Friday, May 16, 2014

No Risk of Retroactively Validating Prior Void Orders When Submitting to the Jurisdiction of the Court After Final Judgment

By Lawrence A. Stein
Partner, Huck Bouma PC

For decades, defendants in civil actions faced a dilemma if they wished to appear in a case for the first time after judgment to contest the court’s prior personal jurisdiction over them--for want of proper service of process on them--to seek to vacate the judgment, to submit to the jurisdiction of the court, and to defend on the merits. The dilemma was that such an appearance and submission of the defendant to the jurisdiction of the court could "serve to validate retroactively a judgment [that was] void when entered." J.C. Penney Co., Inc. v. West, 114 Ill. App. 3d 644, 646 (1983) (finding against retroactivity but recognizing the existence of conflicting decisions). The alternative was to first seek to vacate the judgment only, and not to immediately submit to the jurisdiction of the court, and not seek to immediately defend on the merits.

This dilemma was made acute by the reality that seeking only to vacate the judgment for improper service was unattractive for practical reasons: the court is more likely to vacate the prior judgment if the defendant submits to its jurisdiction. Seeking to vacate the judgment for improper service, without also submitting to the court's jurisdiction, might seem overly technical to the court, reducing the likelihood of success of a request only to vacate the judgment.

In BAC Home Loans Services, LP v. Mitchell, 2014 IL 116311, our supreme court has eliminated that persistent dilemma. BAC involved a mortgage foreclosure. The return of the summons indicated service on the defendant, Kim E. Mitchell, resulting from substitute service on Michelle Foreman by leaving the summons with Foreman at Mitchell’s residence. Mitchell did not respond to the summons within 30 days, and in 2010 BAC obtained a judgment of foreclosure and sale from the court based on the substitute service. Also in 2010, a judicial sale occurred pursuant to the judgment of foreclosure and sale. The court confirmed the sale in 2011. In a mortgage foreclosure action, an order confirming the sale is the final judgment of the court.

Within 30 days after the trial court entered the final order confirming the sale, Mitchell filed an appearance and a motion to vacate the order confirming the sale. The motion was withdrawn and refiled as a motion to quash, and a petition for relief from, the order confirming the sale. BAC responded to the motion as re-filed, alleging that substitute service on Foreman at the residence was proper and that Foreman was Mitchell’s daughter. Mitchell replied, under oath, that she had no daughters, only a son, and did not know anyone named Michelle Foreman. Mitchell’s motion was denied, and the appellate court affirmed, holding that Mitchell’s actions in the trial court "worked prospectively and retroactively" to validate the orders of the court entered before Mitchell first appeared and moved to vacate the order confirming the sale.

The supreme court reversed, holding that Mitchell’s actions did not retroactively validate the orders entered prior to Mitchell’s appearance, overruling the decisions from the appellate court permitting retroactive validation of orders entered without personal jurisdiction. In doing so, the court reaffirmed "the longstanding rule that 'a party who submits to the court’s jurisdiction does so only prospectively and the appearance does not retroactively validate orders entered prior to that date.' " BAC Home Loans Services, 2014 IL 116311, ¶ 43 (quoting In re Marriage of Verduna, 126 Ill. 2d 542, 547 (1989)). As a result, the supreme court held that Mitchell had submitted to the trial court's jurisdiction and waived any objection to personal jurisdiction, prospectively only. The court vacated as void all orders entered before Mitchell submitted to the court's jurisdiction and remanded for further proceedings, where Mitchell will have the opportunity to defend the merits of the lawsuit.

Recommended Citation: Lawrence A. Stein, No Risk of Retroactively Validating Prior Void Orders When Submitting to the Jurisdiction of the Court After Final JudgmentThe Brief, (May 16, 2014),

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