[Helen Gunnarsson prepared the following report for the forthcoming (August) issue Illinois Bar Journal.] Upholding the reasoning of the circuit court of Cook County, foreclosure proceedings under the Illinois Mortgage Foreclosure Law (735 ILCS 5/15-1101 et seq) are not in rem, but quasi in rem actions, the Illinois Supreme Court held last June in ABN AMRO Mortgage Group, Inc. et al., v McGahan. Therefore, where a mortgagor has died, the mortgagee/lender must name (and thus notify) a personal representative of the mortgagor/borrower’s estate for the circuit court to acquire subject matter jurisdiction. The trial and appellate court rulings Before the court were two matters, ABN AMRO v McGahan and Charter One Bank v Hunter, consolidated at the appellate court level. In both cases, the mortgages went into default after the deaths of the mortgagor/borrowers. Ignorant of the reason for the defaults, the mortgagee/lenders then filed complaints for foreclosure against dead people. At around the same time that the complaints in these cases were pending, the same circuit court was considering still another matter, Wells Fargo v McQueen, No 05-CH-12846 (November 2, 2006), in which the mortgagor had also died before the filing of the mortgage foreclosure complaint. In McQueen, the circuit court issued a detailed decision dismissing the complaint, holding that foreclosure proceedings are quasi in rem proceedings and are not exempt from the general rule that lawsuits against deceased persons are nullities. In reaching its decision, the court found that a mortgagee must name a personal representative for a deceased mortgagor for the court to obtain subject matter jurisdiction. Alternatively, the court said, a mortgagee could proceed under the Probate Act as an “interested person,” as any other creditor might. After the circuit court dismissed the complaint in McQueen, it dismissed those in the McGahan and Hunter matters, citing its decision in McQueen. ABN and Charter One appealed, and the cases were consolidated. Though no one had appeared for the deceased mortgagors or any other appellee, the appellate court granted Chicago Volunteer Legal Services leave to file an amicus brief, arguing in favor of upholding the trial court’s decisions. The appellate court reversed and remanded, finding that the supreme court has consistently labeled foreclosures in rem actions. The supreme court granted CVLS’s motion for leave to file a petition for leave to appeal as amicus and, later, also granted the Cook County public guardian leave to file an amicus brief. Quasi in rem – suing people, not property The high court observed that section 15-1501 of the Mortgage Foreclosure Law, 735 ILCS 5/15-1501, specifies that mortgagors and certain others must be named as defendants in foreclosure proceedings but fails to address what procedure must be followed when the mortgagor has died. Under such circumstances, the court said, courts would normally look to the general rules of civil procedure for guidance. The banks, however, argued that this was unnecessary because foreclosure proceedings are in rem actions and, therefore, neither the deceased mortgagors nor personal representatives for their estates needed to be named. The court then explained the difference between “in rem” and “quasi in rem” actions. “In rem” jurisdiction, the court said, refers to a court’s power to adjudicate the rights to a particular piece of property as to the rest of the world. In rem proceedings are based on the fiction that the property itself, not its owner or owners, is the defendant. Quasi in rem actions, on the other hand, are brought against people, not the subject property. The rights adjudicated in a quasi in rem proceeding affect only the parties to the action, not the rest of the world. The court acknowledged that it had characterized foreclosures inconsistently in its prior decisions, sometimes referring to them as in rem proceedings and at other times as quasi in rem actions with no analysis or explanation of why it had selected either term.  Correcting that omission, the court said that the mortgagor, not the property, is the instrumentality of the wrong and the necessary party defendant in foreclosure proceedings. Additionally, the court continued, both its precedent and the statute show that foreclosure proceedings do not bind the whole world. See 735 ILCS 5/15-1501(a). The court overruled its prior inconsistent statements and held that mortgage foreclosure proceedings are quasi in rem actions, so that a mortgagee must name a personal representative for a deceased mortgagor in a foreclosure proceeding for the circuit court to acquire subject matter jurisdiction. Cheering the result Patricia Nelson of Chicago Volunteer Legal Services cheered the result, saying her agency has seen many family members in trouble under the circumstances presented in McGahan. “Grandma bought a two-flat and various members of the family have always lived there. Then she passes away and the family keeps paying the mortgage. Five years later, somebody loses a job, the property goes into foreclosure, but nobody will talk to the family members about a modification because their names aren’t on the title. They may not even find out about the foreclosure because they’re not personally served.” Praising Ottawa lawyer Michael T. Reagan for shepherding the case through the appeal process, Nelson said she hopes the supreme court’s opinion will help more people hold on to their dwellings.