J.P. Morgan Mortgage Acquisition Corp., v Straus (IL)


Summary: Failure to file a special appearance, when filing more than 30 days after the complaint, meant mortgagor could not maintain improper service challenges.

J.P. Morgan Mortgage Acquisition Corp., v Straus, 2012 IL App (1st) 112401 (1st Dist. 2012).

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Credit Based Asset Servicing and Securitization, LLC, a predecessor in interest to JP Morgan, (lender) filed a complaint to foreclose Joseph Straus’s mortgage. Straus (the borrower) appeared pro se. Later, the borrower hired counsel, who filed an additional appearance with the clerk of the circuit court. The borrower’s counsel asserted that, as counsel of record, he did not receive service from lender’s counsel for the remainder of the proceedings.

The lender filed multiple motions, among them motions for judgment of foreclosure and sale, which were served upon the borrower, personally. The trial court then granted the motions. At a subsequent hearing to approve the sale, the borrower’s counsel requested that the court vacate the sale and void the judgment for improper service of process. The lender argued that it was never served with notice of the borrower’s counsel’s appearance, nor did counsel seek leave of court to file said appearance. The borrower’s attorney was not able to produce legible proof of service to the trial court, nor did it provide proper certification of service. The trial court denied the motion and approved the sale. The lender appealed arguing that trial court’s denial was erroneous and all subsequent orders of trial court were therefore, void. The borrower argued that the lender’s counsel was served on the day counsel for the borrower filed his appearance and therefore, after this point all service should have been made upon the borrower’s attorney. The borrower proposed that this is mandatory language in the rule and was disregarded by the trial court in error.


Affirmed. A judgment is void and may be successfully collaterally attacked if the court lacks either subject matter or personal jurisdiction. If the court enters an erroneous judgment but the trial court is not divested of jurisdiction, then the order is voidable, but not void. On the question of an entry of appearance, Supreme Court Rule 104(d) says that the failure to deliver or serve copies required by the rule does not impair the jurisdiction of the court. Therefore, the court found there was no evidence indicating a lack of jurisdiction and so the order was not void.

Rules 13 and 101 require leave of the court when filing appearances more than thirty days after a complaint has been filed. The court determined that the denial of the motion was not in error because the trial court used appropriate discretion in determining that the borrower did not properly file or serve his additional appearance. As a result, the lender properly sent notice of its motions. 

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By: ATG Underwriting Department | Posted on: Wed, 12/12/2012 - 2:20pm