Eastern Savings Bank, FSB v. Flores (IL)

Summary: A party may waive service of process by private contract and that waiver can apply both prospectively and retroactively.

Eastern Savings Bank, FSB v. Flores, 2012 IL App (1st) 112979, 977 N.E.2d 242 (Ill.App. 1 Dist.,2012).


In July 2009, Eastern Savings Bank started foreclosure proceedings against Susan and Edward Flores and attempted to serve them with summons by leaving a copy of the summons with Edward’s brother, John Flores. Susan and Edward argued, however, that John did not live with them and he was not at their residence on the date that the copy of the summons was left with him. Susan and Edward did not answer the complaint or appear in court and default judgment was entered against them in November 2009.

A month after the default judgment was entered,  a letter with Susan Flores’ name on it was faxed to the court and the court responded by informing Susan of the default judgment against her. But the letter was not sent by Susan; it was sent without permission by a woman named Carolyn Allen who was helping Susan with getting a loan modification. In February 2010, Susan Flores (but not Edward Flores) and Eastern Savings Bank entered into a forbearance agreement whereby the bank agreed to halt the foreclosure proceedings. In the agreement it stated that Susan Flores was acknowledging that there had been proper service in the foreclosure action. In May 2010, Susan Flores defaulted on the forbearance agreement. The bank went through with foreclosure and the property was sold by judicial sale in August 2010. In October 2010 Susan and Edward Flores filed a motion to quash service in the initial foreclosure proceeding, arguing that they were never properly served. The trial court denied Susan’s motion because of the acknowledgment in her forbearance agreement but granted the motion for Edward. Susan then appealed.

Holding: Affirmed. Susan Flores argued that the acknowledgement in the forbearance agreement is not valid because “service cannot be waived by private contract.” The Illinois Appellate court disagreed. The court cited several Illinois cases that stood for the proposition that “a party may acknowledge service of process through a private contract.” The court further stated that a party can “contractually waive all defenses” in Illinois and that public policy favored a ruling that upheld the enforcement of contracts. Because Susan Flores acknowledged by private contract with Eastern Savings Bank that she had been properly served in the foreclosure action, she waived her right to challenge that service and therefore the original default judgment issued against her was valid.

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By: ATG Underwriting Department | Posted on: Fri, 02/08/2013 - 4:56pm