Expanding on Section 2-206, the Circuit Court of Cook County additionally requires that, in mortgage foreclosure actions, affidavits in support of publication service "must be accompanied by a sworn affidavit by the
individual(s) making such 'due inquiry' setting forth with particularity the action taken to demonstrate an honest and well directed effort to ascertain the whereabouts of the defendant(s) by inquiry . . ." Cook Co. Cir. Ct. R. 7.3.
Ruling that the submitted affidavits did not meet the local Cook County Rule 7.3's requirement that affiants swear that they personally undertook the actions listed in the affidavit, the Appellate Court concluded that the trial lacked jurisdiction to enter a default judgment.
In so ruling, the Court rejected the Loan Owner's assertion that Illinois Civil Code Section 15-1509(c) barred any challenge to a foreclosure and sale, even where the court lacked jurisdiction over the defendant. The Court explained that judgments entered without jurisdiction over the parties are void and of no legal effect, and ruled that Section 15-1509(c) applies only to valid judgments entered with jurisdiction, not to instances of improper publication service. In so ruling, the Court stated, "nothing in section 15-1509 indicates that the legislature sought to make foreclosure judgments take effect and deprive owners of their properties when the trial court lacked personal jurisdiction over the owners."
Ralph T. Wutscher
McGinnis Tessitore Wutscher LLP
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