2014 IL App (1st) 132075 No. 1-13-2075 Opinion filed June 27, 2014 FIFTH DIVISION
IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT BANK OF AMERICA, N.A., Successor by Merger to ) Ap peal from the BAC Home Loans Servicing, LP, f/k/a ) Circuit Court of Countrywide Home Loan Servicing, LP, ) Cook County. ) Plaintiff-Appellee, ) v. ) No. 09 CH 39432 ) MARTA KULESZA and TOMASZ SKUTNIK, ) ) Defendants-Appellants ) ) (National City Bank, Unknown Owners and Nonrecord ) Claimants, ) ) Honorable Defendants). ) Allen Price Walker, ) Judge Presiding.

JUSTICE McBRIDE delivered the judgment of the court, with opinion. Presiding Justice Gordon and Palmer concu rred in the judgment and opinion.

OPINION ¶ 1 Plaintiff, Bank of America, N.A., filed a mortgage foreclosure complaint in October 2009, against defendants Marta Kulesza and Tomasz S kutnik. In August 2010, a default judgment and judgment for foreclosure and sale were entered in plaintiff's favor. A judicial sale occurred in November 2011, and the trial court gran ted plaintiff's motion to confirm the sale in April 2012. In October 2012, defendants filed a mo tion to vacate pursuant to section 2-1401 ofNo. 1-13-2075

2

the Code of Civil Procedure (735 ILCS 5/2-1401 (Wes t 2012)). Plaintiff filed a motion to dismiss defendant's motion, which the trial court g ranted in June 2013. ¶ 2 Defendants appeal, arguing that the trial court err ed in granting the motion to dismiss because original plaintiff BAC Home Loans Servicing , LP (BAC), is not a subsidiary of substituted plaintiff Bank of America, N.A. (BoA), and, therefore, BAC is not exempt from the Illinois Collection Agency Act (Collection Act) (22 5 ILCS 425/1 et seq . (West 2012)) and any judgment entered is void. ¶ 3 In October 2009, plaintiff filed a complaint to for eclose the mortgage against defendants. The complaint alleged that on February 15, 2006, de fendants, as mortgagors, executed a mortgage in the amount of $1,130,500, for the prope rty located at 2200 Harrison Street in Glenview, Illinois. The complaint stated that defe ndants had not paid the monthly payments since February 2009. Defendants were personally se rved in October 2009. ¶ 4 In January 2010, plaintiff filed a motion for entry of an order of default and judgment of foreclosure and sale. Plaintiff refiled this motio n in March 2010, June 2010, and August 2010. On August 18, 2010, the trial court found defendant s to be in default and entered a judgment of foreclosure and sale. Plaintiff filed a notice of sale for November 22, 2010. On November 17, 2010, Kulesza filed a pro se motion to stop the sheriff's sale. The trial cour t denied Kulesza's motion without prejudice on November 19, 2010. ¶ 5 Plaintiff reset the judicial sale for November 28, 2011. In December 2011, plaintiff filed a motion for an order approving the report of sale and distribution. Plaintiff also filed a motion to substitute BoA as named plaintiff because BAC ha d merged into BoA. ¶ 6 On January 24, 2012, an attorney filed an appearanc e for defendants. The trial court set a briefing schedule for plaintiff's motion to approve the sale, but defendants failed to file a brief.No. 1-13-2075

3

On April 11, 2012, the trial court entered an order approving the report of sale and distribution, confirming the sale and order of possession. The t rial court also granted plaintiff's motion to substitute BoA as party plaintiff. ¶ 7 On October 15, 2012, defendants filed a motion to v acate pursuant to section 2-1401 of the Code of Civil Procedure. Defendant argued in t heir motion as follows.

"1. This lawsuit was filed by BAC Home Loan Serv ice, LP as Plaintiff. 2. At the time this lawsuit was filed, plaintiff was not a registered debt collector as shown in the attached IDFPR [Illinois Department of Financial and Professional Regulation ] Inquiry. See affidavit of Stephen D. Richek attached. 3. Servicing Mortgages is clearly an activity in the purview of a debt collector and the main business of a Mort gage Service is a debt collection activity, see 205 ILCS 635/1-4. 4. An unregistered debt collector cannot act as a Plaintiff in a lawsuit LVNV v. Trice and all orders entered are void. WHEREFORE, Defendant's pray that all orders in the case be vacated and the case be dismissed." ¶ 8 The affidavit attached from their attorney stated t hat he received a response from the Secretary of State that BAC "was never registered i n Illinois as a debt collector." The certification from the Secretary of State, dated De cember 5, 2011, stated that BAC "does not now hold nor has ever held a license" under the Col lection Act.No. 1-13-2075

4

¶ 9 In February 2013, plaintiff filed a motion to dismi ss defendants' section 2-1401 petition. In its motion, plaintiff argued that defendants' se ction 2-1401 petition should be dismissed pursuant to section 2-615 of the Code of Civil Proc edure (735 ILCS 5/2-615 (West 2012)) because defendants failed to allege sufficient fact s to support their assertion that plaintiff's complaint was void since BAC is not a registered de bt collector under the Collection Act. In response, defendants stated that plaintiff's motion to dismiss must fail because (1) plaintiff cannot refute that BAC is an unlicensed debt collec tor based on its unsupported statement that BAC is a subsidiary of BoA, and (2) "defendants are confused as to how a Limited Partnership (LP) can be subsidiary. A Limited Partnership requ ires more than one (1) partner so it is not a subsidiary." ¶ 10 Plaintiff's reply asserted that defendants' respons e was "ultimately bereft of any argument that their Petition is viable and of merit." Plain tiff contends that defendants' petition has failed to allege sufficient facts to support their allegation s. Plaintiff also attached documents setting forth that BAC was a subsidiary of BoA at the time the co mplaint was filed. One document was a portion of a list of BoA's direct and indirect subs idiaries as of December 31, 2009, which included BAC in the list. The second document was a corporate disclosure statement filed in district court case in the Southern District of Ind iana stating, "0.1% of BAC Home Loans Servicing, LP is owned by BAC GP, LLC, and 99.9% of BAC Home Loans Servicing, LP is owned by BANA LP, LLC. Both BAC GP, LLC and BANA L P, LLC are wholly-owned subsidiaries of Bank of America, N.A." In June 201 3, the trial court granted plaintiff's motion to dismiss with prejudice. ¶ 11 This appeal followed.No. 1-13-2075

5

¶ 12 On appeal, defendants argue that plaintiff is not e xempt from the Collection Act because BAC is not a subsidiary of BoA. Plaintiff maintain s that defendants' claim is meritless because BAC was exempt from the Collection Act. ¶ 13 Generally, a section 2-1401 petition must show the existence of a meritorious defense to the original action and must show due diligence in bringing the petition. Sarkissian v. Chicago Board of Education , 201 Ill. 2d 95, 103 (2002); see also 735 ILCS 5/2 -1401(b), (c) (West 2012). However, the supreme court in Sarkissian held that pursuant to paragraph (f) of section 2-1 401, the general rules for filing a section 2-1401 petit ion do not apply to petitions challenging a judgment on voidness grounds. Sarkissian , 201 Ill. 2d at 104. "Petitions brought on voidne ss grounds need not be brought within the two-year tim e limitation. Further, the allegation that the judgment or order is void substitutes for and negat es the need to allege a meritorious defense and due diligence." Sarkissian , 201 Ill. 2d at 104. ¶ 14 " '[A] judgment, order or decree entered by a court which lacks jurisdiction of the parties or of the subject matter, or which lacks the inhere nt power to make or enter the particular order involved, is void, and may be attacked at any time or in any court, either directly or collaterally.' " Sarkissian , 201 Ill. 2d at 103 (quoting Barnard v. Michael, 392 Ill. 130, 135 (1945)). Here, defendants’ postjudgment motion arg ues that BAC was not a licensed debt collector under the Collection Act and, thus, all o rders entered by the court are void. "Review of a judgment on a section 2-1401 petition that is req uesting relief based on the allegation that the judgment is void shall be de novo ." Protein Partners, LLP v. Lincoln Provision, Inc. , 407 Ill. App. 3d 709, 716 (2010) (citing People v. Vincent , 226 Ill. 2d 1, 18 (2007)). ¶ 15 The purpose of the Collection Act is toNo. 1-13-2075

6 " 'protect consumers against debt collection abuse. ' 225 ILCS 425/1a (West 2010). It provides that '[n]o collect ion agency shall operate in this State, *** engage in the business o f collecting, solicit claims for others, *** exercise the right t o collect, or receive payment for another of any account, bill or other i ndebtedness, without registering under this Act.' 225 ILCS 425/ 4 (West 2010). The [Collection] Act defines a 'collection agency' or a 'debt collector' as 'any person who, in the ordinary cour se of business, regularly, on behalf of himself or herself or other s, engages in debt collection.' 225 ILCS 425/2 (West 2010). 'Debt co llection' is defined as 'any act or practice in connection with the collection of consumer debts' and ' "[c]onsumer debt" *** means m oney, property, or their equivalent, due or owing or alle ged to be due or owing from a natural person by reason of a consumer credit transaction.' Id. Finally, a 'consumer credit transaction' is a 'transaction between a natural person and another p erson in which property, service, or money is acquired on credit b y that natural person from such other person primarily for persona l, family, or household purposes.' Id. " Aurora Loan Services, LLC v. Kmiecik , 2013 IL App (1st) 121700, ¶ 28. ¶ 16 However, section 2.03(1) of the Collection Act prov ides for certain exemptions:

"This Act does not apply to persons whose collectio n activities are confined to and are directly related to the operati on of a businessNo. 1-13-2075

7 other than that of a collection agency, and specifi cally does not include the following: 1. Banks, including trust departments, affiliates, and subsidiaries thereof, fiduciaries, and financing an d lending institutions (except those who own or operate colle ction agencies)[.]" 225 ILCS 425/2.03(1) (West 2012). ¶ 17 This court has already held in Kmiecik that bank subsidiaries are exempt from the Collection Act. Kmiecik , 2013 IL App (1st) 121700, ¶ 38. ¶ 18 Defendants assert without citation to any case law that BAC could not be a subsidiary of BoA because under the Collection Act, "only subsidi aries are exempt, not a limited partnership that is owned by Banks' subsidiaries." Supreme Cou rt Rule 341(h)(7) requires an appellant to include in its brief an "[a]rgument, which shall co ntain the contentions of the appellant and the reasons therefor, with citation of the authorities and the pages of the record relied on." Ill. S. Ct

. R. 341(h)(7) (eff. July 1, 2008). It is well settl ed that a contention that is supported by some argument but does not cite any authority does not s atisfy the requirements of Supreme Court Rule 341(h)(7), and bare contentions that fail to c ite any authority do not merit consideration on appeal. Wasleff v. Dever , 194 Ill. App. 3d 147, 155-56 (1990). ¶ 19 Contrary to defendants' contention, the Collection Act does not limit exemptions to firsttier subsidiaries. According to the exhibits provi ded in the trial court, BAC was owned by entities that were subsidiaries of BoA. The cardin al rule in construing a statute, to which all others are subordinate, is to ascertain and give ef fect to the intent of the legislature. Alvarez v. Pappas , 229 Ill. 2d 217, 228 (2008). To determine legisl ative intent, we turn to the language of the statute, which is the best indicator of its int ent. Alvarez , 229 Ill. 2d at 228. “[A]ll words andNo. 1-13-2075

8

phrases must be interpreted in light of other relev ant provisions of the statute and must not be construed in isolation.” Brucker v. Mercola , 227 Ill. 2d 502, 514 (2007). “Each word, clause and sentence of the statute, if possible, must be g iven reasonable meaning and not rendered superfluous.” Brucker , 227 Ill. 2d at 514. Further, we may not add prov isions that are not found in a statute. Acme Markets, Inc. v. Callanan , 236 Ill. 2d 29, 38 (2009). ¶ 20 Nothing in section 2.03(1) limits exemptions to fir st-tier subsidiaries, and we will not read into its language any additional language impo sing such a limitation. Moreover, we note that the legislature included a limitation to "any first tier subsidiary of a bank" for an exemption in the Residential Mortgage License Act of 1987 (20 5 ILCS 635/1-4(d)(1)(ix) (West 2012)). "It is a generally accepted canon of construction that the express inclusion of a provision in one part of a statute and its omission in a parallel section is an intentional exclusion from the latter." People v. Olsson , 2011 IL App (2d) 091351, ¶ 9. The absence of tha t language in the exemption provision of section 2.03(1) cannot be ignored as d efendants' assert. ¶ 21 Under well-established precedent and specifically u nder the holding of Kmiecik , we can take judicial notice that other judicial decisions have recognized that BAC is a subsidiary of BoA. "An appellate court may take judicial notice of readily verifiable facts if doing so 'will "aid in the efficient disposition of a case," ' even if judicial notice was not sought in the trial court." Kmiecik , 2013 IL App (1st) 121700, ¶ 37 (quoting Department of Human Services v. Porter , 396 Ill. App. 3d 701, 725 (2009), quoting Muller v. Zollar , 267 Ill. App. 3d 339, 341-42 (1994)). "Specifically, a reviewing court may take judicial notice of a written decision that is part of the record of another court because these decisions are readily verifiable facts that are capable ofNo. 1-13-2075

9

' "instant and unquestionable demonstration." ' " Id. (quoting Hermesdorf v. Wu , 372 Ill. App. 3d 842, 850 (2007), quoting May Department Stores Co. v. Teamsters Union Local No. 743 , 64 Ill. 2d 153, 159 (1976), quoting 9 John Henry Wigmore, E vidence § 2571, at 548 (3d ed. 1940)). ¶ 22 Here, plaintiff submitted documentation from a fede ral case detailing BAC's ownership by two subsidiaries of BoA and BoA's list of its su bsidiaries, which includes BAC. We also observe that numerous cases from other jurisdiction s have recognized that BAC was a subsidiary of BoA. See Ridenour v. Bank of America, N.A. , No. 13-cv-0317-BLW, 2014 WL 2452990, at *1 (D. Idaho May 22, 2014) ("BAC Home Loans Servici ng, LP (a Bank of America subsidiary created to service acquired loans)"); Pniewski v. U.S. Bank National Ass'n , No. 13 C 3638, 2014 WL 1052813, at *1 (N.D. Ill. Mar. 19, 2014) ("BAC H ome Loans Servicing, LP (BAC), a subsidiary of Bank of America, N.A."); Bank of America, N.A. v. Stewart , 2014-Ohio-723, ¶ 4 ("BAC Home Loans Servicing, LP, a subsidiary of Ban k of America, N.A."); Walker v. Bank of America, N.A. , No. 11-783 ADM/JSM, 2013 WL 5771154, at *1 n.1 (D . Minn. Oct. 24, 2013) ("At the time, BAC was a wholly-owned subsidiary of Bank of America; it merged into the Bank of America in July 2011."); Kolbe v. BAC Home Loans Servicing, LP , 738 F.3d 432, 438 n.3 (1st Cir. 2013) ("BAC Home Loans Servicing was a wh olly owned subsidiary of Bank of America, N.A., which itself is a wholly owned subsi diary of Bank of America Corporation, the publicly traded company. BAC Home Loans Servicing has merged into Bank of America, N.A."); In re Atkins , 497 B.R. 568, 569 (Bankr. D. Minn. 2013) ("Both l oans are serviced by BAC Home Loan Servicing, LP., a subsidiary of Bank of America, N.A."). ¶ 23 We take judicial notice of these written decisions and find that BAC was a subsidiary of a BoA and was exempt from the Collection Act. As we held in Kmiecik , we need not reach the question of whether a mortgage foreclosure action q ualifies as debt collection under theNo. 1-13-2075

10

Collection Act. Therefore, we find the trial court properly granted plaintiff's motion to dismiss defendants' section 2-1401 petition and we need not consider defendants' additional arguments that the foreclosure judgment was void under the Co llection Act. ¶ 24 Based on the foregoing reasons, we affirm the decis ion of the circuit court of Cook County. ¶ 25 Affirmed.