Search:

Financial Services Quarterly

National City Bank v. Majerczyk
January 4, 2012

In a recent decision, the appellate court of Illinois brought common sense to the table when it ruled that a stamped signature was just as good as a signed signature on a summons. The case is important because an opposite conclusion would have called into question a vast majority of default judgments.

The case, National City Bank v. Majerczyk, decided on December 23, 2011, exemplifies the latest tactic used by borrowers who are facing foreclosure and the technical challenges to the foreclosure process. In this particular case, the defendants challenged the court’s jurisdiction over them because the summons that was served upon them was issued by the clerk’s office using a stamp of her signature rather than a cursive, written signature. The defendants claimed that Illinois Supreme Court rule 101(a)’s requirement that a summons be “issued under the seal of the court, [at]tested in the name of the clerk, and signed with his name” was violated because the clerk’s name was stamped and not “signed.”

Thankfully, the trial court denied the defendant’s motion to vacate, and the appellate court affirmed the denial. The decision appeared to be an easy one for the appellate court as the opinion is less than three pages in length and ended with them holding that they could find no authority for the proposition that the stamped name of the clerk was insufficient for the proper issuance of a summons.

While this case utilized common sense to decide, and appeared to be a simple one to decide, the appellate court failed to mention, perhaps intentionally, what the effect would have been if the decision had gone the other way.

In order to be valid, a summons must be signed by the clerk, and most Circuit Clerk’s offices utilize a stamp of the elected clerk’s signature on summonses to show that it has been properly issued. After a party has been served with a summons, if they file an appearance in court the issue of the court’s jurisdiction is usually not an issue any longer. However, if no appearance is filed by the defendant, a judgment by default can be obtained against them once proof of the service of a validly-issued summons is presented to the court.

If the Majerczyk case had been decided in favor of the defendant’s, every single default judgment in Illinois that was obtained after a defendant had been properly served with a stamped, not signed, summons would have been void; not voidable, but void. Judgments of foreclosure could be vacated and banks and title companies would be flooded with suits to recover foreclosed homes and credit card companies would be subject to class action lawsuits for collecting on void judgments while collection attorneys would be sued for violating the Fair Debt Collection Practices Act due to their using illegal methods to obtain judgments, etc. The list of problems that likely would have occurred can go on and on.

Fortunately, the appellate court used common sense and reason to block this stamped vs. signed argument and made the correct decision. Tomorrow, another defendant will likely make a different argument in an effort to thwart the foreclosure process. Therefore, banks and their attorneys must continue the fight. If the bank had not resisted the efforts of the defendants and argued against their motion at the trial court and continued their argument in the appellate court, the outcome could have been different. Banks must continue to stand against borrowers who attempt legal trickery and technical arguments to keep the banks from foreclosing.

This alert was written by Michael G. Cortina.