Mortgage Electronic Systems v. Gipson

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State: Illinois

Court: 1st District Appellate

Docket No: 1-06-2363 Rel

Case Date: 02/22/2008

Preview:SIXTH DIVISION February 22, 2008

No. 1-06-2363 MORTGAGE ELECTRONIC SYSTEMS, Plaintiff-Appellee, v. DEBORAH GIPSON, Defendant-Appellant. ) ) ) ) ) ) ) ) ) ) ) )

Appeal from the Circuit Court of Cook County, Illinois No. 05 CH 10946 Honorable Jessie G. Reyes Judge Presiding.

JUSTICE JOSEPH GORDON delivered the opinion of the court: On September 16, 2005, plaintiff, Mortgage Electronic Systems, as nominee for Fremont Investment and Loan, filed a complaint to foreclose a mortgage executed by defendant, Deborah Gipson. After an unsuccessful initial attempt to serve Gipson, plaintiff obtained an order from the circuit court on September 21, 2005, to appoint a special process server. By affidavit, the special process server attested that on September 29, 2005, he perfected individual service on Gipson by delivering the summons and complaint to her at her residence. On January 17, 2006, plaintiff filed a motion for default, a motion to appoint a selling officer, and a motion for judgment of foreclosure and order of sale. The circuit court granted these motions the same day they were filed. On May 2, 2006, a judicial sale of the property took place and Third Coast Holders, LLC (Third Coast Holders), was the high bidder. On May 5, 2006, Gipson filed a motion to quash service of summons, set aside the judgment of foreclosure and deny confirmation of the judicial sale. In her motion, Gipson stated

No. 1-06-2363 that she was never served. In support of this contention, Gipson attached an affidavit in which she stated: "That in or around the time that Plaintiff alleges that I was personally served with process in this cause, a guest of mine, Gwen Tolbert, was visiting my home and was at the home during the day when I was not at home. She did not reside at the subject property and was presumably served with summons in this cause on my behalf. That the person who handed her documents did not tell her of the contents of the envelop [sic], nor did they inform her that the contents of the envelop [sic] was [sic] relating to a foreclosure of the property in which I was then living and she did not communicate any such information to me. That I had never been served with summons and complaint in this cause properly notifying me of each of the proceedings relating to the foreclosure of my home. That after I was unable to temporarily pay my mortgage, I contacted the mortgage company and attempted to reinstate my mortgage and to enter into a workout agreement with the mortgage company. That the mortgage company failed, and/or refused to send me the necessary documents in order to reinstate my mortgage, or return my calls and inquiries about commencing the process for reinstating my mortgage. That on or about April 29, 2006 I received a telephone call from a

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No. 1-06-2363 representative of the Plaintiff who informed me that my property was set to be sold at judicial sale on May 2, 2006 and threatened me to leave the property or pay the Plaintiff all the money I owed on my mortgage. I immediately contacted attorney Rodrick F. Wimberly to address this matter." Gipson further alleged in her motion that on May 2, 2006, her attorney drafted a motion to vacate the judgment of foreclosure and strike the judicial sale date that was scheduled that same day but that he was unable to file and present the motion before the judicial sale was held that morning. Gipson's attorney filed an appearance on her behalf on May 17, 2006. On May 24, 2006, the circuit court entered an order granting plaintiff leave to respond to Gipson's motions, granting Gipson a week to reply, and setting the case for July 5, 2006, "for presentation of courtesy copies and setting of hearing date in courtroom 2802." On June 23, 2006, plaintiff filed a response to Gipson's motions to quash service of summons, set aside the judgment of foreclosure and deny confirmation of the sale arguing that Gipson's uncorroborated testimony that she was not served was not sufficient to overcome the presumption of validity attached to a return of service. On July 5, 2006, the status date set by the circuit court's May 24, 2006, order, Gipson did not appear and the court granted plaintiff's "motion for confirmation of sale and right to possession."1 In its order, the circuit court confirmed the foreclosure and sale of Gipson's property, ordered a distribution of the sale funds, ordered that a deed be issued to the holder of

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This motion does not appear in the record and it is not clear when it was filed; however,

Gipson has not alleged that she was not given proper notice of the motion. -3-

No. 1-06-2363 the certificate of sale, ordered that the holder of the certificate of sale be entitled to possession in 30 days, and ordered that the sheriff of Cook County evict Gipson in 30 days. On August 7, 2006, Gipson brought an emergency motion to quash service of summons. The motion was identical to her previously filed motion except that it additionally alleged the following: that the circuit court had entered an order with a briefing schedule on defendant's motion and set the matter for a "clerk status" on July 5, 2006; that defendant's attorney was out of the office on vacation from July 5 through July 18, 2006; that "due to a mis-communication error, no member of his office appeared at the clerk status and defendant's motion was stricken, and the previous court judgment of foreclosure and order confirming judicial sale were entered along with an order of possession"; that defendant's attorney did not receive plaintiff's response to defendant's motion until after he returned from vacation; and that defendant's motions were meritorious. On August 9, 2006, the circuit court entered an order denying Gipson's August 7, 2006, emergency motion for lack of jurisdiction. Gipson then filed a motion to reconsider in which she argued that the circuit court erred in denying her emergency motion on the basis of timeliness because the motion was filed within the required 30 days in that the thirtieth day fell on Saturday, August 5, 2006, and she filed her motion on the next available court date, August 7, 2006. Gipson further contended that regardless of when her motion to reconsider was brought, the circuit court's July 5, 2006, order confirming the foreclosure and sale of Gipson's property was void because the court never had personal jurisdiction over Gipson due to the lack of proper service of summons and the default order could therefore be attacked at any time.

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No. 1-06-2363 On appeal, Gipson makes the same contentions she made in her motion to reconsider. Gipson's first argument, that she filed her emergency motion within 30 days of the circuit court's order confirming the foreclosure and judicial sale, is without merit. Section 2-1301 of the Code of Civil Procedure (Code) states: "The court may in its discretion, before final order or judgment, set aside any default, and may on motion filed within 30 days after entry thereof set aside any final order or judgment upon any terms and conditions that shall be reasonable." 735 ILCS 5/21301(e) (West 2004). Section 1.11 of the Statute on Statutes explains how the 30-day time limit of section 2-1301(e) must be computed: "The time within which any act provided by law is to be done shall be computed by excluding the first day and including the last, unless the last day is Saturday or Sunday or is a holiday as defined or fixed in any statute now or hereafter in force in this State, and then it shall also be excluded. If the day succeeding such Saturday, Sunday or holiday is also a holiday or a Saturday or Sunday then such succeeding day shall also be excluded." 5 ILCS 70/1.11 (West 2004). There is no dispute that the circuit court's July 5, 2006, order confirming the foreclosure and sale of Gipson's property was a final and appealable order granting a default judgment to plaintiff. Thus, according to section 2-1301, Gipson had 30 days to bring a motion to set aside that judgment. In computing these 30 days, section 1.11 directs us to exclude the first day, which was July 5, the day of the judgment. Thus, with July 6 being the first day counted, the thirtieth day fell on August 4, 2006, which was a Friday and not a holiday. Gipson did not file her

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No. 1-06-2363 emergency motion until August 7, 2006, and the motion was, therefore, not in compliance with section 2-1301. Gibson's contention that the thirtieth day fell on Saturday August 5, 2006, is inexplicable and is not supported by the case she cites as support, namely, Valdovinos v. LunaManalac Medical Center, Ltd., 307 Ill. App. 3d 528, 718 N.E.2d 612 (1999). In Valdovinos, the court found that the thirtieth day after an order entered September 26, 1997, was Sunday, October 26, 1997; therefore, because the thirtieth day landed on a Sunday, the court deemed defendant's motion to reconsider, filed on Monday, October 27, 1997, to be timely. Valdovinos, 307 Ill. App. 3d at 536, 718 N.E.2d at 617. The month of September has 30 days; thus four days of that month were counted toward the 30 days

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