872170713946955e-07, "percentile": 0.563947936732991 }, "sha256": "105d0f6242c7135ef98d0fb63b86cb9406aa22a6c21872a486d5f6dcb64f8bf2", "simhash": "1:e97e3d7f6e4c0cf4", "word_count": 2382 }, "last_updated": "2023-07-14T20:04:07.948493+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "BANK OF NEW YORK, Acting Solely as Trustee for EQCC Trust 2001\u20142, Plaintiff-Appellee, v. UNKNOWN HEIRS AND LEGATEES, if any, of Ruth Hatch, a/k/a Ruth Slater, et al., Defendants-Appellants (Sheila Portlock et al., Intervenors-Appellees)." ], "opinions": [ { "text": "JUSTICE HALL\ndelivered the opinion of the court:\nDefendant Jesse M. Hatch appeals, pro se, the trial court\u2019s order granting the motion to reconsider of plaintiff, Bank of New York, acting solely in its capacity as trustee for EquiCredit Corporation (EQCC) Trust 2001 \u2014 2, and the motion to vacate of interveners Sheila Port-lock and Dewey J. Hall. For the reasons that follow, we reverse and remand.\nThis appeal arises from proceedings relating to a foreclosure complaint filed by plaintiff bank. On July 28, 2003, plaintiff filed a complaint to foreclose a mortgage secured by residential property of the decedent Ruth Hatch, also known as Ruth Slater.\nThe complaint named as defendants the unknown heirs and legatees, if any, of Ruth Hatch, a/k/a Ruth Slater, unknown owners and nonrecord claimants. On November 7, 2003, plaintiff filed an affidavit as required by section 2 \u2014 206(a) the Code of Civil Procedure (Code) (735 ILCS 5/2 \u2014 206(a) (West 2004)), for service by publication. Plaintiff then served the unknown heirs of Ruth Hatch by publication in the Chicago Daily Law Bulletin on November 11, 18, and 25, 2003.\nOn December 4, 2003, defendant, an inmate currently serving a natural-life sentence at the Joliet Correctional Center, filed a pro se motion to dismiss the foreclosure complaint, alleging that he was one of Ruth Hatch\u2019s heirs (her son) and that service by publication was insufficient as to him because plaintiff failed to conduct a proper investigation to locate his whereabouts and effect personal service upon him prior to service by publication. Attached to the motion was an affidavit from defendant averring that he mailed a copy of the motion to plaintiffs attorneys\u2019 office.\nOn December 8, 2003, defendant wrote the clerk of the court inquiring as to the status of his motion to dismiss. On December 12, 2003, another of Ruth Hatch\u2019s sons, Hosie Hatch, filed an answer and appearance, along with an application to sue or defend as an indigent person.\nOn January 14, 2004, plaintiff mailed defendant a notice of motion advising him that the case was set for hearing in February 2004, at which time plaintiff would move for entry of orders for summary judgment, default, judgment of foreclosure and sale, and appointment of a foreclosure sale officer.\nOn February 3, 2004, defendant filed a supplemental motion to dismiss for insufficiency of service of process. In the supplemental motion, defendant argued that plaintiffs pleadings were not signed by an attorney of record and therefore should be stricken. He also argued that the action should be dismissed because the insufficient service defrauded defendants out of their right to be served with copies of the summons and complaint thereby preventing them from setting forth reasonable and informed answers and defenses.\nOn February 5, 2004, at a hearing on plaintiffs motion for judgment of foreclosure and sale, counsel for defendant\u2019s brother, Elijah R. Hatch, was granted leave to file substitute appearance on his behalf and given seven days to answer or otherwise plead. The matter was then continued to February 26, 2004.\nOn February 26, 2004, a judgment for foreclosure and sale and related orders were entered. On the same date, the trial court also entered summary judgment in favor of plaintiff and against Hosie Hatch and Elijah R. Hatch. The trial court entered the judgment for foreclosure and sale without ruling upon defendant\u2019s prior motion to dismiss and supplemental motion to dismiss.\nElijah R. Hatch was appointed the supervised administrator of Ruth\u2019s estate on April 8, 2004. On May 28, 2004, defendant again wrote the clerk of the circuit court inquiring as to whether his pro se motions to dismiss had been ruled upon and, if not, to alert the trial court to his inquiry and request for a ruling in the matter.\nOn July 13, 2004, the subject property was sold at auction to third-party bidder Thuruthikara Kurian for an amount in excess of the debt secured by the property. The judicial sale was approved by the trial court on August 19, 2004, with a 30-day stay on possession.\nOn September 7, 2004, defendant filed a motion to vacate the judgment of foreclosure and sale. On October 15, 2004, he filed a motion for hearing and/or ruling upon his motion for relief from judgment. The trial court maintained it first became aware of defendant\u2019s existence the first week of November 2004, when a letter from defendant postmarked September 28, 2004, made its way to the court.\nOn December 16, 2004, Thuruthikara Kurian sold the subject property to Sheila Portlock and Dewey J. Hall pursuant to a warranty deed.\nOn February 8, 2005, pursuant to section 2 \u2014 1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2 \u2014 1401 (West 2002)), the trial court granted defendant\u2019s motion for relief from judgment on the grounds that plaintiff failed in its obligation to make the court aware of defendant\u2019s existence. The trial court determined that plaintiff knew of defendant\u2019s existence prior to the judgment of foreclosure and sale, and as early as December 4, 2003, when it received defendant\u2019s pleadings, and yet had failed to serve defendant personally, make him a party defendant, or make the court aware of his existence. The trial court then vacated the judgment of foreclosure and sale declaring it void ab initio.\nIn response, the plaintiff filed a motion to reconsider, and purchasers Sheila Portlock and Dewey J. Hall were granted leave to intervene and to file their motion to vacate.\nOn May 31, 2005, the trial court granted the plaintiffs motion to reconsider and the intervenors\u2019 motion to vacate. The trial court determined that the intervenors\u2019 interest in the subject property was protected by section 2 \u2014 1401(e) of the Code (735 ILCS 5/2 \u2014 1401(e) (West 2002)), which protects bona fide purchasers of property from the effects of an order setting aside a judgment affecting title to the property if the purchasers were not parties to the original action and a lack of jurisdiction did not affirmatively appear in the record. Defendant now appeals.\nANALYSIS\nAs an initial matter, plaintiff requests that we strike defendant\u2019s brief because its length exceeds that allowed by Supreme Court Rule 341(a) (see 210 Ill. 2d R. 341(a)). In light of defendant\u2019s pro se status and our desire to decide this case on the merits rather than a technicality, we decline plaintiffs request.\nTurning to the merits, defendant raises a number of issues on appeal. However, based on our disposition of the case, we need only address one issue: whether the trial court obtained personal jurisdiction over defendant by publication prior to entry of the judgment of foreclosure and sale. For the reasons that follow, we find that the trial court failed to obtain such personal jurisdiction over defendant, and therefore, we reverse and remand.\nIn the trial court\u2019s order granting the plaintiff\u2019s motion to reconsider and the intervenors\u2019 motion to vacate, the court claimed to have properly obtained personal jurisdiction over defendant by relying on service by publication pursuant to section 2 \u2014 206(a) of the Code (735 ILCS 5/2 \u2014 206(a) (West 2004)).\nPersonal jurisdiction acquired by means of publication is only allowed in certain limited cases and then only after strict compliance with the statutory prerequisites governing such service. Bell Federal Savings & Loan Ass\u2019n v. Horton, 59 Ill. App. 3d 923, 926, 376 N.E.2d 1029 (1978). In order for a trial court to obtain personal jurisdiction over a defendant by publication, section 2 \u2014 206(a) of the Code requires a plaintiff to file an affidavit stating that the defendant \u201con due inquiry cannot be found *** so that process cannot be served upon him or her\u201d and \u201cstating the place of residence of the defendant, if known, or that upon diligent inquiry his or her place of residence cannot be ascertained.\u201d 735 ILCS 5/2 \u2014 206(a) (West 2004). Thus, due inquiry and due diligence are statutory prerequisites for service by publication. Home State Savings Ass\u2019n v. Powell, 73 Ill. App. 3d 915, 917, 392 N.E.2d 598 (1979).\nOur courts have determined that these statutory prerequisites are not intended as pro forma or useless phrases requiring mere perfunctory performance but, on the contrary, require an honest and well-directed effort to ascertain the whereabouts of a defendant by inquiry as full as circumstances permit. See Graham v. O\u2019Connor, 350 Ill. 36, 41, 182 N.E. 764 (1932); City of Chicago v. Leakas, 6 Ill. App. 3d 20, 27, 284 N.E.2d 449 (1972). Where the efforts to comply with these statutory provisions have been casual, routine, or spiritless, service by publication is not justified. Home State Savings Ass\u2019n, 73 Ill. App. 3d at 917; Bell Federal Savings & Loan Ass\u2019n, 59 Ill. App. 3d at 927.\nA defendant may challenge a plaintiffs section 2 \u2014 206(a) affidavit by filing an affidavit showing that upon due inquiry, he could have been found. Household Finance Corp. III v. Volpert, 227 Ill. App. 3d 453, 455, 592 N.E.2d 98 (1992). Upon such a challenge, a plaintiff must produce evidence establishing due inquiry. First Bank & Trust Co. v. King, 311 Ill. App. 3d 1053, 1056, 726 N.E.2d 621 (2000).\nThe record in this case reveals that no more than a cursory inquiry was made prior to plaintiff filing the affidavit for service by publication. The record indicates that plaintiff was in contact with at least two of the decedent\u2019s heirs, Hosie Hatch and Elijah R. Hatch, yet failed to question either of them as to defendant\u2019s existence or whereabouts prior to seeking service by publication.\nPlaintiff clearly failed to exercise the due inquiry and diligence required by section 2 \u2014 206(a) to permit service by publication upon defendant. See Bell Federal Savings & Loan Ass\u2019n, 59 Ill. App. 3d at 927 (diligent inquiry required plaintiff to, among other things, make inquiries of defendants\u2019 neighbors). Moreover, the trial court found that plaintiff knew of defendant\u2019s existence prior to the judgment of foreclosure and sale, as early as December 4, 2003, when it received defendant\u2019s pleadings, and yet failed to serve defendant personally, make him a party defendant, or make the court aware of his existence. Plaintiff\u2019s affidavit for service by publication does not affirmatively establish due inquiry and diligence and was therefore insufficient to give the trial court personal jurisdiction over defendant.\nWe also find the trial court erred in holding that the intervenors were bona fide purchasers of the subject property entitled to protection under section 2 \u2014 1401(e) of the Code (735 ILCS 5/2 \u2014 1401(e) (West 2002)). The trial court found that the intervenors\u2019 interest in the subject property was protected by section 2 \u2014 1401(e) of the Code, which protects bona fide purchasers of property from the effects of an order setting aside a judgment affecting title to the property if the purchasers were not parties to the original action and a lack of jurisdiction did not affirmatively appear from the record. We disagree with the trial court\u2019s finding on this issue, because the lack of jurisdiction affirmatively appears in the record such that the sale of the subject property to the intervenors should be set aside.\nIn determining whether a lack of jurisdiction is apparent from the record, reviewing courts look to the whole record, which includes the pleadings, the return on process, the jury verdict, and the court\u2019s judgment or decree. State Bank of Lake Zurich v. Thill, 113 Ill. 2d 294, 313, 497 N.E.2d 1156 (1986). In this case, the lack of jurisdiction affirmatively appears in the record in the form of plaintiffs defective affidavit and the allegations set forth in defendant\u2019s motions to dismiss for insufficiency of service, which were sufficient to put the intervenors on notice that service by publication on defendant might have been improper. A subsequent purchaser cannot be a bona fide purchaser for value if he has actual or constructive notice of the outstanding rights of other parties. City of Chicago v. Cosmopolitan National Bank, 120 Ill. App. 3d 364, 367, 458 N.E.2d 11 (1983). Moreover, 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 County Treasurer, 30 Ill. App. 3d 235, 240, 332 N.E.2d 557 (1975).\nIn the case at bar, the intervenors had constructive notice of defendant\u2019s interest in the subject property. The intervenors were bound to inquire into the nature and extent of the defendant\u2019s interest.\nIn conclusion, we find that the trial court failed to obtain personal jurisdiction over defendant by publication prior to entering the judgment of foreclosure and sale, and therefore the judgment was void ab initio. See In re Marriage of Schmitt, 321 Ill. App. 3d 360, 367, 747 N.E.2d 524 (2001) (where a trial court does not have personal jurisdiction over a party, any order or judgment entered against him is void ab initio and subject to direct or collateral attack at any time). In addition, the intervenors\u2019 interests in the subject property was not protected by section 2 \u2014 1401(e) of the Code because a lack of jurisdiction affirmatively appears from the record. See Pruitt v. Jockisch, 228 Ill. App. 3d 295, 304, 591 N.E.2d 942 (1992) (protection under section 2 \u2014 1401(e) of the Code is not available where a lack of jurisdiction affirmatively appears from the record). Consequently, we find that the trial court erred in granting the plaintiffs motion to reconsider and the intervenors\u2019 motion to vacate.\nAccordingly, the judgment of the circuit court of Cook County is reversed and the cause remanded to the court for further proceedings consistent with the views expressed herein.\nReversed and remanded.\nWOLFSON, EJ., and SOUTH, J., concur.\nIn his pro se appellant brief, defendant maintains he filed all his pleadings from prison.", "type": "majority", "author": "JUSTICE HALL" } ], "attorneys": [ "Jessie M. Hatch, appellant pro se.", "Pierce & Associates, PC., of Chicago (Jill D. Rein, of counsel), for appellee Bank of New York.", "Larson & Nierling, of Chicago (Donald W Nierling, of counsel), for appellees Sheila Portlock and Dewey J. Hall." ], "corrections": "", "head_matter": "BANK OF NEW YORK, Acting Solely as Trustee for EQCC Trust 2001\u20142, Plaintiff-Appellee, v. UNKNOWN HEIRS AND LEGATEES, if any, of Ruth Hatch, a/k/a Ruth Slater, et al., Defendants-Appellants (Sheila Portlock et al., Intervenors-Appellees).\nFirst District (2nd Division)\nNo. 1\u201405\u20142299\nOpinion filed December 5, 2006.\nJessie M. Hatch, appellant pro se.\nPierce & Associates, PC., of Chicago (Jill D. Rein, of counsel), for appellee Bank of New York.\nLarson & Nierling, of Chicago (Donald W Nierling, of counsel), for appellees Sheila Portlock and Dewey J. Hall." }, "file_name": "0472-01", "first_page_order": 488, "last_page_order": 494 }