Tuesday, October 30, 2012

FYI: Ill App Ct Rejects Foreclosure Challenge Based on Alleged Impropriety with Clerk of Court's Signature on Summons

The Illinois Appellate Court, Second District, recently held that a summons issued in a foreclosure case was valid, even though the handwritten signature appearing in the area for the court clerk's signature did not closely resemble the actual signature of the clerk of the court. 
A bank instituted foreclosure proceedings against a borrower.  On the summons to the borrower, the name of the clerk of the court appeared in handwritten cursive script.  The signature did not closely resemble the signature registered as that of the clerk with the Secretary of State. 
The borrower did not appear in court, and the court entered a judgment of foreclosure.  The borrower then filed a motion to quash service, arguing that the only methods by which a clerk can properly sign a summons are by his or her own hand, or by a facsimile signature.  The lower court denied the motion, and the borrower appealed. 
The Illinois Clerks of Courts Act provides that clerks may, "after filing with the Secretary of State his or her manual signature...execute or cause to be executed with a facsimile signature...all forms of process and notices..."   705 ILCS 105/8. 
The Court was guided in its decision here by precedent concerning what constitutes a valid signature for the purposes of the duties of a clerk of court.  It cited a case providing that "signing a document is the act of putting down a person's name to attest to the validity of an instrument and that signature may be stamped, printed or made legible by using any other device."  National City Bank v. Majercyk, 2011 IL App (1st) 110640, para. 3. 
Because "the Majercyzk court clearly accepted that a signature can be in any form that can act as a person's mark," the Court held that the clerk's signature on the summons in question was valid. 
The Court did acknowledge that the borrower's objection to the signature had some force as a policy matter, observing that the signature method used here "is potentially misleading," and that a mode of signing that permits the identification of the individual who actually signed the document is "much the better policy."  Nevertheless, the Court did not find anything in "either [the borrower's] brief or our examination of relevant authority [to] suggest[] that the law requires some specific format when a deputy signs a summons or anything else for the clerk." 
Accordingly, the Court affirmed the judgment of the lower court. 

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