The Appellate Court of Illinois, First District, recently held that a trial court should not have rejected a borrower's attempt to vacate two different foreclosure judgments against him on the grounds of defects in service of process in those actions.
In so ruling, the First District held that:
-1 The summonses at issue violated Illinois law because they were not specifically directed to the defendant, and because they did not name all defendants in the caption; and
-2 The lists of persons to be served that were included with each summons were not acceptable replacements for a proper summons, because the service lists did not clearly identify that defendant was a party to the lawsuit; and
-3 Illinois law does not allow the "et al." abbreviation on summonses.
A copy of the opinion is available at: Link to Opinion
During 2012-2013, a mortgagee filed three separate foreclosure actions against three separate properties and numerous co-defendants. An individual defendant ("defendant") was named as a defendant in each foreclosure action along with limited liability companies and other parties.
The record from the first foreclosure action indicated a summons was personally served on the individual borrower as registered agent of an LLC and individually. The record from the second foreclosure action contained no summons being issued but an affidavit from a process server indicating that the borrower was personally served. The record from the third foreclosure action included an affidavit from a process server indicating the defendant was served by leaving a copy with his 13-year-old son and by mailing him a copy.
The defendant did not appear in any of the foreclosure actions and three separate default judgments were entered against him and the other defendants in each action. In 2021, The borrower filed petitions for relief from the judgments in all three cases arguing that summonses did not include his name on their faces, the trial court never obtained jurisdiction over him because the court did not approve the use of a special process server, there were no summonses whatsoever in the court file and he was not actually served.
In support of his petition, defendant filed an affidavit stating he was never served with the summonses. The trial court denied defendant's petition and held in all three cases that the mortgagee's failure to refer to the service list on the summonses was a technical defect that did not warrant or justify granting the petition. The defendant appealed.
On appeal, defendant argued that the trial court lacked personal jurisdiction over him in all three cases because he was not validly served with process in any of those cases. He further argued the trial court should have granted his petitions and vacated all judgments against him as void due to lack of jurisdiction.
Illinois law (735 ILCS 5/2-1401) allows a party to seek relief from a final judgment more than 30 days after judgment has been entered if the petition sets forth specific factual allegations supporting each of the following elements: (1) the existence of a meritorious defense; (2) due diligence in presenting this defense or claim to the circuit court in the original action; and (3) due diligence in filing the section 2- 1401 petition for relief." Warren County Soil and Water Conservation District v. Walters, 2015 Nos. 1-22-1204, 1-22-1205, 1-22-1206.
In addition, Illinois law provides that: "[a] court's jurisdiction is not affected by a technical error in format of a summons if the summons has been issued by a clerk of the court, the person or entity to be served is identified as a defendant on the summons, and the summons is properly served. This subsection is declarative of existing law." 735 ILCS 5/2-201(c) (West 2018).
The Appellate Court noted that, in the first and third foreclosure action, the summonses did not contain the defendant's name anywhere on the 5-page summons. As a result, the Appellate Court held that the summonses violated Illinois law because they were not specifically directed to the defendant, and because they did not name all defendants in the caption. See Ill. S. Ct. R. 101(a), (d) (eff. May 30, 2008).
The Appellate Court further noted that the service lists are not acceptable replacements for a proper summons because they did not clearly identify that defendant was a party to the lawsuit. The Appellate Court held that plaintiffs should not assume that lay defendants will understand that "et al." includes them, and Illinois law does not allow the "et al." abbreviation on summonses. See Ill. S. Ct. R. 131(c) (eff. Nov. 15, 1992).
Next, the Appellate Court addressed the laches argument raised by the mortgagee. Generally, laches, precludes a litigant from asserting a claim when the litigant's unreasonable delay in raising the claim prejudice the opposing party. Federal National Mortgage Association v. Altamirano, 2020 IL App (2d) 190198.
The Appellate Court declined to resolve the case on the grounds of laches because it would be inequitable to the defendant, because the procedural history of the case indicated the defendant took action as soon as the mortgagee sought to revive the judgments against him. Since the defendant was not properly served, and the Appellate Court found that the trial court was without personal jurisdiction over him in the first and third foreclosure action and reversed the denial of defendant's petitions and vacated the judgments against him, and remand these matters.
However, the Appellate Court reached a different conclusion as to the second foreclosure action.
In Illinois, a process server's return affidavit is prima facie evidence of proper service, and the affidavit of service should not be set aside unless impeached by 'clear and convincing evidence.'" Illinois Service Federal Savings and Loan Ass'n of Chicago v. Manley, 2015 IL App (1st) 143089, ¶ 37 (quoting Paul v. Ware, 258 Ill. App. 3d 614, 617-18 (1994)).
Because the record in the second foreclosure action contained a copy of the special process server's affidavit, which stated that he personally served defendant with the "summons and a copy of the complaint" at an address in Skokie, Illinois on June 20, 2012. Additionally, the affidavit also included the defendants purported gender, race, and age as required by 735 ILCS 5/2-203(b). As defendant did not present affirmative evidence beyond his own affidavit to contest the validity of service, the Appellate Court noted that defendant did not demonstrate the clear and convincing evidence needed to overcome the validity of the process server's affidavit. Accordingly, the judgment of the trial court in the second foreclosure action was confirmed.
In conclusion, the Appellate Court reversed the denial of defendant's petitions and vacated the judgments against him in the first and third foreclosure action and remanded back to the trial court. However, the Appellate Court affirmed the judgment denying defendant's petition in the second foreclosure action.
Ralph T. Wutscher
Maurice Wutscher LLP
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