Page 32 - John Hundley 2013

Misnomer, Not Mistaken Identity, Justifies Relief

A plaintiff’s misnaming of itself in forcible entry and detainer papers against a poaching resident who
had no contact with it was excusable, the Appellate Court’s First District has reasoned. In U.S. Bank N.A.
v. Luckett, 2013 IL App (1st) 113678, a lender sought to evict persons whom it found to be in possession
of the premises after it had purchased them at its foreclosure sale. However, due to a word processing
error, the papers omitted the term “U.S.” at the outset of its name and purported to proceed on behalf of
“Bank National Association”. Rejecting defendants’ attempts to seize upon the error to defeat the action,
the panel noted courts are more willing to allow relief when the issue is one of misnomer than when it is
one of mistaken identity. See Sharp Thinking No. 79 (Dec. 2012); No. 17 (Feb. 2009); No. 8 (May 2008).

Even Sale and Re-Sale Don’t Protect Void Judgment

Not even the fact that the property has been sold and re-sold prevents vacation of the underlying
default judgment and sale if those steps occurred without proper service of summons and complaint upon
defendants, a panel in the Appellate Court’s First District has ruled.

The court reasoned that a judgment entered without jurisdiction over the parties is void and that
voidness cannot be overcome either by the passage of time or by subsequent steps such as the sale. It
distinguished U.S. Bank N.A. v. Prabhakaran, 2013 IL App (1st) 111224 (see Sharp Thinking No. 89 (May
2013)), as not involving a judgment void for lack of proper service of process. MB Fin. Bank, N.A. v. Ted
& Paul, LLC, 2013 IL App (1st) 122077.

Local Federal Court Rules Need Not Be Strictly Enforced

Local federal court “rules” are perhaps more properly characterized as guidelines under a recent
decision of the Seventh Circuit Court of Appeals.

In Modrowski v. Pigatto, 712 F.3d 1166 (7th Cir. 2013), the court said a trial court has discretion
whether to enforce local rules strictly. “[L]itigants have no right to demand strict enforcement of local rules
by district judges,” the panel said. It said that unless the trial court enforces or relaxes the rules
unequally, the decision “to overlook any transgression . . . is left to the district court’s discretion.”

Request for Order Submits Movant to Court’s Jurisdiction

An application to the court for a ruling or an order is a “motion,” and a non-party who makes one
thereby submits herself to the jurisdiction of the court even if she has not been served with process, a
panel in the Appellate Court’s First District has held.

In re Estate of Burmeister, 2013 IL App (1st) 121776, was a probate matter in which the executor also
was trustee of a trust. After the court ordered her to make a distribution from the trust, she claimed she
was not a party to the probate case in her capacity as trustee and that the order hence was invalid.
Noting that her prior court papers had sometimes referred to her as trustee, the panel said her previous
application to the trial court for a ruling on a trust matter waived the requirement of personal service to
bring her as trustee into the case.

- John T. Hundley, jhundley@lotsharp.com, 618-242-0246
John\SharpThinking\#96.doc
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