Citimortgage, Inc. v. Cotton
977 N.E.2d 255
Ill. App. Ct.2012Background
- Ernest Cotton challenged foreclosure order after service by publication; district reversed and remanded for evidentiary hearing.
- Citimortgage foreclosed on Ernest’s mortgage on 8429 S. Paulina St., Chicago; Amicus then Firefly were appointed as special process servers.
- 19 service attempts were made at two residences; Eskras' affidavits contained inconsistencies with Ernest’s affidavits and photos.
- Plaintiff sought publication after claiming due and diligent inquiries could not locate Ernest; publication occurred in September 2009.
- Ernest filed motions to vacate, quash service by publication, and for an evidentiary hearing; circuit court denied relief.
- Court reversed judgment and remanded for evidentiary hearing to determine whether due and diligent inquiries were conducted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of service by publication based on process-server appointment | Citimortgage contends Eskras were properly authorized | Ernest argues improper appointment or transition from Amicus to Firefly if not valid | Remand for evidentiary hearing; court assumed proper appointment but unresolved facts warrant/trial need |
| Whether due and diligent inquiry supported publication | Citimortgage conducted 19 attempts; due inquiry supported | Ernest shows conflicts and gaps; issues require hearing | Remand for evidentiary hearing to resolve factual disputes about due/diligent inquiry |
| Effect of discrepancies between Eskras’ affidavits and Ernest’s affidavit | Affidavits sufficient to grant publication | Inconsistencies undermine truthfulness; hearing required | Evidentiary hearing warranted to assess affidavits and locate Ernest |
Key Cases Cited
- In re Marriage of Wilson, 150 Ill. App. 3d 885 (1986) (jurisdictional challenge can void judgment if personal jurisdiction lacking)
- Kohl v. Kohl, 334 Ill. App. 3d 867 (2002) (personal jurisdiction review de novo)
- White v. Ratcliffe, 285 Ill. App. 3d 758 (1996) (preserved jurisdiction objections allow consideration of related arguments)
- Horton v. Bell Federal Savings & Loan Ass’n, 59 Ill. App. 3d 923 (1978) (due inquiry required; mere lack of knowledge insufficient)
- Nasolo v. Equity Residential Properties Mgmt. Corp., 364 Ill. App. 3d 26 (2006) (significant issues arise when due inquiry is doubtful)
- Brown v. First Federal Savings & Loan Ass’n, 74 Ill. App. 3d 901 (1979) (due inquiry must show substantial investigation beyond mere residence)
- Leakas v. City of Chicago, 6 Ill. App. 3d 20 (1972) (well-directed efforts required; failure voids publication service)
- Volpert v. Nasolo, 227 Ill. App. 3d 448 (1992) (well-directed service; addresses not extended to employment absent evidence)