The Illinois Appellate Court, First District, recently ruled that a typographical error causing the first two letters of a plaintiff bank's name to be omitted in pleadings was simply a case of misnomer that did not require dismissing a post-foreclosure forcible and detainer action or vacating the ensuing order for possession.
The Court further ruled that the Illinois Mortgage Foreclosure Law's requirement that occupants of foreclosed property be "properly served" with a 90-day notice of intent to file an eviction action did not specify the use of any particular language identifying the owner of the property, and that sanctions were not appropriate in a misnomer case that did not prejudice the defendants.
A copy of the opinion is available at: http://www.state.il.us/court/Opinions/AppellateCourt/2013/1stDistrict/1113678.pdf.
Plaintiff bank, the trustee of a pool of mortgage-backed securities ("Trustee"), filed a forcible entry and detainer action against defendants tenants ("Occupants") following a mortgage foreclosure action against the owner of the property. In its complaint and pre-eviction notice, Trustee, through counsel, identified itself as "Bank National Association," thereby inadvertently misidentifying Trustee by leaving off the first two initials of Trustee's name. Attached to the complaint was, among other things, a copy of the order confirming the foreclosure sale, which correctly identified Trustee by its full name.
Occupants were served with process requiring them to appear in court. However, after continuing the case due to Occupants' failure to appear for trial or to answer the complaint, the lower court entered an order for possession against them, similarly using the incorrect name "Bank National Association" to identify Trustee. The lower court stayed enforcement of the order for about a week.
A few days before the stay expired on the order for possession, Occupants filed their first pleadings in the eviction, asserting among other things that "Bank National Association" was not a proper plaintiff and accordingly had no right to possession of the property. Rather than filing a motion to vacate or for a new trial, Occupants' attorney filed a notice of motion indicating that he would present "Motions to Quash Service of Process, Dismiss for Lack of Jurisdiction, and Stay Order for Possession." Despite its title, however, nothing in the supposed motion sought to quash service of process or cited any of the statutory provisions or other authorities to support a request to vacate. Further, Occupants also referenced a pending appeal in the borrower's foreclosure action as a reason to stay the order for possession.
The lower court denied Occupants' motions, ordering Trustee to file a written motion to amend its complaint reflecting its full and correct name. In its subsequent written motion, Trustee asserted that the error in its name was simply a misnomer created by a scrivener's error. The lower court, intending to retroactively apply the amendment to all of Trustee's previously-filed pleadings, granted Trustee's motion and ordered that the complaint and order of possession be amended "nunc pro tunc" to reflect Trustee as the proper party plaintiff.
Occupants appealed, arguing that the lower court improperly denied their post-judgment motion to dismiss for lack of standing, that the lower court improperly amended the complaint and order for possession "nunc pro tunc," and that Trustee should be sanctioned for forcing Occupants to litigate an action brought by a supposedly "nonexistent entity."
The Appellate Court affirmed the judgment, but modified the court's order to remove the "nunc pro tunc" language so that the amendments "related back" to the original documents filed in the eviction action.
As you may recall, the Illinois Code of Civil Procedure ("Code") provides: "[m]isnomer of a party is not a ground for dismissal but the name of any party may be corrected at any time, before or after judgment, on motion, upon any terms and proof that the court requires." 735 ILCS 5/2-401(b).
In addition, the Code further provides that "pleading[s] may be amended at any time, before or after judgment, to conform the pleadings to the proofs." 735 ILCS 5/2-616(c). See also 735 ILCS 5/2-616(b)("relation-back" provision).
Finally, the Illinois Mortgage Foreclosure Law ("IMFL") in part requires that a notice of intent to file a forcible entry and detainer action be "properly served upon the occupant" of foreclosed property at least 90 days before such action is filed. 735 ILCS 5/15-1701(h)(4).
Examining, first, whether it had jurisdiction over the lower court's various orders at issue, the Appellate Court ultimately concluded that it had jurisdiction over the orders as they were all steps in the same "procedural progression." See Burtell v. First Charter Service Corp., 76 Ill. 2d 434-35 (1979).
Next, noting the inarticulate and muddled nature of Occupants' pleadings, the Appellate Court turned to Occupants' assertions that the complaint, as amended "nunc pro tunc," was null and void, that the order for possession was likewise null and void, and that the lower court erred in denying the motion to dismiss for lack of standing. In so doing, the Appellate Court noted in part that Occupants had waived standing as an affirmative defense and had additionally admitted all of Trustee's allegations by failing to answer the complaint, and had thus forfeited their right to challenge the result or form of the proceedings in the lower court.
The Appellate Court also pointed out among other things that: (1) although Occupants' motion used the word "vacate" in the prayer for relief, the actual intent of the motion was to dismiss the case entirely, thus ignoring that the case had proceeded to final judgment; (2) the actual name of the entity claiming possession was of little relevance given that Occupants, as mere tenants of the borrower, had no dealings with it; (3) that the actual party in interest was not Trustee, but the owner of the loan whose full legal name clearly and precisely appeared on both the pre-eviction notice and the complaint; and, (4) attached to the eviction complaint served on Occupants were copies of the foreclosure order listing the full name of Trustee and a list of contact persons.
Addressing the lower court's order to amend the complaint and order for possession "nunc pro tunc," the Appellate Court noted that the term "nunc pro tunc" was misapplied, but nevertheless concluded that amending the pleadings to relate the amendments back to the original filing was a valid exercise of the lower court's authority. In so doing, the Court rejected Occupants' assertion that the error in this case was not merely a misnomer but a case of mistaken identity.
Moreover, pointing out the "very slight difference" between the correct name of Trustee and the incorrect name that appeared on the pleadings, and that no one suggested that the difference was due "to anything but a scrivener's error," the Appellate Court relied on case law in applying the so-called "misnomer rule," thus concluding that technical errors should not provide a basis for promoting form over substance in litigation. See, e.g., Santiago v. E.W. Bliss co., 2012 IL 111792, ¶ 25; Todd w. Musburger, Ltd. v. Meier, 394 Ill. App. 3d 781, 806-08 (2009)(upholding denial of defendant's motion for relief from judgment on grounds that plaintiff lacked capacity to sue due to misnomer); Bristow v. Westmore Builders, Inc., 266 Ill. App. 3d 257, 260 (1994)(opposing party may require a misnomer to be corrected, but may not force a dismissal for a misnomer); Thompson v. Ware, 210 Ill. App. 3d 16, 18 (1991)(noting that a pleading may be amended at any time to conform to proofs).
Deeming "superfluous" the "nunc pro tunc" language in the lower court's order, the Appellate Court explained that the lower court should have instead applied the "relation- back" doctrine in order that the amended complaint and order would be considered as filed on the date the original pleadings were filed. See Maggi v. RAS Development, Inc. 2011 IL App (1st) 091955 ¶ 23; Ill. S. Ct. R. 366. Accordingly, while affirming the lower court's judgment, the Appellate Court modified the lower court's order granting Trustee's motion to amend, clarifying that the judgment related back so as to modify the original pleadings.
Finally, the Court also rejected Occupants' assertion that they should prevail because the pre-eviction notice was flawed and that the lower court had no authority to amend it. In so doing, the Court noted among other things that, as a pre-litigation notice, regular pleading rules did not apply, and, further, that the IMFL does not require any particular language for the notice or that the notice even contain the name of the owner of the property. The Appellate Court pointed out that in this case the notice contained sufficient contact information in the event Occupants needed to make further inquiry.
The Court also rejected Occupants' request for sanctions, noting that Occupants were not prejudiced by the misnomer, and that the lower court's judgment in favor of Trustee was substantively correct.
Ralph T. Wutscher
McGinnis Wutscher LLP
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