Thursday, November 8, 2012

FYI: Ill App Ct Confirms Denial of Borrower's Service of Process Challenge as to "Substitute" or "Abode" Service in Foreclosure Action

The Illinois Appellate Court, First District, recently ruled in a mortgage foreclosure action that substitute service on a family member who did not reside at defendants' residence was proper under the Illinois Code of Civil Procedure's substitute service provision, which allows substitute service on either "some person of the family or a person residing" in the household.   The Court also confirmed that, although substitute service requires strict compliance with the statute, a process server's return of service can only be set aside by clear and satisfactory evidence of noncompliance.
A couple (collectively "Borrowers") defaulted on their home mortgage loan.  Plaintiff mortgage company ("Mortgage Company") filed a foreclosure complaint against Borrowers to foreclose on the mortgage and hired a special process server to serve both Borrowers in the action.   The special process server served each of the Borrowers by substitute service by leaving copies of the summons and complaint at their residence with the mother (the "Mother") of one of the Borrowers.   The special process server submitted two sworn affidavits indicating the method of service, and attesting that he also mailed copies of the process to each of the Borrowers at their home address.
Several months later, the lower court entered a default judgment of foreclosure and sale of the property.    After purchasing the property at the judicial sale, Mortgage Company moved for an order confirming the sale and for possession of the property. 
Borrowers later appeared in the case and moved to quash service, arguing that service on them was improper because the Mother was not a member of their household for purposes of Section 2-203(a) of the Illinois Code of Civil Procedure.  Borrowers attached affidavits contending that they were never served, and otherwise confirming their allegations
In response, Mortgage Company argued that Borrowers' affidavits failed to overcome the presumption of validity of the special process server's affidavits, attaching a supplemental affidavit of service stating that the Mother had signed a statement that she was a member of Borrowers' family, resided at the property, and had received copies of the summons and complaint.  The process server also averred that he had mailed "a copy" of the summons and complaint in an envelope addressed to both Borrowers at their address.
Borrowers countered that the Mother was not a member of their household, and that the process server's supplemental affidavit showed that he had improperly mailed the two defendants only a single copy of the summons and complaint.
The lower court denied Borrowers' motion to quash service as well as their subsequent motion for reconsideration, and Mortgage Company filed a second motion for an order approving the sale and possession of the property.  
Borrowers then re-asserted their argument that only one copy of the summons and complaint was served on them.  In response, Mortgage Company submitted an amended supplemental affidavit of service supporting its position that the process server's original affidavits demonstrated that he had in fact mailed separate copies of the summons and complaint to each Borrower.    
The lower court approved the sale of the property and entered an order for possession.  Borrowers appealed. 
As you may recall, the substitute service provision of the Illinois Code of Civil Procedure provides in part that  "service of summons upon an individual defendant shall be made . . . by leaving a copy at the defendant's usual place of abode, with some person of the family or a person residing there . . . provided the officer or other person making service shall also send a copy of the summons in a sealed envelope with postage fully prepaid, addressed to the defendant at his or her usual place of abode . . . .  The certificate of the officer or affidavit of the person that he or she has sent the copy in pursuance of this Section is evidence that he or she has done so."  735 ILCS 5/2-203(a) ("Section 2-203(a)").
Applying the plain and ordinary meaning of the statute and noting that the current version of section 2-203(a) specifically allows substitute service on either a family member or a non-family member residing at the household, the Appellate Court concluded that a defendant's family member need not reside in the defendant's household in order for service to be properly attained.  See, e.g., Anchor Finance Corp. v. Miller, 8 Ill. App. 2d 326, 330 (1956)(the word  "family" in the substitute service provision presupposes that a "relation of confidence exists between the person with whom the copy is left and defendant that notice will reach defendant; [substitute service provisions] assume that such person will deliver the process or copy to defendant or in some way give him notice thereof").
In ruling that the substitute service in this case was proper, the Court noted that:  (1) Borrowers acknowledged that the Mother accepted service at their residence; (2) Section 2-203(a) does not require a family member to reside in the same household with a defendant; and, (3) because of the family relationship and the Mother's presence in the home, the Mother presumably gave the summons and complaint to Borrowers.
Turning to Borrowers' second argument that the lower court should have quashed service as to one of the Borrowers based on the process server's original supplemental affidavit stating that he mailed "a copy"  of the summons and complaint to Borrowers, the Appellate Court noted that, in cases of substitute service, service must strictly comply with section 2-203(a).  See Bank of Lake Zurich v. Thill, 113 Ill. 2d 294, 309 (1986)(presumption of validity that exists in cases of personal service does not apply in cases of substitute service). 
Nevertheless, the Court concluded that a process server's return may only be set aside by clear and satisfactory evidence as to matters within the personal knowledge of the process server, such as the fact that service was made, his own action in serving process, where service occurred, and who accepted service.   Nibco, Inc. v. Johnson, 98 Ill. 2d 166, 172 (1983).
Applying this standard, the Court ruled that the process server's returns of service clearly established that he mailed separate copies of the summons and complaint individually to each Borrower and that clear and satisfactory evidence was lacking in this case to set aside the prima facie evidence that the process server complied with Section 2-203(a).
Accordingly, the Appellate Court affirmed the lower court's denial of  Borrowers' motion to quash service.

Ralph T. Wutscher
McGinnis Wutscher LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
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