Monday, July 12, 2021

FYI: IL Sup Ct Vacates Foreclosure Judgment Due to Service in Cook County by Non-Appointed Process Server

The Supreme Court of Illinois recently reversed a trial court order in a case filed outside of Cook County denying a Cook County borrower's petition challenging a foreclosure judgment as void for lack of jurisdiction, finding that a licensed or registered private detective may not serve process in counties with a population of 2,000,000 or more – such as Cook County -- without special appointment under 735 ILCS 5/2-202.


A copy of the opinion is available at:  Link to Opinion


A mortgagee filed a foreclosure action against a borrower in Kankakee County.  The mortgagee served the borrower in Cook County without moving to appoint a process server.  The borrower did not appear, the trial court found that it had personal jurisdiction over the borrower and entered a judgment of foreclosure and sale. The mortgagee was the successful bidder at the foreclosure sale and moved to confirm the sale.


The borrower appeared at the sale confirmation hearing and argued "that he had not been aware of the sale." Despite this, the trial court confirmed the sale. 


The borrower then filed a petition to vacate the foreclosure judgment for lack of personal jurisdiction arguing "that under section 2-202 of the [Illinois Code of Civil Procedure], a private process server cannot serve process on a defendant in Cook County without first being appointed by the circuit court." 


The trial court denied the borrower's petition and the appellate court affirmed.  This appeal to the Illinois Supreme Court followed.


The Illinois Supreme Court observed that the issue on appeal turned "on the proper construction of section 2-202."  The relevant portion of Section 2-202 of the Code states, in pertinent part:


"Persons authorized to serve process; Place of service; Failure to make return. (a) Process shall be served by a sheriff, or if the sheriff is disqualified, by a coroner of some county of the State. In matters where the county or State is an interested party, process may be served by a special investigator appointed by the State's Attorney of the county ***. A sheriff of a county with a population of less than 2,000,000 may employ civilian personnel to serve process. In counties with a population of less than 2,000,000, process may be served, without special appointment, by a person who is licensed or registered as a private detective under the Private Detective, Private Alarm, Private Security, Fingerprint Vendor, and Locksmith Act of 2004 ***. *** * * * (b) Summons may be served upon the defendants wherever they may be found in the State, by any person authorized to serve process. An officer may serve summons in his or her official capacity outside his or her county, but fees for mileage outside the county of the officer cannot be taxed as costs. The person serving the process in a foreign county may make return by mail."


735 ILCS 5/2-202(a), (b).


The mortgagee argued that service on the borrower was proper because when you read the two subsections together, the correct interpretation is that the county where the lawsuit is filed, not the county where service occurs, controls the authority of the process server.  Thus, the restriction in subsection (a) that only allows service of process in Cook County by a court appointed private detective should not apply. 


The Illinois Supreme Court rejected the mortgagee's interpretation because section 2-202 does not address where a complaint is filed. Instead, the plain language of the section concerns where a defendant is served with process. 


Subsection (a) provides that in all counties except Cook County (which has more than two million residents), "process may be served, without special appointment, by a person who is licensed or registered as a private detective."  Thus, according to the Illinois Supreme Court, it follows that to serve a defendant using a private detective in Cook County, the court must appoint a private process server.


Here, because the mortgagee did not obtain an order appointing a process server to serve the borrower in Cook County, the service by the private detective on the borrower was not "by any person authorized to serve process" as required by subsection (b) and the service on the borrower was not proper.


The Illinois Supreme Court acknowledged that it may be inconvenient to require the trial court to appoint a special process server to serve a defendant in Cook County, but "where the language of a statute is clear, this court is not free to read into it exceptions that our legislature did not express and must give it effect as written." 


Thus, because the mortgagee's private detective served the borrower in Cook County without the required order specifically appointing the private process server, the service of process was defective and the trial court lacked personal jurisdiction over the borrower.


The mortgagee also argued that the trial court had jurisdiction over the borrower because he voluntarily appeared and submitted himself to the trial court's jurisdiction at the motion to confirm sale hearing.  However, this only waived the borrower's objection to the trial court's jurisdiction prospectively.  This "appearance did not retroactively validate void" prior orders and the trial court still lacked jurisdiction to enter the foreclosure judgment.


Thus, the Illinois Supreme Court reversed and remanded the matter to the trial court for proceedings consistent with its decision.




Ralph T. Wutscher
Maurice Wutscher LLP
The Loop Center Building
105 W. Madison Street, 6th Floor
Chicago, Illinois 60602
Direct:  (312) 551-9320
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