Collateral Attack on Order Nixing Attempt to Enforce $700K Settlement Offer Fails – IL 1st Dist.

The First District appeals court recently examined the collateral attack doctrine – which immunizes a court’s judgment from challenge in a separate judicial proceeding – in a case flowing from failed settlement talks.

The defendants in Tielke v. Auto Owners Insurance Company, 2019 IL App(1st) 181756, four years after a 2013 personal injury suit was filed, made an eve-of-trial verbal offer to settle for $700,000.

The plaintiff’s counsel verbally accepted the offer the next day before trial started.  Defendants’ counsel responded by saying “offer withdrawn.”

After plaintiff’s motion to enforce the settlement offer was denied by the personal injury case trial judge, the case proceeded to trial. Plaintiff was awarded less than half of the withdrawn $700,000 offer.  The trial judge told the plaintiff’s counsel he should file a breach of contract action at a later date.

A few weeks later, plaintiff did just that: it filed a separate breach of contract action to recover the difference between the withdrawn offer and the personal injury case judgment (about $400,000). The theory was that defendant breached an enforceable agreement to settle the personal injury suit.

The trial court dismissed the breach of contract action on defendant’s Section 2-619 motion.  The basis for the motion was that the breach of contract suit was an improper collateral attack on an order (the one denying the motion to enforce settlement) entered in the 2013 personal injury suit.

Affirming, the First District held that under the collateral attack doctrine, a court’s final judgment can only be attacked through direct appeal or a post-judgment motion to reconsider or to vacate the judgment.  735 ILCS 5/2-1203, 2-1301, 2-1401, etc.

The collateral attack rule bars later lawsuits that would effectively modify a former adjudication in another lawsuit. Both final and interlocutory (non-final) orders are immune from collateral attack. [¶31]

The appeals court found that by filing a separate breach of contract action, the plaintiff was trying to end-run the order denying her motion to enforce the settlement agreement in the 2013 personal injury suit.  Plaintiff failed to either move to reconsider the denial of her motion to enforce the settlement (which she could have done under Code Section 2-1203) or file a notice of appeal (pursuant to Rule 303).

By failing to file a motion to vacate the personal injury case court’s order denying the settlement motion or to appeal from the order, plaintiff failed to preserve the issue (whether the motion to enforce was properly denied) for review.  This precluded a later challenge to the order in subsequent litigation.

The court also rejected plaintiff’s argument premised on the personal injury case judge’s erroneous advice: that the plaintiff should proceed with the trial and later file a breach of contract action. The appeals court cited Illinois Supreme Court precedent that held “a party should not be excused from following rules intended to preserve issues for review by relying on a trial court’s erroneous belief.” [¶ 43], citing to Bonhomme v. St. James, 2012 IL 112393, 26 (2012).


Tielke illustrates in sharp relief how crucial it is for litigants to properly preserve issues for review and to exhaust all avenues to challenge a trial court’s order.  Here, the plaintiff should have either moved to reconsider the personal injury judge’s denial of the motion to enforce the oral settlement agreement or directly appealed the order. In the same case.

Instead, by following the trial court’s flawed advice and filing a subsequent lawsuit, the plaintiff’s claim was barred by the collateral attack doctrine.



LLC’s Attempt to Void Foreclosure Judgment Rejected; ‘BFP’ Protected – IL First Dist.

A New Mexico LLC’s attempt to collaterally attack a mortgage foreclosure judgment five years after its entry fell flat in US Bank v. Laskowski, 2019 IL App (1st) 181627.  The case discusses the elevated level of proof required to successfully contest service of process when the property rights of a bona fide purchaser for value (a “BFP”) are at stake.

In 2009, the lender plaintiff filed a mortgage foreclosure suitagainst an individual borrower.  That borrower defaulted and in 2010 the trial court entered a foreclosure judgment.  The lender eventually sold the subject property to the BFP in 2011.

In 2016, the LLC, a non-party affiliated with the borrower that recorded an equitable interest in the property several years prior, sought to vacate the foreclosure judgment and the pertinent orders leading up to it.

The LLC moved under Code Section 2-1401(f) – the statute that allows a litigant to challenge a judgment as void for lack of jurisdiction.  The movant arguedthat since it was only served by publication – a method disallowed by the Illinois LLC Act – the trial court lacked personal jurisdiction over the LLC.

The property owner successfully moved to dismiss the LLC’s petition and the LLC appealed.

Affirming dismissal, the First District first considered whether the petitioning LLC was a necessary party to the foreclosure case.

The necessary parties to a mortgage foreclosure suit include the mortgagor and other persons (not guarantors) “who owe payment of indebtedness or the performance of other obligations secured by the mortgage and against whom personal liability is asserted.” 735 ILCS 5/15-1501(a).

Other persons, such as mortgagees or claimants, may be joined, but they don’t have to be.  A failure to include a permissive party to a foreclosure suitwill not impact a trial court’s jurisdiction.  [¶18]

Here, the operative foreclosure complaint named only the individual borrower as a defendant.  Since the LLC was neither the mortgagor nor someone against whom personal liability was asserted, the LLC was not a necessary party to the foreclosure suit. (and not the LLC).

The court further held that the LLC’s equitable interest in the property did not transform its interest into that of a mortgagor (who would have been a necessary party).  The Court defined a beneficial interest as an expectancy interest only: it does not rise to the level of legal title. [¶ 20]

Next the Court considered whether the BFP property’s current owner was immunized from the LLC’s attempt to vacate the judgment.

Section 2-1401(e) protects BFPs from void judgments affecting real estate title.  A BFP is protected so long as the defect in service is not apparent from the face of the record and the BFP was not a party to the original action. Where there is no defect on the face of the record, the BFP is insulated from a challenge to an otherwise faulty judgment. [¶ 25]

Here, the record reflected the LLC was properly served.  While the LLC claimed the wrong entity was served (a similarly named Illinois business was served according to the return of service on file), a third party would not have known this (i.e, it would not have been readily apparent) from the four corners of the record.

Instead, discovering the service infirmity would have required a BFP to go “beyond the face of the record”: it would have to cross-reference New Mexico’s Secretary of State records with Illinois’s to learn that the wrong entity was served.

Since it would have been such a time-consuming and laborious task to unmask whether the proper LLC was served, the Court protected the BFP and denied the LLC’s petition.


This case reiterates that only a mortgagor and non-guarantors subject to personal liability under a mortgage are necessary parties to a foreclosure suit.  Laskowski also reaffirms that a BFP is a favorite of the law.  For while a void judgment can be attacked at any time, courts will side with a BFP who could be harmed by a nullified foreclosure judgment.


Don’t Confuse Joint Tenancy with Tenancy-By-Entirety Ownership – Indiana Court Cautions

Title to real estate is typically held in one of three ways: tenancy in common, joint tenancy and tenancy by the entirety.

The salient characteristic of tenancy in common is that each owner holds a ½ interest in the property and that upon an owner’s death, his/her share passes to his/her heir.

Joint tenancy’s hallmark is its survivorship feature: when a joint tenant dies, his/her share passes to the surviving joint tenant. The deceased’s interest will not pass to an heir.

With tenancy by entirety (“TBE”) ownership, sometimes described as “joint tenancy with marriage,” the property is immune from one spouse’s creditor’s judgment lien. This means the creditor of one spouse cannot foreclose on the TBE property. However, to qualify for TBE protection, the parties must be married and live in the property as a primary residence. If the property owners are married but do not use the home as the marital homestead, TBE won’t shield the property from creditor collection efforts.

In Flatrock River Lodge v. Stout, 130 N.E.2d 96 (Ind. Ct. App. 2019), an Indiana appeals court delved into the joint tenancy vs. TBE dichotomy and how the difference between the two realty title vehicles dramatically impacts a judgment lien’s enforceability.  The trial court denied the creditor’s motion to foreclose a judgment lien because the subject real estate was held in joint tenancy. On appeal, the Court considered whether a judgment creditor could foreclose on joint tenancy property, force its sale, and apply the proceeds against the judgment.

The judgment debtor owned real estate in joint tenancy with his daughter. The debtor died during pendency of the lawsuit and by operation of law, the title to the property vested in the daughter. Before the debtor died, however, the plaintiff/creditor recorded its judgment lien against the property.

The creditor moved to foreclose its judgment lien against the property. The debtor’s daughter argued the property was exempt from execution by Indiana’s tenancy-by-entirety statute (the TBE statute). Indiana Code Section 34-55-10-2(c)(5).  The trial court agreed with debtor’s daughter and denied the creditor’s motion.

Reversing, the Indiana appeals court first rejected the defendants’ argument that since the debtor died, the property escaped plaintiff’s lien. The court noted that the plaintiff’s judgment lien attached from the moment it recorded its judgment against the property – some two years before debtor’s death. As a result, the debtor’s daughter took the property subject to the plaintiff’s lien.

Next, the appeals court rejected the trial court’s finding that the property was immune from the plaintiff’s judgment lien.

In a joint tenancy, each tenant acquires an equal right to share in the enjoyment of the land during their lives. A joint tenant is severed where one joint tenant conveys his/her interest to another and destroys the right to survivorship in the other joint tenant(s). Once a joint tenancy conveys his/her share to another, he/she becomes a tenant in common with the other co-tenant.

Each joint tenant can sell or mortgage his/her interest in property to a third party and most importantly (for this case at least), each joint tenant is subject to a judgment creditor’s execution. [8]

TBE ownership only exists between spouses and is grounded in legal fiction that husband and wife a single unit. A TBE cannot be severed by the unilateral action of one tenant. An attempted transfer of a TBE ownership interest by only one spouse is a legal nullity. The key difference between joint tenancy and TBE is that with the latter, a creditor of only one spouse cannot execute on the jointly owned property

The Court noted that under Indiana Code 34-55-10-2(c)(5), property held in TBE is exempt from execution of a judgment lien. However, this statute applies uniquely to TBE ownership; not to joint tenancy. According to the court, “[h]ad the Indiana legislature intended to exempt from execution real estate owned as joint tenants, it would have done so.” [14]


This case shows in stark relief the perils of conflating joint tenancy and tenants-by-entirety ownership. If a property deed does not specifically state tenancy by the entirety, the property will not be exempt from attachment by only one spouse’s creditor.