The Illinois Appellate Court, First District (“Appellate Court”) recently affirmed a trial court’s denial of a borrower’s motion to quash service of process in a foreclosure action, holding that the plaintiff bank complied with the requirements of the Illinois Code of Civil Procedure and local rules for service by publication where it provided affidavits setting forth specific actions the process server took to determine the defendant borrower’s whereabouts, and where there was no evidence that the bank knew where the defendant borrower resided.
A copy of the opinion is available at http://www.illinoiscourts.gov/Opinions/AppellateCourt/2015/1stDistrict/1132070.pdf.
The plaintiff bank (“Bank”) filed a mortgage foreclosure action against the defendant borrower (“Borrower”). After filing the complaint, the plaintiff Bank retained a private detective agency (the “Agency”) to locate and serve the Borrower.
Multiple affidavits were executed by various process servers of the Agency, indicating that the process servers first attempted to serve the Borrower in August of 2011 at five different addresses, all located in Chicago. All of the affidavits were signed by the respective affiant and notarized. The affidavits also all stated that "after due search, careful inquiry and diligent attempts I have been unable to effect process" before stating a reason why service was unsuccessful.”
Due to the Bank’s inability to serve the Borrower in August of 2011, the Bank sought and obtained an alias summons in May 10, 2012. The Bank then filed two affidavits demonstrating a process server’s attempts at service on the Borrower in May and June of 2012 at two Chicago addresses: 2707 West Medill Avenue and 4218 W. Thorndale Avenue.
On July 16, 2012, the Bank filed an affidavit for service by publication. In the affidavit, the Bank’s counsel stated the Borrower could not be served because he could not be found upon diligent inquiry. Counsel also attached an affidavit outlining the steps she took to find defendant utilizing various databases and searches.
The trial court permitted service by publication, and subsequently entered default and judgment of foreclosure against the Borrower, and ultimately an order approving sale. Within 30 days of the entry of the order of the confirmation of the sale, the Borrower appeared and filed an emergency motion to quash service, which the trial court denied.
On appeal, the Borrower raised two issues: (1) whether the affidavits plaintiff relied upon to effectuate service of process upon the Borrower were based on the affiant's personal knowledge and sufficiently set forth the particular actions taken to serve him to satisfy the Illinois Code of Civil Procedure, 735 ILCS 5/2-206 (“Code”) and local rule 7.3; and (2) whether the Bank’s affidavit of service by publication spoke the truth and complied with section 2-206 of the Code where the Bank stated the Borrower’s residence was unknown despite a diligent inquiry.
You may recall, section 2-206 of the Code provides as follows:
[P]laintiff or his or her attorney shall file *** an affidavit showing that the defendant resides or has gone out of 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, the clerk shall cause publication to be made in some newspaper published in the county in which the action is pending.
735 ILCS 5/2-206(a).
Moreover, local rule 7.3 provides:
Pursuant to [section 2-206(a) of the Code], due inquiry shall be made to find the defendant(s) prior to service of summons by publication. In mortgage foreclosure cases, all affidavits of service of summons by publication 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 as full as the circumstances permit prior to placing any service of summons by publication.
Cook Co. Cir. Ct. R. 7.3.
The Appellate Court noted that “[t]he statutory prerequisites for service by publication, including due diligence and due inquiry, must be strictly complied with in order for a court to obtain jurisdiction over a defendant.”
Relying solely on the opinion in Deutsche Bank National Trust Co. v. Brewer, 2012 IL App (1st) 111213, the Borrower argued that the affidavits the Bank relied upon to effectuate service of process by publication were passive voice recitations and did not set forth the particular actions taken to serve him. Accordingly, he argued that the Bank's affidavits did not support service of process by publication under section 2-206 of the Code.
The Borrower also argued that the Bank’s affidavit for service by publication did not speak the truth and did not comply with section 2-206 of the Code because, despite its knowledge that the Borrower resided at 4218 West Thorndale, the Bank failed to state the Borrower resided there in its affidavit for service by publication.
In response, the Bank argued that it strictly complied with both section 2-206 of the Code and local rule 7.3. Specifically, the Bank argued that the affidavits it filed in the trial court showed that the affiants had personal knowledge of the multiple attempts at both serving the Borrower, and at trying to locate him through various methods.
Moreover, the Bank argued that the court's decision in Brewer, 2012 IL App (1st) 111213, was distinguishable because the Bank’s affidavits identified the affiant and attested to the affiant's personal knowledge.
Regarding the Borrower’s argument that the Bank knew of the Borrower’s residence at 4218 West Thorndale, the Bank argued that the Borrower’s contention was not supported by the record.
In ruling in favor of the Bank, the Appellate Court held that “the affidavits at issue here are easily distinguishable from the affidavits found to be insufficient in Brewer.”
Specifically, the Appellate Court noted that “[u]nlike in Brewer, the affidavits in this case specifically identified the affiant by name and outlined the steps the affiant took to either find or attempt service upon defendant. The affidavits were notarized and signed by the named affiant. The affidavits for the attempted service of the summons and complaint each named the respective process server who made the attempt at service.”
The Appellate Court also “disagree[d] with [the Borrower’s] contention that [the Bank] failed to specify the steps [the Bank] took to locate him,” where the affidavits “identified several different databases she searched in an effort to locate defendant.”
Further, the process servers attempted service fourteen times total at five different Chicago addresses, including eight different attempts on six different dates at 4218 West Thorndale, where the Borrower later alleged he resided.
Under these facts, the Appellate Court held that the Bank “showed that it made a diligent inquiry and set forth specific actions it took to determine defendant's whereabouts sufficient to justify service by publication in accordance with section 2-206(a) of the Code and local rule 7.3.”
The Borrower’s second argument was that the Bank’s affidavit for service by publication did not speak the truth because it failed to state defendant's residence as 4218 West Thorndale in violation of section 2-206(a) of the Code. The Borrower’s argument was based on the premise that the Bank knew he resided at 4218 West Thorndale prior to serving him by publication.
The Appellate Court “disagree[d] with [the Borrower’s] contention and [did] not find that [the Bank] affirmatively misstated [the Borrower’s] residence.” Instead, the Appellate Court noted that the record demonstrated that the Bank, “after a diligent search and inquiry, was not able to ascertain [the Borrower’s] residence.”
The Appellate Court concluded that the Bank “did not know defendant resided at 4218 West Thorndale,” and that “section 2-206 only requires a plaintiff to state a defendant's residence ‘if known.’" Otherwise, the affidavit must state "that upon diligent inquiry his or her place of residence cannot be ascertained."
The Appellate Court therefore held that “the absence of a statement indicating that [the Borrower] resided at 4218 West Thorndale does not violate section 2-206(a) of the Code because such a statement is only required if the residence is known to the plaintiff.
Ralph T. Wutscher
McGinnis Wutscher Beiramee LLP
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Chicago, Illinois 60602
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Email: rwutscher@mwbllp.com
Admitted to practice law in Illinois
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