Saturday, January 7, 2012

FYI: Ill App Ct Rules in Favor of Foreclosing Mortgagee in Borrower's Challenge to Validity of Summons

The Illinois Appellate Court, First District, recently held that a summons in a mortgage foreclosure case was valid, because it bore the seal of the trial court clerk and the clerk's stamped name, and in so holding rejected the borrowers' argument that the summons must bear the clerk's cursive signature. 
A copy of the opinion is available at:
The borrowers argued that the trial court should have granted their motion to quash service, because the summonses issued to them did not bear the court clerk's cursive signature.  Because they alleged that service was improper, they also asserted that the court did not have personal jurisdiction over them.
It was undisputed that the borrowers each were served with a mortgage foreclosure complaint and summons in the case.  The summonses had the seal of the court clerk and the clerk's stamped printed name.  In support of their position, the borrowers cited to Illinois Supreme Court Rule 101(a), which provides that "[t]he summons shall be issued under the seal of the court, [at]tested in the name of the clerk, and signed with his name." 
The Court concluded that the real issue was what constituted a signature under the Rule.  Examining relevant precedent, the Court determined that a signature need not be written in cursive form in order to validate a summons.  The Court explained that "signing" is the act of putting down a person's name in order to attest to the validity of an instrument.  A signature may be stamped, printed, or made legible by using any other device.  Reviewing precedential case law and quoting Black's Law Dictionary, which defines a "signature" as a "person's name or mark written by that person or at that person's direction," the Court declared that a "mark" cannot be construed as a cursive signature.
The Appellate Court therefore found no authority that supported the proposition that the clerk's stamped name in this case was invalid because it was not in cursive form.  In addition, the borrowers presented no evidence to establish that the summonses were not issued under the circuit court clerk's authority.  Accordingly, the Court held that the summonses were properly issued, and affirmed the judgment of the lower court also rejecting the borrowers' arguments.

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