Wednesday, July 16, 2014

FYI: Ill App Ct Reverses Foreclosure Judgment Based on Faulty Service by Publication Affidavit

The Illinois Appellate Court, First District, recently held that a foreclosing mortgagee’s affidavit supporting a motion for service by publication did not strictly comply with the relevant statutory requirements, in that the affidavit was stale as notarized fifty days prior to the filing of the motion and recited attempts at service made after the affidavit was notarized. 


Accordingly, the Court held that the lower court did not have personal jurisdiction over the borrower, and vacated the lower court's judgment of foreclosure and order confirming the foreclosure sale. 


A copy of the opinion is available at:


A mortgagee filed a foreclosure lawsuit, and made numerous attempts to serve the borrower at various locations in Illinois and Florida.  None of the mortgagee's attempts were successful.  Accordingly, the mortgagee filed a motion to allow service by publication, which included an affidavit (the "affidavit") reciting its attempts at service. 


Although the affidavit's notary seal was dated September 14, 2009, it recited attempts at service that took place on September 23 and October 28 of 2009.  The affidavit was filed with the court on November 3, 2009. 


The lower court granted the mortgagee's motion for service by publication.  When the borrower failed to appear, the lower court entered a judgment of foreclosure and sale in favor of the mortgagee.


Before the sale took place, the borrower filed a motion to quash service, alleging defects in the mortgagee's affidavit.  The lower court denied the borrower's motion, and the borrower appealed. 


As you may recall, Illinois law provides for service by publication, where the defendant "on due inquiry cannot be found."  735 ILCS 5/2-206(a). 


On appeal, the Court reviewed the applicable case law, noting that although service by publication is permitted by statute, it is an "extraordinary means of serving notice" that requires "strict compliance with every requirement" of the relevant statute.  See Public Taxi Service Inc. v. Aryton, 15 Ill. App. 706, 713 (1973); Illinois Valley Bank v. Newman, 351 Ill. 380, 383 (1933). 


The Court next considered the borrower's various arguments, beginning with the contention that the mortgagee's affidavit improperly listed the borrower's last known address as that of the property that was the subject of the foreclosure action, rather than an alternative address where the mortgagee attempted service.        


The Court rejected the borrower's argument, noting that the borrower failed to provide any evidence of his correct address - or even affirmatively represent what his correct address might be.  Therefore, the Court determined that "where the borrower challenges the accuracy of the representation of his last known address but fails to provide the court with competent evidence substantiating the claimed error, he has not provided a sufficient basis for challenging service by publication." 


Next, the Court turned the borrower's contention that the affidavit was stale, in that it was allegedly notarized 50 days before the related motion for service by publication was filed. 


The Court found this argument persuasive, noting that although the statute does not provide for "time limits" to determine whether attempts to locate a defendant are sufficient, "[c]ommon sense dictates...that an affidavit that recites efforts to locate a party occurring a substantial period of time prior to the filing of the motion to serve by publication may not be sufficient to establish the diligence required." 


Next, the Court noted that although there was no recent authority on the issue, two cases - decided in 1933 and 1866 - indicated that a 20-day delay between the execution of the affidavit and the filing of the related motion was unreasonable.  See Illinois Valley Bank v. Newman, 351 Ill. 380 (1933); Campbell v. McCahan, 41 Ill. 45 (1866). 


The Court reasoned that if a 20-day delay "defeated the showing of due diligence required to justify service by publication, it would seem obvious that a 50-day delay nearly 150 years later in the age of instant information should suffer the same fate." 


The mortgagee argued that the affidavit reflected attempts to serve the borrower as late as October 28, 2009 - or only six days from the date the affidavit was filed.


However, the Court found this argument unpersuasive in light of the fact that the affidavit was notarized in September of 2009.  Because "on this record, we have no way of knowing the correct date the affidavit was executed and notarized," the Court held that the mortgagee had not strictly complied with every element of the statute. 


Accordingly, the Court held that the publication notice did not confer personal jurisdiction over the borrower, and that subsequent orders based on that service were void.  The Court therefore reversed the lower court's denial of the borrower's motion to quash and vacated the judgment of foreclosure.  






Ralph T. Wutscher
McGinnis Wutscher Beiramee 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


Admitted to practice law in Illinois



          McGinnis Wutscher Beiramee LLP





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