Class Challenges Foreclosures in Chicago

CHICAGO (CN) - Wells Fargo, Bank of America and other mortgage lenders have been improperly serving summonses in Cook County foreclosure cases since 2007, and a class action demands that everyone served under a court-ordered procedural change be "deeded their properties back." The class claims that the presiding judge of Cook County Chancery Court approved the rule change, improperly assuming a legislative function, violating the separation of powers.

The class action in Chancery Court challenges an administrative order allowing mortgage companies to issue "blanket appointments" to process servers before a case is filed.

Lead plaintiff David Washington says the order is unlawful because only the Legislature has the power change service procedure.

"This case concerns a misguided plan to change and simplify the procedure for serving process in Cook County foreclosure actions filed by major lenders, loan servicers and holders of mortgage liens," the complaint states. "That plan, hatched by those lienholders, and presented to the presiding judge of the Chancery Division of the Circuit Court of Cook County ... went awry because it failed to respect the constitutionally required separation of powers between the Illinois Legislature and the Illinois judiciary."

Wells Fargo foreclosed on Washington's property in 2008. Also named as defendants are Bank of America, Countrywide Home Loans, IndyMac Federal Bank, TCF National Bank and "Unknown Defendants."

Washington says that since he was not properly served, the bank's foreclosure and subsequent sale of his property was illegal.

"Simply stated, even though any change to the Illinois Code of Civil Procedure - which governs the procedure for serving process in all foreclosure actions - could only be effected by action of the Illinois Legislature, the defendants convinced the presiding judge to issue an administrative order which changed the service procedure solely for Cook County foreclosure cases," the complaint states.

"This improper change occurred on June 22, 2007. Accordingly: (a) every foreclosure borrower who was purportedly served with process through that improperly changed procedure (such as plaintiff), and who thereafter did not consent to the Circuit Court's jurisdiction, was not properly served and should not have been subjected to any court orders at all, including but not limited to, the judicial sale of their property, (b) the court orders entered following improper service are void, and (c) every lienholder who benefited from such court-imposed relief following improper service has been unjustly enriched."

Washington wants the court to "order defendants to cause plaintiff and the class to be deeded their properties back."

The class is represented by Edward Joyce.

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