2020 IL App (1st) 191468
Ill. App. Ct.2020Background:
- Deephaven Mortgage filed a foreclosure complaint June 15, 2018 against Hosanna Jones (mortgage listed her as "Hosanna Jones"); the note was signed by Kerry Jones.
- Process servers attempted personal service at six addresses (15 attempts total, including 10 visits to a Michigan Avenue office) and then filed a Cook County Rule 7.3 affidavit describing a Clear‑Thomson‑Reuters database search showing no other viable addresses.
- Service by publication was issued (Chicago Daily Law Bulletin notices in July–August 2018); no appearance or answer was filed; default judgment, foreclosure decree, judicial sale, and confirmation followed.
- After sale confirmation, defendant (later using the name Hosanna Mahaley) moved to quash service by publication, asserting the process servers could have found her at a Drexel Boulevard address (supported by driver’s licenses, utility bills, voter records, divorce/quitclaim documents and loan‑mod paperwork).
- The circuit court denied the motion (finding many defense exhibits not properly sworn/certified under Ill. S. Ct. R. 191(a), but even considering them concluded plaintiff showed due diligence); defendant appealed pro se and the appellate court affirmed.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff made the required due diligence/due inquiry to permit service by publication under 735 ILCS 5/2‑206 and Cook County R.7.3 | Process servers made 15 attempts at six locations, executed Rule 7.3 affidavit, and searched a private database; publication proper | Process servers failed to find Drexel Blvd address and did not search names/records under Mahaley; thus service by publication was improper | Affirmed: plaintiff satisfied diligence/inquiry; attempts were not "casual, routine, or spiritless," so publication was proper |
| Whether defendant’s documentary evidence was admissible and sufficient to raise a significant factual issue under Rule 191(a) | Defendant’s exhibits were largely unsworn/unauthenticated and thus inadmissible under Rule 191(a) | Exhibits (driver’s licenses, utility bills, voter records, divorce/quitclaim) show she could have been found at Drexel Blvd | Court found many exhibits lacked proper Rule 191(a) authentication; even if considered they did not create a significant issue undermining the process servers’ affidavits |
| Whether the trial court erred by denying an evidentiary hearing on the motion to quash | No hearing necessary because defendant failed to present a significant issue of truthfulness in plaintiff’s affidavits | Requested hearing to test veracity of process servers and admit evidence | Denied: no significant factual dispute shown that would trigger an evidentiary hearing |
| Whether materials appended to the appellate supplemental record (Clear‑Thomson‑Reuters report; occupancy certificate) could be considered | Materials not part of circuit court record and thus not properly before appellate court | Defendant relied on those documents to challenge diligence | Appellate court struck the Clear‑Thomson‑Reuters report from the record and treated arguments based on other items not shown to be in the trial record as forfeited |
Key Cases Cited
- BAC Home Loans Servicing, LP v. Mitchell, 2014 IL 116311 (discusses requirement of personal jurisdiction and validity of judgments)
- Bank of New York Mellon v. Karbowski, 2014 IL App (1st) 130112 (service by publication and due process concerns)
- Bank of New York v. Unknown Heirs & Legatees, 369 Ill. App. 3d 472 (statutory prerequisites for service by publication require honest, well‑directed effort)
- Citimortgage, Inc. v. Cotton, 2012 IL App (1st) 102438 (defendant may challenge publication affidavit by affidavit showing he could have been found; evidentiary hearing standard)
- JPMorgan Chase Bank, N.A. v. Ivanov, 2014 IL App (1st) 133553 (what constitutes a diligent search; no fixed number of attempts required)
- Robidoux v. Oliphant, 201 Ill. 2d 324 (Rule 191(a) requires sworn or certified copies of documents attached to affidavits)
- First Federal Sav. & Loan Ass’n of Chicago v. Brown, 74 Ill. App. 3d 901 (evidentiary hearing required when a significant issue as to affidavit truthfulness is raised)