BMO Harris Bank, N.A. v. Malarz

2021 IL App (2d) 190984No. 2-19-0984
Opinion filed January 20, 2021
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
BMO HARRIS BANK, N.A., as Successor ) Appeal from the Circuit Court
in Interest to Harris, N.A., ) of Lake County.
)
Plaintiff-Appellee, )
)
v. ) No. 10-CH-636
)
MARCIN MALARZ; ANNA MALARZ; )
RICHARD McDONALD; CONCORD-AIR, )
INC.; JOSEPH SCHIAVONE; H.A. )
SCHIAVONE; UNKNOWN OWNERS; )
OWNERS and NONRECORD CLAIMANTS, )
)
Defendants ) Honorable
) Daniel L. Jasica,
(Richard McDonald, Defendant-Appellant). ) Judge, Presiding.
______________________________________________________________________________
JUSTICE HUTCHINSON delivered the judgment of the court, with opinion.
Justices Jorgensen and Schostok concurred in the judgment and opinion.
OPINION
¶1 Defendant, Richard McDonald, appeals the trial court’s order dismissing his second
amended petition, filed under section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS
5/2-1401 (West 2016)), as untimely under section 15-1505.6(a) of the Illinois Mortgage
Foreclosure Law (Foreclosure Law) (id. § 15-1505.6(a)). Defendant contends that his second
amended petition was timely because, among other reasons, the period for filing his action was
tolled when he withdrew his first amended petition without prejudice. We affirm.
2021 IL App (2d) 190984¶2 I. BACKGROUND
¶3 In 2008, Marcin Malarz executed a mortgage and note in favor of defendant, pledging
residential property as security for a loan. Plaintiff, BMO Harris Bank N.A., as successor in interest
to Harris, N.A., held a first mortgage on the property. In February 2010, plaintiff filed a complaint
to foreclose the mortgage and named defendant as a party. Defendant was served by a special
process server but did not appear in court. On December 6, 2011, a default judgment and order of
foreclosure was entered.
¶4 In February 2012, defendant called plaintiff’s counsel to inquire about the judicial sale and
request the opening bid. Defendant said that he was monitoring the foreclosure action because he
had a lien on the property. However, defendant did not appear in the action, and the property was
sold. An order confirming the sale was entered in April of 2012.
¶5 On October 10, 2017, counsel filed an appearance on behalf of defendant, together with a
motion to vacate the default judgment and quash service of process. On November 1, 2017, the
trial court entered an order permitting defendant to file, within 14 days, an “amended
motion/petition.” On November 15, 2017, defendant filed a first amended petition under section
2-1401 to quash service. Defendant alleged that the service of process lacked a required court
order. On February 15, 2018, defendant moved for leave to file an amended petition. On February
16, 2018, an agreed order was entered whereby the November 15, 2017, petition was withdrawn
without prejudice and the February 15, 2018, motion for leave to file was stricken. The order
further stated, “This case shall be closed.”
¶6 On August 3, 2018, new counsel for defendant filed an appearance. Counsel also filed a
motion to reopen the case and to file an attached second amended petition to quash service. The
second amended petition likewise asked for the case to be reopened. Plaintiff moved to dismiss
-2-
2021 IL App (2d) 190984the petition and strike the motion, arguing in part that the petition was untimely because it was not
filed within 60 days of defendant’s first appearance in the action, as required by section 15-
1505.6(a) of the Foreclosure Law. On November 6, 2019, the court entered a written order, stating
that (1) the motion to dismiss and strike was heard that day, (2) the court was granting the motion,
and (3) defendant’s second amended petition was untimely under section 15-1506.6(a). The record
contains no report of proceedings for any hearing, including the November 6 hearing. Defendant
appeals.
¶7 II. ANALYSIS
¶8 Defendant contends that his second amended petition was timely under section 15-
1505.6(a) because (1) the court should not count the time between the closure of the first case and
the filing of the second amended petition against section 15-1505.6(a)’s 60-day period; (2) the
second amended petition related back to his original motion to quash, which was filed on the day
he first appeared in the action; and (3) the second amended petition was filed within the one-year
window under section 13-217 of the Code (735 ILCS 5/13-217 (West 1994)) 1 for filing a new
action.
¶9 Section 15-1505.6(a) of the Foreclosure Law provides that, in a residential mortgage
foreclosure proceeding, when a party moves to dismiss the cause or to quash service of process on
the basis that the trial court lacked personal jurisdiction, the party must do so within 60 days of
either the date he or she first files an appearance or the date he or she first participates in a hearing
without filing an appearance, whichever is earlier. 735 ILCS 5/15-1505.6(a) (West 2016); Wells
1
The 1994 version applies because a 1995 amendment was found unconstitutional in Best
v. Taylor Machine Works, 179 Ill. 2d 367 (1997).
-3-
2021 IL App (2d) 190984Fargo Bank, National Ass’n v. Roundtree, 2018 IL App (1st) 172912, ¶ 13. “In other words, in the
context of a residential foreclosure action, the moment a party files [an] appearance or even simply
participates in any hearing, a 60-day clock begins to run, within which time [the party] must object
to personal jurisdiction.” Roundtree, 2018 IL App (1st) 172912, ¶ 13. “The failure to do so results
in the waiver of any objection to personal jurisdiction.” Id. “Thus, once the 60-day clock expires,
[a party] may no longer challenge personal jurisdiction.” Id. However, the time may be extended
by the trial court for good cause shown. 735 ILCS 5/15-1505.6(a) (West 2016). Section 15-
1505.6(a) was intended to limit the opportunity to stall foreclosure proceedings with objections to
personal jurisdiction. See GreenPoint Mortgage Funding, Inc. v. Poniewozik, 2014 IL App (1st)
132864, ¶ 16.
¶ 10 “In construing and applying a statute, a court’s primary objective is to give effect to the
legislature’s intent[,] and that intent is best discerned by looking to the plain language employed
in the statute.” BAC Home Loans Servicing, LP v. Pieczonka, 2015 IL App (1st) 133128, ¶ 11.
“Where a statute’s language is clear and unambiguous, it should be applied as written.” Id. To the
extent it raises legal questions, we consider de novo the dismissal of a section 2-1401 petition;
however, to the extent that factual questions arise, we review for an abuse of discretion. Warren
County Soil & Water Conservation District v. Walters, 2015 IL 117783, ¶¶ 49-51.
¶ 11 In Pieczonka, the First District addressed the same factual situation presented here. There,
the defendant filed an appearance on January 30, 2013, and a motion to quash service on February
6, 2013. Defendant voluntarily withdrew the motion on April 11, 2013, with no indication that he
sought an extension of time. On April 22, 2013, he filed an amended motion to quash, and the trial
court denied it as untimely. The First District affirmed, holding that, under the plain language of
section 15-1501.6(a), more than 60 days had passed between the defendant’s first appearance and
-4-
2021 IL App (2d) 190984the filing of the amended motion. Pieczonka, 2015 IL App (1st) 133128, ¶ 12. The court rejected
the defendant’s argument that the only time of concern was between his first appearance and the
filing of his first motion to quash. Id. ¶ 13. The court stated that, because the defendant voluntarily
withdrew the first motion and the record did not show that he had sought an extension of time, the
date that he filed the first motion was not relevant. Instead, the relevant period was between the
defendant’s first appearance and the date of his amended motion. Accordingly, the amended
motion was untimely. Id.
¶ 12 Here, under Pieczonka, defendant’s second amended petition was untimely, as it was filed
well beyond 60 days from his first appearance in the action. While Pieczonka involved a motion
to quash instead of a section 2-1401 petition, that distinction does not matter. See Roundtree, 2018
IL App (1st) 172912, ¶ 14. “Section 15-1506.6 applies equally to a personal jurisdiction challenge
asserted in a section 2-1401 postjudgment petition as it would to a personal jurisdiction challenge
asserted during the pendency of the case prior to final judgment.” Id. It is essentially a motion to
quash service. Id. (citing MB Financial Bank, N.A. v. Ted & Paul, LLC, 2013 IL App (1st) 122077,
¶ 16).
¶ 13 Defendant contends that Pieczonka is distinguishable because, there, it was not indicated
that the petition was withdrawn without prejudice. But that distinction makes no difference here.
As the court in Pieczonka noted, section 15-1506.6 plainly requires the challenge to service to be
made within 60 days of the first appearance, with the only exception being if the time is extended
by the trial court for good cause shown. Here, as in Pieczonka, there is no indication that defendant
ever asked for an extension of time or was granted one (if such occurred at a hearing, we would
not necessarily know, because the record contains no reports of proceeding). The voluntary
-5-
2021 IL App (2d) 190984withdrawal of the petition “without prejudice” does not equate to an extension of time for good
cause shown.
¶ 14 Defendant also contends, with little discussion, that Pieczonka does not apply because it
was implicitly overruled by Bank of New York Mellon v. Laskowski, 2018 IL 121995. There, the
defendant appeared, but the plaintiff failed to appear, and the action was dismissed for want of
prosecution. The dismissal was later vacated, and the defendant filed a motion to quash service
within 60 days of the reinstatement, but more than 60 days from the first appearance. The supreme
court noted that, since the case was dismissed for want of prosecution, there was neither reason
nor opportunity for the defendant to file a motion to quash service. It held that applying the time
during which the case was dismissed against the 60 days would yield an absurd and unjust result.
Id. ¶¶ 13, 18. Thus, the court held that “the time that elapses between the [dismissal for want of
prosecution] of a residential mortgage foreclosure action and its subsequent reinstatement is not to
be counted in calculating the statutory deadline.” Id. ¶ 19.
¶ 15 Laskowski did not implicitly overrule Pieczonka and is distinguishable. In Laskowski, the
action was involuntarily dismissed, and the defendant had no reason or opportunity to file a motion
to quash while it remained dismissed. In Pieczonka, the defendant voluntarily withdrew his petition
to quash without seeking an extension of time for good cause shown. The same occurred here.
Accordingly, Pieczonka, not Laskowski, controls this case.
¶ 16 In the alternative, defendant contends that, under section 2-616(a) of the Code (735 ILCS
5/2-616(a) (West 2016)), the second amended petition relates back to his initial motion to quash,
for purposes of the 60-day time limitation. Plaintiff contends that the issue is forfeited because it
was not raised in the trial court.
-6-
2021 IL App (2d) 190984¶ 17 Under sections 2-616(a), (b) of the Code (id. § 2-616(a), (b)), an amended pleading may
be allowed at any time before final judgment and may also be deemed to relate back to an earlier
pleading for purposes of a limitations period.
“In determining whether a motion to amend should have been granted by the circuit
court, we consider the following four factors: whether the proposed amendment would cure
the defective pleading, whether the proposed amendment would surprise or prejudice the
opposing party, whether the proposed amendment was timely filed, and whether the
moving party had previous opportunities to amend.” City of Chicago v. City of Kankakee,
2019 IL 122878, ¶ 20.
The trial court’s ruling on the multifactored question of whether an amendment should be
permitted is reviewed for abuse of discretion. Id. By contrast, the question of whether an
amendment relates back to a prior pleading is reviewed de novo. Porter v. Decatur Memorial
Hospital, 227 Ill. 2d 343, 353 (2008).
¶ 18 Generally, arguments not raised in the trial court are forfeited and cannot be raised for the
first time on appeal. Village of Roselle v. Commonwealth Edison Co., 368 Ill. App. 3d 1097, 1109
(2006). Here, while defendant moved to reopen the case and to file a second amended petition, he
did not file a motion specifically seeking leave to amend a pleading. We cannot tell—because we
lack a report of proceedings—if defendant orally made such a motion at the November 6, 2019,
hearing on defendant’s motion to reopen the case. Accordingly, we cannot accept defendant’s
characterization of the trial court’s November 6, 2019, ruling as denying him leave to amend.
Moreover, with the record being incomplete, we are in no position to assess whether the trial court
abused its discretion at the November 6 hearing. In the absence of a record to support defendant’s
-7-
2021 IL App (2d) 190984claim of error, we must assume that the trial court’s decision had a sufficient factual basis and was
in conformity with the law. See Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92 (1984).
¶ 19 Finally, defendant argues that he had a right to refile his petition within one year under
section 13-217 of the Code (735 ILCS 5/13-217 (West 1994)). Section 2-1009(a) of the Code
allows a plaintiff to voluntarily dismiss an action before trial begins. 735 ILCS 5/2-1009(a) (West
2016). Meanwhile, section 13-217 allows one year for a plaintiff to refile a “new action” after a
voluntary dismissal. 735 ILCS 5/13-217 (West 1994). The record does not show that this issue
was presented to the trial court. The argument was not raised in defendant’s pleadings, and there
is no record of any hearings below. Accordingly, this issue, too, was forfeited.
¶ 20 Defendant argues that our ability to determine the issue is clear from the common-law
record and that the matter is not one within the trial court’s discretion. But the record is ambiguous
as to defendant’s intent in withdrawing the first amended petition and later seeking to file the
second amended petition. The February 16, 2018, order stated that defendant was withdrawing the
first amended petition without prejudice but also stated that the case was closed. Defendant later
moved to reopen the case and file his second amended petition, which also sought to reopen the
case. Thus, it appears that defendant was attempting to reinstate the dismissed action, not file a
new action. Seeking to reinstate the action would be consistent with defendant’s relation-back
argument. However, to the extent that defendant was attempting to reinstate the action, section 13-
217 was inapplicable. A “new action” under section 13-217 is not a reinstatement of the old action
but an entirely new and separate action. Richter v. Prairie Farms Dairy, Inc., 2016 IL 119518,
¶ 48; Dubina v. Mesirow Realty Development, Inc., 178 Ill. 2d 496, 504 (1997). Perhaps, at the
November 6, 2019, hearing, defendant somehow presented his motion to reopen as a motion to file
-8-
2021 IL App (2d) 190984a new action. We cannot know because we lack a record of that hearing. Since defendant has not
established that section 13-217 applies, we reject his contention of error.
¶ 21 III. CONCLUSION
¶ 22 For the reasons stated, we affirm the judgment of the circuit court of Lake County.
¶ 23 Affirmed.
-9-
2021 IL App (2d) 190984No. 2-19-0984
Cite as: BMO Harris Bank, N.A. v. Malarz, 2021 IL App (2d) 190984Decision Under Review: Appeal from the Circuit Court of Lake County, No. 10-CH-636;
the Hon. Daniel L. Jasica, Judge, presiding.
Attorneys Adam Goodman, of Goodman Tovrov Hardy & Johnson LLC, of
for Chicago, for appellant.
Appellant:
Attorneys Gabriella R. Comstock, of Keough & Moody, P.C., of Naperville,
for for appellee.
Appellee:
- 10 -