Bank of New York Mellon v. Karbowski
12 N.E.3d 792
Ill. App. Ct.2014Background
- Bank filed a mortgage foreclosure complaint against Karbowski for a condominium in Chicago and made numerous personal-service attempts at multiple addresses between July and October 2009.
- Bank filed an affidavit for service by publication that, per the notary seal, was notarized on September 14, 2009 but was not filed until November 3, 2009; the affidavit also recited attempts to locate/serve Karbowski as late as October 28 and attached a process-server affidavit showing October attempts.
- The trial court granted leave to serve by publication; notice was published and mailed to the property address (returned undeliverable); Bank obtained default judgment and entered a judgment of foreclosure and sale.
- The sale was postponed several times and set for October 2011; before the sale Karbowski appeared and moved to quash service by publication, arguing the affidavit was defective on its face (wrong last-known address) and stale (50-day delay between notarization and filing).
- The trial court denied the motion to quash and later confirmed the sale; Karbowski appealed.
Issues
| Issue | Bank's Argument | Karbowski's Argument | Held |
|---|---|---|---|
| Whether the affidavit supporting service by publication complied with 735 ILCS 5/2-206 | The affidavit’s substance (including October efforts) shows due diligence and any perceived date error is a scrivener’s mistake; delay was not material | The affidavit was notarized Sept 14 but filed Nov 3 (50-day gap), so it was stale and failed strict statutory compliance | Court: affidavit’s notarization date conflicted with its contents; 50-day unexplained delay (i.e., failure to strictly comply) required reversal |
| Whether listing the property address as last-known address invalidated publication | Bank: note/mortgage designate property as notice address and Bank had no notice of a substitute address | Karbowski: Bank knew he didn’t live at the property and had other addresses (Northfield) shown in credit/SS records | Court: Karbowski failed to provide competent evidence to rebut Bank’s representation; incorrect address alone did not require reversal |
| Whether Karbowski needed to file an affidavit supporting his motion to quash | Bank: defendant must file an affidavit contesting due diligence to challenge publication | Karbowski: he challenged facial defects in Bank’s affidavit, not Bank’s diligence, so no affidavit needed | Court: Because the challenge attacked defects on the face of the Bank’s filing (timeliness and content), Karbowski was not required to file his own affidavit |
Key Cases Cited
- Illinois Valley Bank v. Newman, 351 Ill. 380 (discussing strict compliance required for constructive service by publication)
- Campbell v. McCahan, 41 Ill. 45 (affidavit filed long after execution can be unreasonable; timing judged by circumstances)
- Lakin v. Wood, 343 Ill. App. 372 (affidavit timing can defeat statutory compliance)
- Royal Extrusions Ltd. v. Continental Window & Glass Corp., 349 Ill. App. 3d 642 (de novo review appropriate where no evidentiary hearing on jurisdictional issues)
- State Bank of Lake Zurich v. Thill, 113 Ill. 2d 294 (foreclosure judgment entered without proper service is void)
- In re Dar. C., 2011 IL 111083 (service protects due process and vests personal jurisdiction)
- City of Chicago v. Leakas, 6 Ill. App. 3d 20 (due inquiry/due diligence standard for locating defendants)
- Equity Residential Properties Mgmt. Corp. v. Nasolo, 364 Ill. App. 3d 26 (defective service deprives court of personal jurisdiction)