Saturday, October 20, 2012

FYI: Ill App Ct Allows Amended Affidavit of Service on Borrower to Cure Alleged Defect in First Affidavit

The Illinois Appellate Court, First District, recently held in a mortgage foreclosure action that an amended affidavit of service, specifying the employment relationship between a special process server and the detective agency that hired him, cured any alleged defect in the original return of service, which failed to expressly indicate whether the special process server had been appointed to serve process or worked for a detective agency appointed to serve process on behalf of the owner of the loan. 
 
 
Plaintiff, the trustee of a pool of securitized mortgages ("Loan Owner"), filed a foreclosure action against defendant Borrower on property in Chicago, Illinois, and used a special process server to personally serve Borrower.  After personally serving Borrower, the special process server submitted a signed affidavit of service, indicating his name, along with the name, license number, and contact information of the private detective agency appointed to serve process for the Loan Owner.  The affidavit did not expressly state the relationship between the special process server and the detective agency. 
 
Borrower failed to answer or otherwise appear in the foreclosure proceedings.  As a result, a default judgment of foreclosure and sale was eventually entered in favor of Loan Owner.  Loan Owner later purchased the property at the foreclosure sale.
 
Shortly after the sale, Borrower moved to quash personal service, asserting that service was improper, because there was no evidence that the special process server was ever appointed to serve process or was an employee or agent of one of the private detective agencies appointed to serve process for Loan Owner.  In response, Loan Owner provided an amended affidavit of service by the special process server averring that he worked for the licensed detective agency that had been appointed by the court to serve process for Loan Owner.
 
Based on the special process server's amended affidavit and Borrower's failure to submit a counteraffidavit, the lower court denied Borrower's motion to quash personal service.  The Court also confirmed the sale of the property to Loan Owner. 
 
Borrower appealed, contending that service on him should have been quashed due to insufficient proof that the special process server was authorized to serve process in this case. 
 
Noting that Borrower provided no support for his argument that failure to mention the process server's employment status in the return of process invalidated service, the Appellate Court pointed out that the special process server's amended affidavit of service clarified his employment status with the detective agency and that the detective agency was one of the detective agencies appointed to serve process for the Loan Owner. 
 
The Appellate Court thus ruled that the lower court properly relied on the amended affidavit to cure any purported defect in the return of process, and affirmed the judgment for foreclosure and sale. 


Ralph T. Wutscher
McGinnis Wutscher LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct: (312) 551-9320
Fax: (312) 284-4751
Mobile: (312) 493-0874
Email:
RWutscher@mtwllp.com
 

NOTICE: We do not send unsolicited emails. If you received this email in error, or if you wish to be removed from our update distribution list, please simply reply to this email and state your intention. Thank you.


Our updates are available on the internet, in searchable format, at:
http://updates.kw-llp.com