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Cook v. Burnette6/26/2003
served with an alias summons and complaint on June 27, 1996. On May 16, 1997, the court entered a default order against Burnette as well.
Finally, on June 26, 1997 -the date the court set the cause for prove-up- the trial court entered a default judgment against all defendants, jointly and severally in the amount of $800,000, for failing to appear.
On October 1, 1999, LaSalle filed a motion to vacate the default under section 2-1401 of the Code of Civil Procedure. The motion alleged that Cook fraudulently concealed the grounds for relief; that once the default judgment was entered, LaSalle acted with due diligence in bringing the motion; and that LaSalle had a meritorious defense to Cook's claim in that LaSalle held only a mortgagee's interest in the property at issue. The motion was subsequently stricken, at LaSalle's request, and on November 22, 1999, LaSalle was granted leave to file an amended motion.
On December 17, 1999, LaSalle filed an amended motion to vacate the default judgment. That motion was based on the fact that the default judgment entered against it on June 26, 1997, was void ab initio. It argued that Cook's failure to include LaSalle in the complaint's prayer for relief was a fatal flaw that rendered the judgment against LaSalle void; however, it did not use section 2-1401 as a basis for its argument. In addition to filing the amended motion to vacate the judgment, LaSalle also filed a section 2-619 motion, under the Code of Civil Procedure (735 ILCS 5/2-619 (West 1998)), to dismiss Cook's complaint alleging that it had no interest in the subject property and, therefore, no duty to inspect or maintain that property.
Earlier, on September 19, 1999, Bank One filed its own section 2-1401 petition to vacate as well. There, Bank One also argued that because Cook had fraudulently concealed the entry of the default judgment, its petition was timely even though the two-year limitations period of section 2-1401 had expired. Bank One also claimed that it had a meritorious defense because it only had an interest as trustee of an assigned mortgage in the property.
On November 22, 1999, Bank One filed an amended two-count petition to vacate the judgment. The first count alleged that the June 26, 1997, judgment was void for not complying with Supreme Court Rule 105 (134 Ill. 2d R. 105) because the prayer section of the complaint did not request monetary or any other relief from Bank One. If Cook wished to obtain relief from Bank One other than that indicated in the prayer, it argued, he needed to amend his complaint. Further, it alleged that the complaint did not state a cognizable claim against Bank One, a mortgagee of the property. The second count requested that the judgment be vacated pursuant to section 2-1401.
Cook then filed motions to dismiss Bank One's and LaSalle's amended petitions pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 1998)). However, before Judge Fleischman could rule upon these motions, he passed away. Consequently, the motions were transferred to Judge Varga, who heard them on March 16, 2000. On that date, Bank One moved instanter that the court deny Cook's motion against it on the grounds that the default judgment was void. Furthermore, it requested that it be allowed to withdraw count II, the section 2-1401 portion of its petition, and that the court grant count I of its amended petition to vacate the default judgment as void.
After extensive argument, the trial court granted both LaSalle's and Bank One's motions to vacate the default judgment of June 26, 1997. It reasoned that because Cook's complaint at law did not pray for any relief against LaSalle and Bank On
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