LASALLE BANK NATIONAL ASSOCIATION,
as Trustee for Certificate holders of Bear Sterns
Asset Back Securities I LLC Asset Backed
Certificates, Series 2004-FR3,
UNKNOWN HEIRS AND LEGATEES OF
CANDICE WILLIS, DECEASED, AVANTA R.
WILLIS, ENRICO D. WILLIS, MORTGAGE
ELECTRONIC REGISTRATION SYSTEMS,
INC., as nominee for Fremont Investment & Loan,
UNKNOWN OWNERS and NON-RECORD
Held: The trial court erred in finding defendant Avanta R. Willis waived the issue of personal jurisdiction by filing documents with the court after entry of a default judgment and therefore, the trial court improperly denied defendant’s motion to vacate judgment and to quash service of summons. The judgment of foreclosure
and confirmation of judicial sale are vacated. The cause is remanded to the trial court for further proceedings.
The motion included defendant’s assertion that she was not a white woman as set forth in the proof of service, that she was not personally served with process in this case, and that a copy of the summons was “stuffed into her mail box.”
On January 12, 2010, new counsel entered his appearance on defendant’s behalf, and the court continued the cause for hearing. On January 26, 2010, defendant’s new counsel filed a reply to plaintiffs’ response to defendant’s motion to vacate judgment and quash service. In the reply, defendant stated that Karen Crohan, listed as the special process server on plaintiffs’ affidavit of service, was not a licensed detective in the State and was not appointed by the court to serve defendant. According to the reply, Crohan was an employee of Proveset LLC, a licensed detective agency. Also according to the reply, defendant again claimed that she was not served with summons, that plaintiffs failed to rebut defendant’s affidavit that she was not served, and that the trial court’s ex parte order of default was void.
On February 18, 2010, the trial court conducted a hearing on defendant’s motion to vacate judgment and quash service. Defense counsel argued to the court that plaintiffs’ affidavit of service indicated that the process server served a white female, that defendant was African American, that no one else lived with defendant and that the special process server did not comply with the relevant statutes. Plaintiffs’ counsel responded that defendant had waived the issue because defendant filed two prior petitions to vacate and that neither petition attacked personal jurisdiction.
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