U.S. Bank Nat. Ass'n v. Luckett (IL)

Summary: Error in foreclosure sale purchaser's corporate name, which appeared in the caption of the forcible entry complaint and notice filed by purchaser, was a misnomer and thus correctable through motion to amend.


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U.S. Bank Nat. Ass'n v. Luckett, 2013 IL App (1st) 113678 (2013).


Facts: Homeowner Jean Prabhakaran fell into default on a mortgage held on her property in Maywood, Illinois, which was foreclosed upon by U.S. Bank, the original mortgagee’s successor. After foreclosure had been completed, Prabhakaran sought to forestall U.S. Bank’s repossession of the property through numerous motions, but the court found the foreclosure and sale was valid. During the foreclosure process, U.S. Bank discovered that the homeowner’s relatives, Michael Luckett and Ruby Wilson, were living at the property. Plaintiff, U.S. Bank National Association, as trustee for Credit Suisse First Boston HEAT 2005-5, sought a forcible entry and detainer action against defendants, Michael Luckett, Ruby Wilson and unknown occupants, claiming that it was entitled to possession of the property from Luckett and Wilson.

Before filing the case, U.S. Bank's attorneys issued a preeviction notice pursuant to the Illinois Mortgage Foreclosure Law, 735 ILCS 5/15-1701 (2010). The preeviction notice stated that the property was now owned by "Bank National Association, as Trustee for Credit Suisse First Boston HEAT 2005-5." The name of the owner was incorrect in that it omitted the characters "U.S." before the bank’s name. The trial court pleadings contained the same omission. However, the order of confirmation of sale correctly listed the plaintiff’s name with the additional characters “U.S.” in the caption. The trial court granted U.S. Bank's motion to amend the complaint it filed for forcible entry and detainer correcting its name and entered a nunc pro tunc order to reflect the bank’s correct name. Luckett and Wilson, the holdover tenants, appealed.


Holding: Affirmed.On appeal, defendants Luckett and Wilson argued that the amended complaint was null and void because U.S. Bank did not effect proper service of a preeviction notice pursuant to statute and that the court improperly amended nunc pro tunc. Defendants claimed that the mistake was not a misnomer created by a scrivener's error, but rather a case of mistaken identity. Defendants also argued that U.S. Bank was required to pay sanctions for costs and expenses because an action was brought in the name of a nonexistent entity.

The appellate court found that the lower court properly allowed the amendment regarding the correction of misnomers. The appellate court stated that “[t]he very awkwardness of the [] name itself suggests to the reader that it may be a misnomer, which is the use of an incorrect name of a person in a pleading.” The court found that although the nunc pro tunc language used by the lower court was unnecessary because the correction related back to the timely-filed original pleadings, the lower court exercised proper authority in amending the pleadings and relating them back to the original filing.

Regarding defendant’s mistaken identity claim, the court looked to misnomer cases for guidance. The court determined that while an opposing party may require a misnomer be corrected, that party cannot force a dismissal for a misnomer or due to slight variations in a plaintiff’s name. The court held that a misnomer can be corrected through a motion to amend. The court determined that in misnomer cases, like the one at hand, the relation-back doctrine applies automatically to amendments correcting the misnomer and the nunc pro tunc language used by the lower court was merely superfluous.

The court also found that sanctions were not appropriate in this case because they are used to prevent parties from abusing the judicial process and the incorrect name here was minor and a nonprejudicial clerical error.


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By: ATG Underwriting Department | Posted on: Tue, 12/10/2013 - 3:03pm