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

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.

A copy of the opinion is available at: http://www.state.il.us/court/Opinions/AppellateCourt/2012/1stDistrict/1112978.pdf.

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
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The Editor's Bio

Ralph T. Wutscher
Maurice Wutscher LLP
20 N. Clark Street, 33rd Floor
Chicago, Illinois 60602
Direct: (312) 493-0874
RWutscher@MauriceWutscher.com
https://www.MauriceWutscher.com/

Ralph Wutscher's practice focuses primarily on representing depository and non-depository mortgage lenders and servicers, as well as mortgage loan investors, distressed asset buyers and sellers, loss mitigation companies, automobile and other personal property secured lenders and finance companies, credit card and other unsecured lenders, and other consumer financial services providers. He represents the consumer lending industry as a litigator, and as regulatory compliance counsel.

Ralph has substantial experience in defending private consumer finance lawsuits, including cases ranging from large interstate putative class actions to localized single-asset cases, as well as in responding to regulatory investigations and other governmental proceedings. His litigation successes include not only victories at the trial court level, but also on appeal, and in various jurisdictions. He has successfully defended numerous putative class actions asserting violations of a wide range of federal and state consumer protection statutes. He is frequently consulted to assist other law firms in developing or improving litigation strategies in cases filed around the country.

Ralph also has substantial experience in counseling clients regarding their compliance with federal laws, and with state and local laws primarily of the Midwestern United States. For example, he regularly provides assistance in connection with portfolio or program audits, consumer lending disclosure issues, the design and implementation of marketing and advertising campaigns, licensing and reporting issues, compliance with usury laws and other limitations on pricing, compliance with state and local “predatory lending” laws, drafting or obtaining opinion letters on a single- or multi-state basis, interstate branching and loan production office licensing, evaluations and modifications of new or existing products and procedures, debt collection and servicing practices, proper methods of responding to consumer inquiries and furnishing consumer information, as well as proposed or existing arrangements with settlement service providers and other vendors, and the implementation of procedural or other operational changes following developments in the law.

Ralph is a member of the Governing Committee of the Conference on Consumer Finance Law. He is also the immediate past Chair of the Preemption and Federalism Subcommittee for the ABA's Consumer Financial Services Committee. He served on the Law Committee for the former National Home Equity Mortgage Association, and completed two terms as Co-Chair of the Consumer Credit Committee of the Chicago Bar Association.

Ralph received his Juris Doctor from the University of Illinois College of Law, and his undergraduate degree from the University of California at Los Angeles (UCLA). He is a member of the national Mortgage Bankers Association, the American Bankers Association, the Conference on Consumer Finance Law, DBA International, the ACA International Members Attorney Program, as well as the American and Chicago Bar Associations.

Ralph is admitted to practice in Illinois, as well as in the United States Court of Appeals for the Seventh Circuit, the United States District Courts for the Northern and Southern Districts of Illinois, and the United States District Court for the Eastern District of Wisconsin, and has been admitted pro hac vice in various jurisdictions around the country.