Thursday, April 19, 2012

FYI: Ill App Ct Rejects Borrowers' Challenge to Service of Process and Publication Notice

The Illinois Appellate Court, First District, recently upheld a default judgment in a residential mortgage foreclosure action, ruling that:  (1) a Cook County standing order appointing a special process server was valid, where such order was issued pursuant to a General Administrative Order allowing appointment of special process servers in foreclosure actions; and  (2) service by publication was proper, where the supporting affidavit satisfied the requirements for publication service.
A copy of the opinion is available at: 
Plaintiff bank ("Bank") filed a complaint to foreclose.  Through its attorneys, the Bank obtained a standing order for the appointment of a special process server in accordance with a General Administrative Order (GAO) allowing law firms in mortgage foreclosure cases in Cook County, Illinois to seek a standing order for the appointment of special process servers. 
The special process server appointed through this process attempted to personally serve the borrowers with the summons and complaint on 14 different occasions.   The Bank's attorneys therefore submitted an affidavit requesting leave for service by publication, stating that no other address for the Borrowers could be found.  Based on the affidavit, the court granted approval for publication service. The borrowers never appeared, and the Bank eventually obtained a default judgment in the foreclosure action, the property was sold at a judicial sale, and the court later confirmed the sale.
A little over a year after the entry of the default judgment, the borrowers moved to quash service, arguing in part that the standing order appointing the special process server was invalid because the standing order did not follow the requirements of the GAO.  The court denied both motions.
The borrowers appealed, and the Appellate Court affirmed.
Illinois law specifies that a summons must be issued upon plaintiff's request after the filing of a complaint.  735 ILCS 5/2-201 ("Section 2-201").  Illinois also allows service by publication whenever a plaintiff or plaintiff's attorney files an affidavit showing that the defendant on "due inquiry" cannot be found.  735 IlCS 5/2-206(a)("Section 2-206"). 
In addition, Cook County General Administrative Order 2007-03 ("GAO") permits law firms in foreclosure actions to request a standing order designating a special process server for a period of three months.  The GAO specifies in pertinent part: "[e]ach Motion and Order for a standing process server order shall bear the heading '. . . Standing Order for the Appointment of a Special Process Server for the Quarter Ending [INSERT DATE].'"  
In assessing the validity of the standing order appointing a special process server in this case, the Appellate Court rejected the borrowers' overall argument that the GAO was invalid because the lower court judge lacked the authority to issue the GAO.  To support their argument, the Borrowers put forth various theories claiming that:  (1) there was no authority under common or statutory law for issuing the GAO; (2) issuance of the GAO violated Illinois Supreme Court Rules; (3) the GAO conflicted with the Illinois Code of Civil Procedure governing the appointment of special process servers and commencement of civil actions; and (4) the GAO circumvented the statutory procedure for service of process and the court therefore lacked jurisdiction.
The borrowers asserted that, because the signature on the process server's affidavit was illegible and the affiant's name was not printed on the form permitting clear identification of the affiant, the affidavit failed to satisfy the requirements for publication service in Section 2-206. 
Ruling that Section 2-206 did not require identification of the affiant by anything other than a signature, the Court concluded that the affidavit was "more than adequate" to support service by publication and complied with Section 2-206.  In so ruling, the Court also noted that the affidavit contained all the elements of a valid affidavit, including one for service of process by publication.  

Ralph T. Wutscher
McGinnis Tessitore 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

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: