ABN Amro Mortgage Group, Inc. v. McGahan

Docket No. 107954.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
ABN AMRO MORTGAGE GROUP, INC., et al., Appellees, v.
NONA L. McGAHAN et al., Appellants.
Opinion filed June 4, 2010.
JUSTICE BURKE delivered the judgment of the court, with
opinion.
Chief Justice Fitzgerald and Justices Freeman, Thomas, Kilbride,
Garman, and Karmeier concurred in the judgment and opinion.
OPINION
The question at issue here is whether a mortgagee must name a
personal representative for a deceased mortgagor in a mortgage
foreclosure proceeding in order for the circuit court to acquire subject
matter jurisdiction. For the reasons that follow, we conclude that it
must.
Background
This appeal involves two cases, ABN AMRO Mortgage Group,
Inc. v. McGahan and Charter One Bank v. Hunter. The facts of each
are set forth below.
ABN AMRO Mortgage Group, Inc. v. McGahan
In 2005, ABN AMRO (ABN) provided a loan to Nona McGahan,
who executed a note secured by a mortgage on her property located
in Chicago. On May 1, 2006, McGahan defaulted. On August 30,
ABN filed a complaint in the circuit court of Cook County for
foreclosure pursuant to the Illinois Mortgage Foreclosure Law (735
ILCS 5/15–1101 et seq. (West 2004)). The complaint named
McGahan, unknown heirs, and unknown owners. Unbeknownst to
ABN, McGahan had died prior to the filing of this complaint.
On October 11, 2006, after learning from a special process server
that McGahan was deceased, ABN filed a motion requesting
additional time to determine whether a probate estate had been
opened on behalf of McGahan. Thereafter, ABN was granted leave to
file a petition to name a personal representative on behalf of
McGahan.
On November 29, 2006, ABN advised the court that, upon further
consideration, it did not intend to name a personal representative and
requested leave to withdraw its earlier motion. Thereafter, the circuit
court dismissed ABN’s complaint pursuant to its order entered on
November 2, 2006, in Wells Fargo v. McQueen, No. 05–CH–12846
(November 2, 2006).
Wells Fargo v. McQueen was a mortgage foreclosure action. As
in this case, the mortgagor, Allen McQueen, died prior to the filing
of the complaint. In its decision in the Wells Fargo case, the circuit
court noted that, generally, a circuit court lacks subject matter
jurisdiction when a lawsuit is filed against a deceased person because
such a suit is a nullity. To avoid this rule and confer jurisdiction on
the circuit court, a plaintiff may proceed under section 13–209 of the
Code of Civil Procedure and substitute the deceased party’s personal
representative. 735 ILCS 5/13–209(c) (West 2004). However, Wells
Fargo, the mortgagee, argued this rule did not apply because
foreclosure proceedings are in rem actions and it is unnecessary to
name a human defendant, i.e., the mortgagor, in such actions.
The circuit court acknowledged there were cases in Illinois, dating
back to 1835, holding that foreclosure proceedings are in rem actions.
However, the court noted that in most cases this conclusion was
reached without discussion or explanation. The circuit court also
noted that, in a true in rem proceeding, the property itself is the
-2-
defendant. The court then gave modern-day examples of a true in
rem action, including civil forfeiture and proceedings against vessels
under maritime law.
The circuit court then discussed quasi in rem proceedings, and
citing Austin v. Royal League, 316 Ill. 188 (1925), found that a quasi
in rem proceeding describes the modern-day foreclosure action. The
circuit court noted that no authority had reconciled the discussion of
the differences between in rem and quasi in rem actions, set forth in
Austin, with older cases stating foreclosures were in rem. The circuit
court concluded that foreclosure actions are better characterized as
quasi in rem.
The circuit court then addressed the consequences of concluding
that a foreclosure is quasi in rem. First, the court noted that mortgage
foreclosures were adversarial and, pursuant to the Mortgage
Foreclosure Law, the mortgagor is a necessary party who has the right
to defend against the action. See 735 ILCS 5/15–1501 (West 2004).
However, the circuit court found that the Mortgage Foreclosure Law
does not address the consequences of a mortgagor’s death and,
therefore, it had to look to the rules applicable to civil actions
generally. The court revisited the rule that a lawsuit against a
deceased person is a nullity. The circuit court found there was nothing
in Illinois law to indicate foreclosure actions were exempt from this
general rule.
Turning to section 13–209 of the Code of Civil Procedure (735
ILCS 4/13–209(c) (West 2004)), the provision governing the
appointment of personal representatives, the circuit court considered
whether a foreclosure was an “action” within the meaning of section
13–209, and found that previous cases had answered this question in
the affirmative. Thus, the circuit court concluded that a mortgagee is
required to name a personal representative for a deceased mortgagor
in order for the circuit court to obtain subject matter jurisdiction. The
circuit court noted also that a mortgagee could, alternatively, proceed
under the Probate Act as it was an “interested person” like any other
creditor. See 755 ILCS 5/1–2.11(West 2004).
In light of the decision in the Wells Fargo case, the circuit court
held in the McGahan case that, because ABN failed to name a
personal representative as a substitute for McGahan, it lacked subject
matter jurisdiction. Accordingly, ABN’s complaint was dismissed.
-3-
Charter One Bank v. Hunter
The pertinent facts of the Hunter case are essentially the same as
in the McGahan case. Margaret Hunter executed a note securing a
mortgage on her property in 2002. Charter One Bank (Charter One)
filed a complaint for foreclosure in 2006. After learning that Hunter
was deceased, Charter One was granted leave to file an amended
complaint to name as defendants unknown owners, nonrecord
claimants, and unknown heirs and devisees. Subsequently, the circuit
court entered a judgment of default against defendants and an order
for foreclosure and sale. However, thereafter, pursuant to its decision
in the Wells Fargo case, the circuit court vacated those orders and
dismissed Charter One’s complaint for lack of subject matter
jurisdiction.
ABN and Charter One appealed and the cases were consolidated.
No one appeared on behalf of McGahan, Hunter, or any other
appellee. However, the appellate court granted leave to the Chicago
Volunteer Legal Service Foundation (Foundation) to file an amicus
curiae brief in support of the trial court’s decision.
The appellate court reversed and remanded, finding that this court
had “consistently” labeled foreclosures as in rem actions, and that it
was bound by these determinations. 388 Ill. App. 3d 900, 902. The
appellate court further concluded that foreclosure proceedings
determine rights as against the whole world, not merely against
certain individuals, and, therefore, logically are in rem actions.
Although the appellate court acknowledged that several of our past
cases have stated that foreclosure proceedings are quasi in rem
actions, the appellate court found the discussions in those cases dicta
and, therefore, not controlling. Accordingly, the appellate court held
that, because a foreclosure is an in rem action, plaintiffs’ failure to
name a personal representative in the foreclosure action did not divest
the circuit court of jurisdiction and the circuit court erred in
dismissing ABN and Charter One’s complaints.
On February 23, 2009, we granted the Foundation’s motion for
leave to file a petition for leave to appeal instanter as amicus curiae.1
1
Charter One filed the main appellee brief in this case. ABN
incorporated and adopted Charter One’s brief as its own.
-4-
We later granted the Cook County public guardian leave to file an
amicus brief.
Analysis
Section 15–1501 of the Mortgage Foreclosure Law identifies
those who must be joined as party defendants in foreclosure
proceedings. Relevant here, the mortgagor is a “necessary party.” 735
ILCS 5/15–1501(a)(i) (West 2004). Although the Mortgage
Foreclosure Law mandates that a mortgagor must be made a party in
any foreclosure action, it fails to address what procedure a mortgagee
must follow or who must be named, if anyone, in lieu of the
mortgagor, when the mortgagor is deceased. Because the act is silent
as to the requirements to follow in the event the mortgagor is
deceased, we would normally look to the general rules of civil
procedure to ascertain what would be required. However, Charter One
and ABN contend this is not appropriate because foreclosure
proceedings are in rem actions and, therefore, neither a deceased
mortgagor’s estate nor a personal representative need be named.
“In rem” jurisdiction is “[a] court’s power to adjudicate the rights
to a given piece of property, including the power to seize and hold it.”
Black’s Law Dictionary 856 (7th ed. 1999). “[A] proceeding in rem
is one which is taken directly against property or one which is brought
to enforce a right in the thing itself.” Austin v. Royal League, 316 Ill.
188, 193 (1925). The legal fiction underlying an in rem proceeding is
that the “property, not the owner of the property, is liable to the
complainant. It treats property, therefore, as the defendant, susceptible
of being tried and condemned, while the owner merely gets notice,
along with the rest of the world, and may appear for his property or
not.” R. Waples, Treatise on Proceedings In Rem, §1, at 2 (1882).
A proceeding quasi in rem “has been characterized as an in rem
action which affects only the interests of particular persons in a
certain thing.” 1 Am. Jur. 2d Actions §30, at 817 (2005); see also
Freeman v. Alderson, 119 U.S. 185, 188, 30 L. Ed. 372, 373, 7 S. Ct.
165, 167 (1886). A quasi in rem action is “brought against the
defendant personally, with jurisdiction based on an interest in
property, the objective being to deal with the particular property or to
subject the property to the discharge of the claims asserted.” Black’s
Law Dictionary 30 (7th ed. 1999). Unlike an in rem action, a quasi in
-5-
rem action operates only as between the parties to the proceedings. 1
Am. Jur. 2d Actions §30, at 817-18 (2005).
There are two types of quasi in rem actions, only one of which is
relevant here. In this type, the plaintiff seeks “to secure a pre-existing
[sic] claim in the subject property and to extinguish or establish the
nonexistence of similar interests of particular persons.” Hanson v.
Denckla, 357 U.S. 235, 246 n.12, 2 L. Ed. 2d 1283, 1293 n.12, 78 S.
Ct. 1228, 1235 n.12 (1958).
Prior decisions from this court have inconsistently characterized
a foreclosure as both in rem and quasi in rem actions. The following
cases have identified foreclosure proceedings as in rem actions:
Markus v. Chicago Title & Trust Co., 373 Ill. 557, 561 (1940)
(foreclosure is “of the nature of a proceeding in rem”); Waughop v.
Bartlett, 165 Ill. 124, 129-30 (1896) (same); Bickerdike v. Allen, 157
Ill. 95, 99-100 (1895) (stating foreclosures may be “regarded” as in
rem); Karnes v. Harper, 48 Ill. 527 (1868); White v. Murphy, 23 Ill.
426 (1860); Woodbury v. Manlove, 14 Ill. 213 (1852).2 See also Pfaff
v. Chrysler Corp., 155 Ill. 2d 35 (1992) (stating that an injunction
may be appropriate in in rem proceedings, “such as the mortgage
foreclosure action here”). On the other hand, the following cases have
identified foreclosure proceedings as quasi in rem actions: McCallum
v. Baltimore & Ohio R.R. Co., 379 Ill. 60 (1942); Austin v. Royal
League, 316 Ill. 188 (1925); Equitable Trust Co. of New York v.
Chicago, Peoria & St. Louis R.R. Co., 314 Ill. 96 (1924); Lohmeyer
v. Durbin, 213 Ill. 498 (1904). None of these cases analyze the
rationale for characterizing a foreclosure action as either in rem or
quasi in rem. We do so now.
We begin by noting that in Freeman v. Alderson, 119 U.S. 185,
30 L. Ed. 372, 7 S. Ct. 165 (1886), the United States Supreme Court
characterized a mortgage foreclose as a quasi in rem proceeding.
Freeman involved an action in trespass to try title to property. There,
the Court discussed the two types of proceedings and their
distinguishing characteristics. The Court described an in rem
proceeding as one brought against the property alone, which is
considered responsible for the claims asserted by the plaintiff. The
2
These latter three cases dealt with scire facias, which was the procedure
previously used to foreclose a mortgage.
-6-
property itself is treated as the defendant because it is the
instrumentality of the wrong. The Supreme Court also noted that a
court acquires jurisdiction over the property by seizing it and giving
public citation to the world and that the owner of the property may
appear and protect his interest. Freeman, 119 U.S. at 187, 30 L. Ed.
at 373, 7 S. Ct. at 166.
The Court then went on to state, “[t]here is, however, a large class
of cases which are not strictly actions in rem, but are frequently
spoken of as actions quasi in rem, because, though brought against
persons, they only seek to subject certain property of those persons to
the discharge of the claims asserted.” Freeman, 119 U.S. at 187, 30
L. Ed. at 373, 7 S. Ct. at 166-67. The Court noted that these actions
differ from actions strictly in rem because the interest of the
defendant alone is sought to be affected, Accordingly, citation to the
defendant is required, and the judgment is only conclusive between
the parties to the proceedings. Freeman, 119 U.S. at 188, 30 L. Ed. at
373, 7 S. Ct. at 167. The Court observed that, though such actions
deal with property and seek its sale, they are not strict actions in rem
because they are against the named parties and the action is personal
in nature. Freeman, 119 U.S. at 188, 30 L. Ed. at 373, 7 S. Ct. at 167.
The Supreme Court concluded, “[s]uch are *** actions for the
enforcement of mortgages and other liens.” Freeman, 119 U.S. at
187, 30 L. Ed. at 373, 7 S. Ct. at 166-67.
Further, other authorities have stated that mortgage foreclosure
proceedings are quasi in rem actions. See R. Waples, Treatise on
Proceedings In Rem §606, at 758 (1882) (“[m]ortgage procedure
against property well illustrates” a quasi in rem action); Black’s Law
Dictionary 714 (5th ed. 1979) (defining “in rem mortgage” as
“[f]oreclosure of mortgage is in the nature of an in rem proceeding
but it approximates more closely a quasi in rem action”). See also
59A C.J.S. Mortgages §§874, 390 (2009); 50 C.J.S. Judgments §1389
(2009).
Consistent with the foregoing authorities, we conclude that a
mortgage foreclosure proceeding must be deemed a quasi in rem
action. One of the pivotal differences between in rem and quasi in
rem actions is whether the defendant is the property or a named
person. See, e.g., Austin, 316 Ill. 2d at 193. In in rem actions, the
property itself is the defendant, while in quasi in rem actions, a
-7-
named party is the defendant. Freeman, 119 U.S. at 187-88, 30 L. Ed.
at 373, 7 S. Ct. at 167. In a foreclosure action, the property is not the
defendant. Rather, the mortgagor, the person whose interest in the
real estate is the subject of the mortgage, is a necessary party
defendant to the foreclosure proceedings. 735 ILCS 5/15–1501(a)(i)
(West 2004); Lane v. Erskine, 13 Ill. 501, 503-04 (1851) (mortgagor
is an indispensable party in a foreclosure action). As such, the
proceeding must be brought against a named party and a foreclosure
action must be a quasi in rem action. R. Waples, Treatise on
Proceedings In Rem §72, at 99 (1882) (“It should ever be borne in
mind that there are no personal defendants to proceedings in rem”).
Moreover, in foreclosure actions, the property is not the
instrumentality of the wrong, nor is it responsible for the plaintiff’s
injury. The mortgagor is the instrumentality of the wrong. It was he
or she who breached the contract by defaulting on the note secured by
the mortgage. The foreclosure action is based on the note, the vehicle
which gives the plaintiff the legal right to proceed against the
property. The object of the foreclosure action is to enforce the
obligation created by that contract, through the property, but against
a specific person. Lohmeyer, 213 Ill. at 501 (“The object is to reach
and dispose of property, but the proceeding is for the enforcement of
an obligation ex contractu against a specific person”).
Likewise, because the mortgagor is a necessary party in a
foreclosure action, it is necessarily true that there must be personal
service on the mortgagor, i.e., “citation” to him or her. Rockwell v.
Jones, 21 Ill. 279, 285 (1859) (defendant to scire facias proceeding
to foreclose mortgage must be given notice of proceeding). In in rem
actions, personal service is not required on any person, not even the
owner. R. Waples, Treatise on Proceedings In Rem §64, at 88 (1882)
(“No personal citation is served upon the owner of the thing seized,
even when he is known”). In in rem actions, there is public citation
to the world. Freeman, 119 U.S. at 187, 30 L. Ed. at 373, 7 S. Ct. at
166. This distinction also supports the conclusion that a foreclosure
proceeding is quasi in rem.
Further, contrary to the appellate court’s finding, a mortgage
foreclosure proceeding does not bind the whole world. Case law,
dating to at least 1863, demonstrates this fact. Ohling v. Luitjens, 32
Ill. 23, 30-31 (1863) (foreclosure decree null and void against owner
-8-
of equity of redemption because not made a party). See also Gregory
v. Suburban Realty Co., 292 Ill. 568 (1920) (senior mortgagee not
bound by junior mortgagee foreclosure); Rose v. Walk, 149 Ill. 60
(1894) (junior mortgagee not bound by foreclosure where not a party
to the action); Kepley v. Jansen, 107 Ill. 79 (1883) (nonparty owner
of equity of redemption not bound by foreclosure decree); Cutter v.
Jones, 52 Ill. 84 (1869) (nonparty owner of equity of redemption not
bound by foreclosure decree); React Financial v. Long, 366 Ill. App.
3d 231 (2006) (junior mortgagee not bound by senior mortgagee
foreclosure if not made a party); Applegate Apartments Ltd.
Partnership v. Commercial Coin Laundry Systems, 276 Ill. App. 3d
433 (1995) (tenant in possession); Baldi v. Chicago Title & Trust Co.,
113 Ill. App. 3d 29 (1983) (junior mortgagee not bound by senior
mortgagee foreclosure if not made a party); Silverstein v. Schak, 107
Ill. App. 3d 641 (1982) (tenant in possession).
The Mortgage Foreclosure Law, too, makes clear that the entire
world is not bound by a foreclosure judgment. It states: “The court
may proceed to adjudicate their respective interests, but any
disposition of the mortgaged real estate shall be subject to (i) the
interests of all other persons not made a party or (ii) interests in the
mortgaged real estate not otherwise barred or terminated in the
foreclosure.” 725 ILCS 5/15–1501(a) (West 2004).
In reaching a conclusion that a foreclosure proceeding is an in rem
action, the appellate court below relied on Financial Freedom v.
Kirgis, 377 Ill. App. 3d 107 (2007). In Financial Freedom, the
mortgagee filed a foreclosure action against the deceased mortgagor
and her son. The defendant/son argued that the action was barred
because (1) the trial court lacked subject matter jurisdiction since the
suit was filed against a deceased person and (2) the case was not filed
within the two-year statute of limitations period set forth in section
18–12 of the Probate Act as incorporated by section 13–209.
Financial Freedom, 377 Ill. App. 3d at 109. The circuit court
concluded that it did not lack subject matter jurisdiction since the
foreclosure proceeding was an in rem action. Financial Freedom, 377
Ill. App. 3d at 121. The circuit court granted the plaintiff’s motion for
summary judgment and ordered a foreclosure. Financial Freedom,
377 Ill. App. 3d at 119-20. The appellate court affirmed, relying on
statements made by this court that a foreclosure proceeding is in rem
-9-
in Waughop and Marcus.
We are not persuaded by Financial Freedom. As noted above,
Waughop and Marcus did not engage in any analysis in reaching the
conclusion that foreclosures were in rem actions. We have found,
however, that the nature of a foreclosure proceeding mandates our
conclusion that foreclosure actions are quasi in rem proceedings.
Accordingly, we reject Financial Freedom, and to the extent that
decision and any statements in our prior cases are contrary to our
holding here, they are hereby overruled.
In sum, we hold that, based on the well-settled principles
distinguishing in rem and quasi in rem actions and the requirements
of the Mortgage Foreclosure Law, a foreclosure proceeding is a quasi
in rem action. Accordingly, we reverse the appellate court’s judgment
and affirm the judgment of the circuit court.
Appellate court judgment reversed;
circuit court judgment affirmed.
-10-