LVNV Funding, LLC v. Trice
Ill.
Illinois Official Reports
Supreme Court
LVNV Funding, LLC v. Trice, 2015 IL 116129
Caption in Supreme LVNV FUNDING, LLC, Appellee, v. MATTHEW TRICE,
Court: Appellant.
Docket No. 116129
Filed February 27, 2015
Rehearing denied May 26, 2015
Decision Under Appeal from the Circuit Court of Cook County, the Hon. Martin P.
Review Moltz, Judge, presiding.
Judgment Circuit court judgment vacated.
Cause remanded with directions.
Counsel on Clinton A. Krislov, Michael R. Karnuth and Christopher M. Hack, of
Appeal Krislov & Associates, Ltd., and Theodore A. Woerthwein and John
Miller, of Woerthwein & Miller, all of Chicago, for appellant.
Lisa Madigan, Attorney General, of Springfield (Michael A. Scodro
and Carolyn E. Shapiro, Solicitors General, and Clifford W. Berlow,
Assistant Attorney General, of Chicago, of counsel), for intervenor
appellant.
Hinshaw & Culbertson LLP, of Chicago (Stephen R. Swofford, David
M. Schultz and John P. Ryan, of counsel), for appellee.
Justices JUSTICE KARMEIER delivered the judgment of the court, with
opinion.
Chief Justice Garman and Justices Freeman, Thomas, Burke, and
Theis concurred in the judgment and opinion.
Justice Kilbride dissented, with opinion.
OPINION
¶1 This appeal comes to us from the circuit court of Cook County, the court having declared
sections 4.5, 14, and 14b of the Collection Agency Act (Act) (225 ILCS 425/4.5, 14, 14b (West
2008)) unconstitutional. Following remand from an appellate court decision in which that
court held—referencing, inter alia, the Act’s penalty provisions—that “a complaint filed by an
unregistered collection agency is *** a nullity, and any judgment entered on such a complaint
is void” (2011 IL App (1st) 092773, ¶ 19), the circuit court found the aforementioned penalty
provisions of the Act unconstitutional on grounds of due process, equal protection and
vagueness. The circuit court then concluded, though the debt collector in this case was
unlicensed at the time it filed suit to collect a debt, the resulting judgment should have been
“voidable rather than void.” Because the circuit court invalidated Illinois statutes, appeal lies
directly to this court pursuant to Supreme Court Rule 302(a)(1) (Ill. S. Ct. R. 302(a)(1) (eff.
Oct. 4, 2011)). We now vacate the circuit court’s findings of unconstitutionality as
unnecessary, we reject the analysis of the appellate court, and remand this matter for
confirmation of the monetary judgment initially rendered by the circuit court.
¶2 STATUTES INVOLVED
¶3 We refer herein to the version of the Collection Agency Act in effect when LVNV
Funding, LLC (hereafter LVNV) filed its complaint against Matthew Trice in the circuit court.
See 225 ILCS 425/1 et seq. (West 2008).1 At the outset, the legislature set forth a declaration
of public policy that underscores legislators’ concern for the public welfare:
“The practice as a collection agency by any entity in the State of Illinois is hereby
declared to affect the public health, safety and welfare and to be subject to regulation
and control in the public interest. It is further declared to be a matter of public interest
and concern that the collection agency profession merit and receive the confidence of
the public and that only qualified entities be permitted to practice as a collection agency
in the State of Illinois.” 225 ILCS 425/1a (West 2008).
The legislature mandates a liberal construction “to carry out these objects and purposes.” 225
ILCS 425/1a (West 2008).
1
For our purposes, the only changes to the Act worthy of note were introduced by amendments
effective January 1, 2013, defining the term “ ‘[d]ebt buyer’ ” (225 ILCS 425/2 (West 2012)), and
emphasizing that “[a] debt buyer shall be subject to all of the terms, conditions, and requirements of this
Act, except as otherwise provided for in subsection (b) of Section 8.6” (225 ILCS 425/8.5 (West
2012)), one of those exceptions being an exemption from the “assignment for collection criteria under
Section 8b” (225 ILCS 425/8.6(b)(iv) (West 2012)).
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¶4 The Act specifically exempts from its coverage a host of entities, among them, those
traditionally associated with financing and lending, and “[l]icensed attorneys at law.” 225
ILCS 425/2.03(5) (West 2008). It otherwise defines a “legal entity” as “a collection agency,”
subject to the provisions of the Act, when, inter alia, that entity: “[r]eceives, by assignment or
otherwise, accounts, bills, or other indebtedness *** with the purpose of collecting monies due
on such account, bill or other indebtedness” or “[b]uys accounts, bills or other indebtedness
and engages in collecting the same.” 225 ILCS 425/3(b), (d) (West 2008). Section 2 of the Act
broadly defines “ ‘[d]ebt collection’ ” as “any act or practice in connection with the collection
of consumer debts.” 225 ILCS 425/2 (West 2008).
¶5 Section 4 of the Act provides that “[n]o collection agency shall operate in this State,
directly or indirectly engage in the business of collecting,” or “exercise the right to collect ***
without registering under this Act.” 225 ILCS 425/4 (West 2008). In addition to the
prerequisite of licensing, the Act provides that no entity that has obtained an “assignment” of
“title” from the original creditor may commence litigation in its own name unless the
“assignment is manifested by a written agreement” specifically stating the effective date of the
assignment and the consideration paid therefor. 225 ILCS 425/8b(a) (West 2008).
¶6 More to the point for present purposes, section 14a of the Act authorizes the Department of
Financial and Professional Regulation to enjoin the activities of an unlicensed collection
agency, stating that “[t]he practice as a collection agency by any entity not holding a valid and
current license under this Act is declared to be inimical to the public welfare, to constitute a
public nuisance, and to cause irreparable harm to the public welfare.” 225 ILCS 425/14a (West
2008). In addition to a civil penalty for unlicensed practice (see 225 ILCS 425/4.5 (West 2008)
(“a civil penalty *** in an amount not to exceed $5,000 for each offense”)), the Act provides
for criminal penalties as well: “Any entity that practices *** as a collection agency in this State
without being licensed for that purpose *** is guilty of a Class A misdemeanor. Any entity that
has been previously convicted under any of the provisions of this Act and that subsequently
violates any of the provisions of this Act is guilty of a Class 4 felony.” 225 ILCS 425/14b
(West 2008); see also 225 ILCS 425/14 (West 2008) (“Engaging in the collection of debts
without first having obtained a certificate pursuant to this Act *** is a Class A misdemeanor.
The penalties provided by this Act shall not be exclusive, but shall be in addition to all other
penalties or remedies provided by law.”).
¶7 BACKGROUND
¶8 Matthew Trice used a credit card to pay for some plumbing work. He apparently did not
pay the credit card company the full amount due on the card. The credit card company sold its
interest in the unpaid debt to LVNV. Thereafter, LVNV hired an Illinois attorney and filed a
debt collection lawsuit against Trice, who proceeded pro se. On January 15, 2009, the circuit
court entered judgment in the lawsuit in favor of LVNV.
¶9 Trice did not file a direct appeal. Instead, sometime later, Trice, who was then represented
by an attorney, filed a petition under section 2-1401 of the Code of Civil Procedure (735 ILCS
5/2-1401 (West 2008)) seeking to vacate the circuit court’s final judgment. In this petition,
Trice alleged that LVNV was a debt collection agency within the meaning of the Act (225
ILCS 425/3(b), (d) (West 2008)) and that the filing of the lawsuit against him was an act of
debt collection. In addition, Trice alleged that, before LVNV filed the lawsuit, it had not
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registered with the State of Illinois as a debt collection agency as required under the Act.
According to Trice, this failure was a fundamental error which rendered the circuit court’s
judgment of January 15, 2009, “void.”
¶ 10 The circuit court denied Trice’s section 2-1401 petition without an evidentiary hearing.
The circuit court concluded that, even assuming LVNV had erroneously failed to register as a
debt collection agency, the error did not render the judgment entered against Trice void. Trice
appealed.
¶ 11 The appellate court reversed the circuit court’s denial of Trice’s section 2-1401 petition.
2011 IL App (1st) 092773, ¶ 25. The appellate court first observed that a party seeking relief
from a final judgment under section 2-1401 ordinarily must plead and prove, among other
things, that he had a defense or claim that would have precluded entry of judgment in the
original action, and “that he acted with ‘diligence in both discovering the defense or claim and
presenting the petition.’ ” Id. ¶ 8 (quoting People v. Vincent,226 Ill. 2d 1
, 7-8 (2007)).
However, when a section 2-1401 petitioner alleges that the challenged judgment is void, the
allegation “ ‘substitutes for and negates the need to allege a meritorious defense and due
diligence.’ ” Id. ¶ 11 (quoting Sarkissian v. Chicago Board of Education,201 Ill. 2d 95
, 104
(2002)). The appellate court noted that, in this case, Trice’s section 2-1401 petition contained
no allegations regarding his diligence in discovering that LVNV was unlicensed. Instead,
Trice’s petition alleged only that the circuit court’s judgment was void.
¶ 12 Quoting from this court’s decision in Ford Motor Credit Co. v. Sperry, 214 Ill. 2d 371,
379-80 (2005), the appellate court offered the following definition of a void judgment:
“ ‘A void order or judgment is, generally, one entered by a court without
jurisdiction of the subject matter or the parties, or by a court that lacks the inherent
power to make or enter the order involved. [Citations.] A void judgment is from its
inception a complete nullity and without legal effect.’ ” 2011 IL App (1st) 092773,
¶ 13.
Thereafter, the appellate court addressed, at some length, the “nullity rule,” which this court
discussed in Ford Motor, and has applied, in some instances, to “nullify” the filing of a
complaint, and “void” the resulting judgment, where a person or entity unauthorized to
practice law has filed suit on behalf of a corporation. Id. ¶¶ 13-18.
¶ 13 In Ford Motor—a case, like this one, involving a petition for relief under section 2-1401 of
the Code of Civil Procedure (see Ford Motor, 214 Ill. 2d at 378-79)—this court referenced its
“inherent power to define and regulate the practice of law in this state” (Ford Motor, 214 Ill. 2d
at 382) in the course of a discussion that ended with the reaffirmation that “the nullity—or
voidness—rule” “remains valid law” but a finding that “its application to the facts in the instant
cause by the appellate court is misplaced.” Ford Motor, 214 Ill. 2d at 389. That finding was
premised, not on untimely action on the part of petitioner, but rather, to a significant degree, on
this court’s observation that the Supreme Court Rule that was violated (Ill. S. Ct. R. 721 (eff.
Mar. 1, 1997)) “was not enacted to safeguard the public welfare” (Ford Motor, 214 Ill. 2d at
388) as evinced by, inter alia, its lack of “civil or criminal penalties for noncompliance.” Ford
Motor, 214 Ill. 2d at 386.
¶ 14 Based upon its reading of Ford Motor, and this court’s discussion of the nullity rule, the
appellate court herein found “this case similar to cases in which a person practices law without
a license” and concluded “[c]ourts may similarly penalize anyone who acts as a collection
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agency without registering.” 2011 IL App (1st) 092773, ¶ 18 (citing 225 ILCS 425/4.5, 14, 14b
(West 2008)). The appellate court found “[t]he criminal and civil penalties the Act assigns to
LVNV’s alleged acts [citation] distinguish this case from Ford Motor.” Id. ¶ 16. The appellate
court concluded that, if LVNV was unlicensed when it filed the lawsuit, permitting the circuit
court’s January 15, 2009, judgment to stand would be tantamount to abetting LVNV in the
commission of a crime. Id. ¶ 19. The appellate court held that the circuit court “lacks authority
to enter or enforce a judgment in LVNV’s favor on a complaint LVNV filed in violation of the
Act.” Id. In effect, any judgment entered in the lawsuit would be void.
¶ 15 The appellate court remanded the matter to the circuit court for an evidentiary hearing to
determine whether, as Trice had alleged in his section 2-1401 petition, LVNV was unlicensed
at the time its lawsuit was filed. The appellate court also noted, however, that it was not
foreclosing LVNV from raising any constitutional challenges to the Act during the remand
hearing.
¶ 16 This court denied LVNV’s petition for leave to appeal from the judgment of the appellate
court. LVNV Funding, LLC v. Trice, No. 112834 (Ill. Nov. 30, 2011).
¶ 17 On remand, the circuit court acknowledged the binding effect of the appellate court’s
holding, “that a complaint filed by an unregistered collection agency is *** a nullity, and any
judgment entered on such a complaint is void” (2011 IL App (1st) 092773, ¶ 19), but
ruled—apparently based on the appellate court’s addendum upon denial of petition for
rehearing (seemingly tying a void judgment to criminal liability alone) (see id. ¶ 24)—that the
penalty provisions of sections 4.5, 14, and 14b of the Act (225 ILCS 425/4.5, 14, 14(b) (West
2008)) were unconstitutional on grounds of substantive due process, equal protection, and
vagueness. The circuit court believed its ruling would effectively nullify the appellate court’s
judgment. Accordingly, the circuit court concluded, with respect to the order now before this
court, that “the judgment originally obtained by LVNV Funding must stand.” Section 4 of the
Act (225 ILCS 425/4 (West 2008) (the actual provision requiring licensing)) was not named
among those statutory sections found unconstitutional.
¶ 18 In passing, we note that the circuit court rejected other arguments raised by
LVNV—constitutional and nonconstitutional—including, inter alia, its contentions (1) that
the circuit court could ignore the appellate court’s judgment and dispense with the “Law of the
Case Doctrine”; (2) that the Act’s licensing requirement obstructed LVNV’s fundamental right
of access to the courts; and (3) that enforcing the licensing requirement on LVNV, and not its
attorneys, violated equal protection guarantees. The court found that compliance with the
Act’s licensing requirement as a condition of doing business in Illinois “is not unreasonable
because it allows the State to determine if the entity is qualified and capable to lawfully
conduct business in Illinois, allows easy monitoring of and enforcement actions to be taken
against the entity if necessary, and establishes certain minimum financial requirements to
allow recovery if warranted.”
¶ 19 Because the circuit court declared portions of the Act unconstitutional, direct appeal was
taken to this court under Supreme Court Rule 302(a)(1) (Ill. S. Ct. R. 302(a)(1) (eff. Oct. 4,
2011)).
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¶ 20 ANALYSIS
¶ 21 In this court, LVNV maintains that the circuit court correctly held that the legislature
violated the constitution when it made the failure to register as a debt collector a criminal act.
However, LVNV also raises two nonconstitutional arguments which, if successful, would be
sufficient to sustain the circuit court’s “original judgment,” which is what the circuit court
order before us—in addition to holding three statutory provisions unconstitutional and, in
essence, negating the judgment of the appellate court—purported to do. We will address these
issues first. See, e.g., Mulay v. Mulay, 225 Ill. 2d 601, 607 (2007) (as a general principle, courts
address nonconstitutional issues first); Bohnert v. Ben Hur Life Ass’n, 362 Ill. 403, 408 (1936).
¶ 22 LVNV initially contends that the Act, as it existed at the time the debt collection lawsuit
was filed herein, did not apply to entities such as LVNV which hire other people to collect the
debt it owns. We reject that argument.
¶ 23 As noted at the outset, the Act defines a “legal entity” as “a collection agency,” subject to
the provisions of the Act, when, inter alia, that entity: “[r]eceives, by assignment or otherwise,
accounts, bills, or other indebtedness *** with the purpose of collecting monies due on such
account, bill or other indebtedness” or “[b]uys accounts, bills or other indebtedness and
engages in collecting the same.” 225 ILCS 425/3(b), (d) (West 2008). Section 2 of the Act
broadly defines “ ‘[d]ebt collection’ ” as “any act or practice in connection with the collection
of consumer debts.” 225 ILCS 425/2 (West 2008). The Act specifically addresses litigation,
mandating, in addition to licensing, contemporaneous filing requirements for the
commencement of suit, i.e., documentation of the effective date of the assignment and the
consideration paid therefor, where an entity has obtained an “assignment” of “title” from the
original creditor. 225 ILCS 425/8b (West 2008). Black’s Law Dictionary defines an
“assignment for value” as an “assignment given in exchange for consideration.” Black’s Law
Dictionary 136 (9th ed. 2009).
¶ 24 That, it appears, is the means by which LVNV obtained the right to collect the debt owed
by Trice. LVNV identified itself as “assignee of Citibank” in the affidavit accompanying its
complaint. However, whether LVNV is a debt buyer as described in subsection (d) of section 3
of the Act (225 ILCS 425/3(d) (West 2008)) or an “assignee” for value within the purview of
subsection (b) (225 ILCS 425/3(b) (West 2008)) is of no moment: in either case it clearly
qualifies as a “collection agency” as defined in section 3 of the Act and is thus subject to the
registration requirement of section 4 (225 ILCS 425/4 (West 2008)). Whether LVNV is
deemed a “ ‘[d]ebt buyer,’ ” or an “assignee of Citibank,” as it represented upon the filing of its
complaint in this case, may have some significance for purposes of the documentation
requirement of sections 8b(a)(i)(v) and 8b(a)(ii) going forward, as “ ‘debt buyers’ ” are now
exempt from that requirement—for reasons not entirely clear—under the Act as amended (see
225 ILCS 425/8.6(b)(iv) (West 2012)); however, the provisions of the Act clearly apply to
entities such as LVNV.
¶ 25 Nor are we persuaded by LVNV’s contention that the hiring of an attorney somehow
insulates it from the applicability of the Act’s provisions, specifically, that the registration
requirements and the Act’s associated criminal sanctions for noncompliance should not apply
to it because the “mere filing of a lawsuit without a license can scarcely be characterized as
abusive” where a “licensed Illinois attorney handled all of the correspondence and interaction
with *** the debtor.” The suggestion that the “mere filing of a lawsuit” cannot be abusive is
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either naive or disingenuous. See, e.g., Wright Development Group, LLC v. Walsh, 238 Ill. 2d
620 (2010) (discussing “SLAPP” lawsuits aimed at preventing citizens from exercising their
political rights or punishing those who have done so). The argument that the public is protected
from the abuses of unscrupulous debt buyers by their utilization of attorneys is equally
meritless. It is, after all, the debt buyers who supply the evidence and witnesses to attorneys in
the myriad complaints they file. We reject LVNV’s argument that debt buyers’ lawsuits—with
or without the involvement of counsel—pose no danger to the public welfare and are thus not
subject to the restrictions and penalties the legislature has seen fit to impose.
¶ 26 In a second argument, LVNV contends that, even assuming the legislature may make the
failure to obtain a debt collection license a criminal offense, the appellate court erred when it
concluded that LVNV’s failure to obtain such a license would render the circuit court’s
January 15, 2009, judgment void. Therefore, according to LVNV, the circuit court properly
denied Trice’s section 2-1401 petition when that petition was first presented. We agree.
¶ 27 As this court has held, whether a judgment is void or voidable presents a question of
jurisdiction. In re Marriage of Mitchell, 181 Ill. 2d 169, 174 (1998). “If jurisdiction is lacking,
any subsequent judgment of the court is rendered void and may be attacked collaterally.” Id. A
voidable judgment, on the other hand, is an erroneous judgment entered by a court that
possesses jurisdiction. Id.
¶ 28 In holding that the circuit court’s January 15, 2009, judgment would be void if LVNV
lacked a debt collection license, the appellate court in this case appeared to rely on the
definition of jurisdiction as the “ ‘inherent power’ ” to enter the judgment involved. 2011 IL
App (1st) 092773, ¶ 13 (quoting Ford Motor, 214 Ill. 2d at 379-80). Applying that definition
here, the appellate court reasoned that, if a debt collection agency does not have the appropriate
license, then the circuit court lacks the inherent power or “authority” to entertain a debt
collection lawsuit by that agency. Id. ¶ 19. Any judgment entered by the circuit court in the
lawsuit would therefore be void for lack of jurisdiction and could be attacked in a collateral
proceeding on that basis.
¶ 29 The problem with this reasoning is that the concept of “inherent power” relied upon by the
appellate court was rejected by this court in Steinbrecher v. Steinbrecher, 197 Ill. 2d 514
(2001). A lack of “inherent power” refers to the idea that if a certain statutory requirement or
prerequisite—such as obtaining a debt collection license—is not satisfied, then the circuit
court loses “power” or jurisdiction to consider the cause of action at issue. In other words, the
circuit court’s jurisdiction depends on whether the court properly follows certain statutory
requirements. Steinbrecher concluded that this idea of jurisdiction is at odds with the grant of
jurisdiction given to the circuit courts under our state constitution.
¶ 30 Steinbrecher noted that a 1964 constitutional amendment significantly altered the basis of
circuit court jurisdiction, granting circuit courts “original jurisdiction of all justiciable matters,
and such powers of review of administrative action as may be provided by law.” Ill. Const.
1870, art. VI (amended 1964), § 9. The current Illinois Constitution, adopted in 1970, retained
this amendment and provides that “Circuit Courts shall have original jurisdiction of all
justiciable matters” and that “Circuit Courts shall have such power to review administrative
action as provided by law.” Ill. Const. 1970, art. VI, § 9. Steinbrecher reasoned that, because
circuit court jurisdiction is granted by the constitution, it cannot be the case that the failure to
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satisfy a certain statutory requirement or prerequisite can deprive the circuit court of its
“power” or jurisdiction to hear a cause of action. Steinbrecher, 197 Ill. 2d at 529-32.
¶ 31 In so holding, Steinbrecher emphasized the difference between an administrative agency
and a circuit court. An administrative agency, Steinbrecher observed, is a purely statutory
creature and is powerless to act unless statutory authority exists. Id. at 530 (citing City of
Chicago v. Fair Employment Practices Comm’n, 65 Ill. 2d 108, 112 (1976)). A circuit court,
on the other hand, “is a court of general jurisdiction, which need not look to the statute for its
jurisdictional authority.” Id. Thus, Steinbrecher concluded that the “ ‘inherent power’
requirement applies to courts of limited jurisdiction and administrative agencies” but not to
circuit courts. Id.
¶ 32 As Steinbrecher makes clear, following the 1964 constitutional amendment and the
adoption of the 1970 Constitution, whether a judgment is void in a civil lawsuit that does not
involve an administrative tribunal or administrative review depends solely on whether the
circuit court which entered the challenged judgment possessed jurisdiction over the parties and
the subject matter. “Inherent power” as a separate or third type of jurisdiction applies only to
courts of limited jurisdiction or in administrative matters. It has no place in civil actions in the
circuit courts, since these courts are granted general jurisdictional authority by the
constitution.2
¶ 33 Steinbrecher was reaffirmed in Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc.,
199 Ill. 2d 325, 335-37 (2002). In Belleville Toyota, this court addressed the meaning of
subject matter jurisdiction, specifically, whether the failure to comply with a statutory
requirement or prerequisite can deprive a circuit court of subject matter jurisdiction. Id. at
337-38. See, e.g., Restatement (Second) of Judgments § 11 cmt. e (1982) (discussing the
tendency in procedural law to treat various kinds of serious procedural errors as defects in
subject matter jurisdiction).
¶ 34 As in Steinbrecher, Belleville Toyota began its analysis by noting the 1964 constitutional
amendment and its incorporation into the 1970 Constitution. Belleville Toyota concluded that
these constitutional amendments “radically changed the legislature’s role in determining the
jurisdiction of the circuit court.” Belleville Toyota, 199 Ill. 2d at 337. And again, as in
Steinbrecher, Belleville Toyota reasoned that a statutory requirement or prerequisite cannot be
jurisdictional, since jurisdiction is conferred on the circuit courts by our state constitution. As
Belleville Toyota noted, while it might have been appropriate prior to 1964 to state that the
failure to conform to certain “statutory requirements prevented the court from acquiring
subject matter jurisdiction,” today that proposition “is confined to the area of administrative
review—the only area in which the legislature still determines the extent of the circuit court’s
jurisdiction.” Id. at 338.
¶ 35 Belleville Toyota thus held that “[w]ith the exception of the circuit court’s power to review
administrative actions, which is conferred by statute, a circuit court’s subject matter
jurisdiction is conferred entirely by our state constitution.” Id. at 334. Subject matter
jurisdiction “refers to the power of a court to hear and determine cases of the general class to
2
Steinbrecher limited its holding regarding jurisdiction to civil cases, noting that “[c]riminal
proceedings that involve the power to render judgments or sentences address a separate set of concerns
not at issue in the present matter.” Steinbrecher, 197 Ill. 2d at 532.
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which the proceeding in question belongs” (id.), and this jurisdiction extends to all
“ ‘justiciable matters’ ” (id. (quoting Ill. Const. 1970, art. VI, § 9)). To invoke the circuit
court’s subject matter jurisdiction, a party need only present a justiciable matter, i.e., “a
controversy appropriate for review by the court, in that it is definite and concrete, as opposed to
hypothetical or moot, touching upon the legal relations of parties having adverse legal
interests.” Id. at 335.
¶ 36 In defining the meaning of subject matter jurisdiction, Belleville Toyota also rejected the
idea of nonwaivable “conditions precedent” to the exercise of circuit court jurisdiction. The
court explained:
“Some case law, however, suggests that the legislature, in defining a justiciable
matter, may impose ‘conditions precedent’ to the court’s exercise of jurisdiction that
cannot be waived. [Citations.] We necessarily reject this view because it is contrary to
article VI [of the Illinois Constitution of 1970]. Characterizing the requirements of a
statutory cause of action as nonwaivable conditions precedent to a court’s exercise of
jurisdiction is merely another way of saying that the circuit court may only exercise
that jurisdiction which the legislature allows. We reiterate, however, that the
jurisdiction of the circuit court is conferred by the constitution, not the legislature. Only
in the area of administrative review is the court’s power to adjudicate controlled by the
legislature.” Id. at 335-36.
¶ 37 Accordingly, while the legislature can create new justiciable matters by enacting
legislation that creates rights and duties, the failure to comply with a statutory requirement or
prerequisite does not negate the circuit court’s subject matter jurisdiction or constitute a
nonwaivable condition precedent to the circuit court’s jurisdiction. Id. See also, e.g., In re Luis
R., 239 Ill. 2d 295, 300-02 (2010); People ex rel. Graf v. Village of Lake Bluff,206 Ill. 2d 541
,
552-54 (2003).
¶ 38 While its holding regarding the circuit courts’ jurisdiction rested on a constitutional basis,
Belleville Toyota also stressed that it was consistent with the policy of preserving the finality of
judgments. Under Illinois law, a party may challenge a judgment as being void at any time,
either directly or collaterally, and the challenge is not subject to forfeiture or other procedural
restraints. See, e.g., Sarkissian, 201 Ill. 2d at 104 (an allegation of voidness substitutes and
negates the need to allege a meritorious defense and due diligence under section 2-1401). Void
judgments thus occupy a unique place in our legal system: to say that a judgment is void or, in
other words, that it was entered without jurisdiction, is to say that the judgment may be
challenged in perpetuity. For this reason, as Belleville Toyota observed, “[l]abeling the
requirements contained in statutory causes of action ‘jurisdictional’ would permit an
unwarranted and dangerous expansion of the situations where a final judgment may be set
aside on a collateral attack.” Belleville Toyota, 199 Ill. 2d at 341. Accordingly, only the most
fundamental defects, i.e., a lack of personal jurisdiction or lack of subject matter jurisdiction as
defined in Belleville Toyota warrant declaring a judgment void.
¶ 39 Applying the holdings of Steinbrecher and Belleville Toyota to this case, it is clear that the
circuit court’s January 15, 2009, judgment is not void. A void judgment is one entered by a
court without jurisdiction. In a civil lawsuit that does not involve an administrative tribunal or
administrative review, jurisdiction consists solely of subject matter or personal jurisdiction.
Subject matter jurisdiction is defined solely as the power of a court to hear and determine cases
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of the general class to which the proceeding in question belongs. There is no third type of
jurisdiction known as the “inherent power” to render a judgment.
¶ 40 In this case, the circuit court possessed jurisdiction over both the parties and the subject
matter when LVNV filed its debt collection lawsuit. To be sure, LVNV’s failure to register as
a debt collection agency was error. And that error, if raised in a timely fashion, might have
warranted dismissal of LVNV’s lawsuit by the circuit court, merited reversal on direct appeal,
or justified setting aside the final judgment under section 2-1401 if the requirements of that
provision, such as due diligence, were established. But any error in failing to register did not
deprive the circuit court of jurisdiction. Therefore, the circuit court’s judgment is not void.
Accordingly, the appellate court erred in reversing the circuit court’s initial denial of Trice’s
section 2-1401 petition.
¶ 41 As noted previously, in reaching the opposite conclusion, the appellate court in this case
appeared to rely on the definition of jurisdiction as the “inherent power” to enter a judgment.
That reliance was understandable, since the definition was set forth by this court in Ford Motor
Credit Co. v. Sperry, 214 Ill. 2d 371, 379-80 (2005), a unanimous opinion decided after both
Steinbrecher and Belleville Toyota. Unfortunately, Ford Motor’s definition of jurisdiction was
overly broad. Ford Motor did not acknowledge our previous decision in Steinbrecher or
explain how its statement that a circuit court’s jurisdiction is defined, in part, as the “inherent
power” to enter a judgment could be reconciled with the reasoning of Steinbrecher and
Belleville Toyota.
¶ 42 Ford Motor’s primary holding was that a law firm which fails to register under Supreme
Court Rule 721(c) is not engaged in the unauthorized practice of law. Ford Motor, 214 Ill. 2d at
387. That aspect of Ford Motor should remain standing. However, we hereby reject that
portion of Ford Motor which defines a void judgment in a civil lawsuit, in part, as one entered
by a circuit court which lacks “inherent power.”
¶ 43 Both LVNV and Trice contend that the outcome of this case is controlled by Downtown
Disposal Services, Inc. v. City of Chicago, 2012 IL 112040. In Downtown Disposal,
complaints for administrative review were filed in the circuit court of Cook County on behalf
of a corporation by one of the corporation’s officers. The officer was not an attorney. The
defendant filed a motion to dismiss, arguing that the filing of the complaints by a nonattorney
constituted the unauthorized practice of law and that this error required dismissal of the
complaints. The circuit court agreed. The appellate court reversed that determination and
appeal was taken to this court.
¶ 44 This court concluded that the act of filing the complaints constituted the unauthorized
practice of law. Id. ¶ 19. Having determined that error occurred, the court then addressed the
effect the unauthorized practice of law had on the complaints. This court noted that some cases
had held that the unauthorized practice of law is an “incurable” defect that deprives the circuit
court of subject matter jurisdiction, thus rendering any action taken in the case, including the
filing of a complaint, void. Id. ¶ 22. The court rejected this conclusion. This court determined
that the unauthorized practice of law did not affect the subject matter jurisdiction of the circuit
court and, thus, the complaints were not void. Id. ¶ 29.
¶ 45 However, this conclusion did not end the inquiry. The defendant in Downtown Disposal
had raised the allegation of unauthorized practice of law in a timely fashion in the circuit court
and the error was properly preserved on direct appeal in this court. Thus, although the
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unauthorized practice of law did not deprive the circuit court of jurisdiction, there was still a
question of whether the error merited dismissal of the complaints.
¶ 46 The defendant maintained that the unauthorized practice of law rendered the complaints a
“nullity,” meaning that the complaints should be automatically dismissed, or dismissed per se,
with no consideration of the particular circumstances of the case. This court rejected that view
and held there was no “automatic nullity rule.” Id. ¶ 31. Instead, the court concluded that, in
determining whether dismissal of a complaint filed by a nonattorney is required, the circuit
court should consider, inter alia, whether the nonattorney’s conduct was done without
knowledge that the action was improper, whether the corporation acted diligently in correcting
the mistake by obtaining counsel, whether the nonattorney’s participation was minimal, and
whether the participation resulted in prejudice to the opposing party. Id. Applying these
factors, this court concluded that dismissal of the complaints in Downtown Disposal was not
warranted.
¶ 47 In this case, the parties both point to the various factors which were used in Downtown
Disposal to determine whether the complaints should be dismissed, to contend that the circuit
court’s judgment of January 15, 2009, is either void or voidable. The parties’ reliance on the
Downtown Disposal factors is misplaced.
¶ 48 The question before us in this case is whether the circuit court properly denied Trice’s
section 2-1401 petition seeking to vacate the circuit court’s January 15, 2009, judgment. The
only allegation raised in Trice’s petition is that the circuit court’s judgment is void. As we held
in Steinbrecher, whether a judgment in a civil lawsuit that does not involve administrative law
is void rests solely on whether the circuit court which entered the challenged judgment
possessed jurisdiction over the parties and the subject matter. Steinbrecher, 197 Ill. 2d at
530-31. If the circuit court “had both subject matter jurisdiction and personal jurisdiction over
the parties [then] the judgment is not ‘void.’ ” Id. at 531. The factors discussed in Downtown
Disposal to determine whether to dismiss the complaints in that case have no bearing on this
issue. Only the absence of jurisdiction renders a circuit court’s judgment void. Steinbrecher,
197 Ill. 2d at 530-31.
¶ 49 As we have held that the circuit court’s January 15, 2009, judgment is not void, it is
unnecessary to address the constitutional issues in this case. The circuit court only reached the
constitutional questions because the appellate court held that LVNV’s failure to register as a
debt collection agency would render the January 15, 2009, judgment void. However, we have
now found that determination to be erroneous, holding that even if the legislature may make
the lack of a debt collection license a criminal offense, the circuit court’s January 15, 2009,
judgment is not void.
¶ 50 CONCLUSION
¶ 51 This case has therefore been returned to square one. The circuit court’s initial denial of
Trice’s section 2-1401 petition was correct, LVNV has been granted relief on a
nonconstitutional ground, and there was no need for the circuit court to address the
constitutionality of the Collection Agency Act. Under these circumstances, the appropriate
disposition is to vacate the circuit court’s findings of unconstitutionality as unnecessary. See,
e.g., Mulay v. Mulay, 225 Ill. 2d 601 (2007).
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¶ 52 Thus, in the exercise of our supervisory authority, we vacate the judgment of the circuit
court as to the constitutionality of the statutes in question, reject the analysis of the appellate
court, and remand this matter for confirmation of the monetary judgment in favor of LVNV.
¶ 53 Circuit court judgment vacated.
¶ 54 Cause remanded with directions.
¶ 55 JUSTICE KILBRIDE, dissenting:
¶ 56 I dissent from the majority opinion because I cannot agree with this court adopting an
approach that does not address the constitutionality of sections 4.5, 14, and 14b of the
Collection Agency Act (225 ILCS 425/4.5, 14, 14b (West 2008)).
¶ 57 I do not believe this court should avoid reviewing a direct finding that sections 4.5, 14, and
14b of the Act are unconstitutional. This appeal comes to us from the circuit court of Cook
County, the court having declared sections 4.5, 14, and 14b of the Act unconstitutional, both
facially and as applied in this case. The circuit court indicated that, pursuant to Supreme Court
Rule 18 (Ill. S. Ct. R. 18 (eff. Sept. 1, 2006)), its finding of unconstitutionality was necessary
because the appellate court already rejected its alternative grounds (see 2011 IL App (1st)
092773). This court denied LVNV’s petition for leave to appeal from that decision. LVNV
Funding, LLC v. Trice, No. 112834 (Ill. Nov. 30, 2011). Because the circuit court invalidated
Illinois statutes, appeal lies directly to this court pursuant to Supreme Court Rule 302(a)(1) (Ill.
S. Ct. R. 302(a)(1) (eff. Oct. 4, 2011)). The validity of sections 4.5, 14, and 14b of the Act is,
thus, the only subject of this appeal.
¶ 58 The majority, unfortunately, focuses its analysis on LVNV’s alternative argument that
collaterally challenges the appellate court’s prior 2011 decision (2011 IL App (1st) 092773).
This court denied LVNV’s petition for leave to appeal from the appellate court’s 2011 decision
before deciding Downtown Disposal Services, Inc. v. City of Chicago, 2012 IL 112040.
Obviously, LVNV could not have resurrected this issue collaterally by cross-appeal in this
current direct appeal. By addressing LVNV’s alternative argument, the majority allows LVNV
to bootstrap and challenge the issue in this appeal, effectively giving LVNV “a second bite at
the apple” when it already litigated this issue to a final resolution. Therefore, I believe this
court should not skirt review of the constitutional issue raised in this direct appeal.
¶ 59 In my view, it is error to uphold a judgment that was not obtained in compliance with the
Act. Thus, even if the constitutionality of sections 4.5, 14, and 14b of the Act were not at issue
in this appeal, I would still reverse the circuit court’s judgment. This appeal comes before the
court on the circuit court’s denial of defendant’s motion to vacate the underlying judgment in
favor of LVNV, pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS
5/2-1401 (West 2008)). Section 2-1401 invokes the equitable power of the court to set aside a
judgment. “One of the guiding principles *** in the administration of section 2-1401 relief is
that the petition invokes the equitable powers of the circuit court ***.” Smith v. Airoom, Inc.,
114 Ill. 2d 209, 225 (1986). The equitable power of the court to set aside a judgment “ ‘is based
upon substantial principles of right and wrong and is to be exercised for the prevention of
injury and [for the] furtherance of justice.’ ” Airoom, 114 Ill. 2d at 225 (quoting Diner’s Club,
Inc. v. Gronwald, 43 Ill. App. 3d 164, 168 (1976), and Spencer v. American United Cab Ass’n,
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59 Ill. App. 2d 165, 172 (1965)); see also People v. Lawton,212 Ill. 2d 285
, 298 (2004)
(“Relief should be granted under section 2-1401 when necessary to achieve justice.”).
¶ 60 Illinois courts have consistently held that where licensing requirements are enacted to
safeguard the public, the unlicensed party may not recover fees for services or otherwise
enforce a contract.
“It is well settled that ‘courts will not aid a plaintiff who bases his cause of action
on an illegal act.’ King v. First Capital Financial Services Corp., 215 Ill. 2d 1, 35
(2005). More specifically, ‘courts will not enforce a contract involving a party who
does not have a license called for by legislation that expressly prohibits the carrying on
of the particular activity without a license where the legislation was enacted for the
protection of the public, not as a revenue measure.’ ” Chatham Foot Specialists, P.C. v.
Health Care Service Corp., 216 Ill. 2d 366, 380-81 (2005) (quoting Ransburg v. Haase,
224 Ill. App. 3d 681, 684-85 (1992)).
¶ 61 There can be no doubt that the Collection Agency Act was enacted to protect the public and
not to generate revenue, as clearly stated in the purpose of the Act. Section 1a provides:
Ҥ 1a. Declaration of public policy. The practice as a collection agency by any
entity in the State of Illinois is hereby declared to affect the public health, safety and
welfare and to be subject to regulation and control in the public interest. It is further
declared to be a matter of public interest and concern that the collection agency
profession merit and receive the confidence of the public and that only qualified
entities be permitted to practice as a collection agency in the State of Illinois. This Act
shall be liberally construed to carry out these objects and purposes.
It is further declared to be the public policy of this State to protect consumers
against debt collection abuse.” 225 ILCS 425/1a (West 2008).
¶ 62 Here, LVNV engaged in debt collection practices without being lawfully licensed in the
State of Illinois when it pursued collection against Trice and filed suit. This court should not
assist LVNV in the enforcement of a judgment based on a lawsuit that violated the law at the
time it was instituted.
¶ 63 For these reasons, I respectfully dissent.
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