Thursday, November 6, 2014

FYI: Ill App Ct Rules Trial Court Improperly Accepted Mortgagee's Affidavits in Support of Service By Publication, Improperly Rejected Borrower's Opposing Affidavits

The Illinois Appellate Court, First District, recently held that a mortgagee’s affidavits used to support service by publication against a borrower did not comply with Illinois and local county rules, and therefore that the borrower was not properly served, and the related judgment of foreclosure by default was improperly entered.


The Court also held that the trial court failed to properly consider the borrower’s affidavits when ruling on his motion to quash service by publication and motion to reconsider.


A copy of the opinion is available at:


A borrower failed to make payments on his mortgage loan, and the mortgagee filed a complaint to foreclose mortgage.  The mortgagee moved to have special process servers appointed. 


Subsequently, the mortgagee’s counsel filed two affidavits to allow service by publication.  According to the Appellate Court, the first affidavit, filed pursuant to an Illinois statute on the subject, failed to specify what “diligent inquiry” had been made concerning the whereabouts of the borrower.  The later affidavit, filed pursuant to a local trial court rule, also according to the Appellate Court failed to specify what “diligent inquiry” had been made concerning the whereabouts of the borrower.


The mortgagee also filed two additional supporting affidavits.  The owner of a process-serving company filed the first supporting affidavit.  Generally, it stated that his employee searched for new addresses and new records concerning the borrower.


The second supporting affidavit, signed by the court-appointed special process server, stated that he was unable to effect service of the summons and complaint on the borrower.  Of note, his affidavit further stated that he went to the subject condominium three mornings during Memorial Day weekend, a phone (possibly an apartment building intercom) was disconnected, and an unspecified neighbor told him that the borrower went back to visit his family in Poland.  The latter affidavit also attached two pictures.  One picture showed the exterior of the apartment building, and the other showed the apartment building lobby.


The court allowed service by publication, and the mortgagee published a notice of the pending action in June and July 2010.  In May 2011, it filed a motion for entry of an order of default judgment and for foreclosure and sale against the borrower for failure to answer and appear.  On June 23, 2011, the trial court entered an order of default and judgment for foreclosure and sale against the borrower.


On August 18, 2011, a notice of sale was mailed to borrower at the condominium.  The borrower asserted that this was the first time that he became aware of the lawsuit.


The borrower filed a motion to quash service and to vacate the judgment for foreclosure.  He claimed that the service made by publication was invalid because he resided at the property and was not personally served.  He provided two affidavits stating that he had resided at the condominium since June 2007.  The affidavits also stated that one would have been able to view his possessions in the property and that a process server could have served him at another time.  The trial court denied the borrower’s motion to quash.


The borrower then filed a motion to reconsider and attached another affidavit.  He attached another affidavit which reflected that he had not attempted to conceal his whereabouts to leave the state or avoid litigation.  He further attested that he was Bulgarian, not Polish, and provided supporting documentation demonstrating that he lived at the condominium.  The trial court denied the borrower’s motion to reconsider, noting that the borrower’s two self-serving affidavits were not sufficient.  The trial court did not reference the borrower’s third affidavit or supporting documentation.


As you may recall, proper service is required for a court to obtain jurisdiction over the parties.  When a defendant has not been served with process as required by law, a court has no jurisdiction over that defendant and a default judgment against him is void.  See Equity Residential Properties Management Corp. v. Nasalo, 364 Ill. App. 3d 26, 32 (1st Dist. 2006).


The Appellate Court noted that Section 2-206 of the Illinois Code of Civil Procedure required a plaintiff requesting service by publication to file an affidavit showing that a defendant “on due inquiry cannot be found, or is concealed within this State, so that process cannot be served upon him or her, and stating the place of residence of the defendant, if known, or that upon diligent inquiry his or her place of residence cannot be ascertained[.]”  See 735 ILCS 5/2-206. 


In addition, the county in which the trial court sat (Cook County) adopted a rule elaborating on the requirement for the affidavit.  It requires that all affidavits for service of summons by publication be accompanied by a sworn affidavit by the individuals making such due inquiry, setting forth with particularity the action to demonstrate an honest and well directed effort to ascertain the whereabouts of the defendant, by inquiring as full as circumstances permit prior to placing any service of summons by publication.  See Cook. Co. Cir. Ct. R. 7.3. 


The Court placed particular emphasis on the Cook County Local Rule 7.3’s “honest and well-directed effort” requirement.  It criticized the process-server’s decision to attempt service three times over the course of Memorial Day weekend.  Nor did the process server try coming at alternative times during the day.  Further, the Court enumerated additional actions that the process server could have taken in order to determine whether the borrower lived at the condominium.  Accordingly, the Appellate Court held that service by publication was not justified, and any order entered by the trial court was void.


Next the Appellate Court turned to the borrower’s affidavits, as the borrower was required to show that he could have been found on due inquiry.  Employing a de novo standard of review, the Court concluded that the trial court erred in rejecting all three of the borrower’s affidavits.  The Court reasoned that if from consideration of the documents in their entirety, the affidavits appeared to satisfy Illinois Supreme Court Rule 191 because the affidavits were based upon the personal knowledge of the borrower, and there was a reasonable inference that the borrower could testify to the affidavits’ contents at trial.  See Doria v. Village of Downers Grove, 397 Ill. App. 3d 752, 795 (2d Dist. 2009).  Thus, the Appellate Court held that the borrower’s affidavits were sufficient to meet his burden of showing that he could have been found upon due inquiry.


Accordingly, the Appellate Court reversed and remanded the case to the trial court.





Ralph T. Wutscher
McGinnis Wutscher Beiramee 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


Admitted to practice law in Illinois



          McGinnis Wutscher Beiramee LLP





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: