Deutsche Bank National Trust Company v. Brewer
2012 IL App (1st) 111213
| Ill. App. Ct. | 2012Background
- Mortgage foreclosure in Cook County; service by publication used due to unknown address; defendant Brewer did not respond, resulting in default judgment and sale approval; Deutsche Bank sought to quash service and contest jurisdiction; affidavits for due inquiry lacked personal knowledge by affiants; remand requested to address jurisdiction and proper service requirements under Rule 7.3 and section 2-206; court reverses and remands for evidentiary hearing on steps actually taken to find and serve Brewer.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §15-1509 bars Brewer challenge to foreclosure judgment | Deutsche Bank argues §15-1509 bars challenges even without JP | Brewer contends §15-1509 only applies to valid judgments with JP | §15-1509 does not bar jurisdiction challenge; applies to valid judgments only. |
| Whether service by publication complied with due-inquiry requirements | Bank asserts affidavits show due inquiry and publication proper | Brewer argues affidavits lack personal knowledge and fail Rule 7.3 | Affidavits do not meet Rule 7.3 personal-knowledge requirement; service invalid. |
| Whether trial court lacked personal jurisdiction over Brewer | Judgment valid despite service by publication under §15-1509 | Erroneous service means void judgment; lack of JP cannot be cured | Trial court lacked personal jurisdiction; judgments void. |
| Whether Deutsche Bank complied with Rule 7.3 and 2-206 for publication service | Affidavits relied on others’ statements; sworn attestations lacking | Rule 7.3 requirements not satisfied; service by publication improper. | |
| Whether remand for evidentiary hearing on jurisdiction is appropriate | Remand to determine actual steps taken by those who attempted service | No explicit contrary position stated | Remand for evidentiary hearing on service adequacy and jurisdiction. |
Key Cases Cited
- Village of Algonquin v. Lowe, 2011 IL App (2d) 100603 (Ill. App. 2d 2011) (void judgments when JP lacking)
- Bell Federal Sav. & Loan Ass’n v. Horton, 59 Ill. App. 3d 923 (Ill. App. 3d 1978) (jurisdiction and service considerations in foreclosure)
- Bank of New York v. Unknown Heirs & Legatees, 369 Ill. App. 3d 472 (Ill. App. 2006) (scope of publication service and due inquiry)
- Phalen v. Groeteke, 293 Ill. App. 3d 469 (Ill. App. 1997) (local rules and Rule 7.3 compatibility with statutes)
- Thill (State Bank of Lake Zurich v. Thill), 113 Ill. 2d 294 (Ill. 1986) (affidavits insufficient for jurisdiction but can bear on actual service)