Fifth District affirms Kolker in divorce proceeding with third party foreclosure action

By Mary Ann Magnell | Oct 5, 2018

MOUNT VERNON, Ill.— The Fifth District Appellate Court has affirmed a St. Clair County Circuit Court’s decision that denied third-party respondent Wells Fargo Financial Illinois, Inc.’s petition for relief from a void judgment in a divorce case. 

The Sept. 26 decision affirms Associate Judge Chris Kolker.

Presiding Justice John B. Barberis, Jr. disagreed with Wells Fargo’s contention that the entry of a default order “constituted an unfair surprise,” did not provide proper notice and exceeded the requested prayer.

“Moreover, it is undisputed that Wells Fargo, although properly served, did not respond," Barberis wrote. "As such, we conclude that Wells Fargo’s claim of unfair surprise is meritless.” 

Additionally, the appellate court stated that because “Wells Fargo failed to demonstrate unfair surprise, we conclude that the circuit court’s default judgement was not void.” 

The appeal stemmed from a divorce case that dated back to 2007, when Gregg S. Blomenkamp filed for divorce from Teresa M. Blomenkamp. Although the marriage was dissolved in February 2010, all property issues were reserved. 

In May 2011, Wells Fargo brought a foreclosure action against the Blomenkamps, after which Gregg Blomenkamp filed a petition in the foreclosure action to consolidate the divorce and foreclosure proceedings. According to court documents, the foreclosure court denied the petition to consolidate.

According to the filing, Gregg Blomenkamp also filed a motion for leave to file an amended complaint in December of 2011 while the foreclosure action was still pending, requesting the circuit court to name Wells Fargo as a third-party respondent in the parties’ divorce proceeding because the validity of the mortgage was at issue.

The court granted the motion; and then an amended two-count complaint was filed, which alleged that Wells Fargo held a property interest in the marital residence and had moved to foreclose on the marital residence. Further, the amended complaint requested that that divorce court “determine Gregg B. and Teresa B.’s interests, as well Wells Fargo’s interest, if any, in the marital residence.” 

Although Wells Fargo’s counsel in the foreclosure received the copy of the amended complaint, the counsel responded that “he was not an authorized agent to accept service of the amended complaint.” On Dec. 21, 2011, the amended complaint was “properly served” to Wells Fargo’s registered agent, the ruling states. 

“Wells Fargo did not file an answer or other pleading within 30 days," Barberis wrote. 

In April 2012, the divorce court entered an order finding Wells Fargo in default for failing to file an answer to the amended complaint. Subsequently, in June of 2013, the Blomenkamps submitted a proposed order to the divorce court containing the terms of the marital settlement agreement.

The court approved and signed the proposed order, “finding that Wells Fargo’s interest in the marital residence had terminated on April 25, 2012, following entry of the default order.” The foreclosure court voluntarily dismissed Wells Fargo’s foreclosure complaint without prejudice and with leave to reinstate.

In July 2016, Wells Fargo “filed a motion to reinstate the foreclosure action,” which Gregg Blomenkamp objected to and cited the April 2012 default order that was entered in the divorce proceedings. 

Wells Fargo filed a petition in November 2016 “seeking to vacate the April 26, 2012 default order as void.”

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Kolker for Judge Twentieth Judicial Circuit of Illinois

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