JPMorgan Chase Bank National Ass'n v. Ivanov
19 N.E.3d 1039
Ill. App. Ct.2014Background
- In 2007 Ivanov borrowed $273,000 secured by a Des Plaines condominium; Chase (later JPMorgan Chase) filed foreclosure in May 2010.
- Plaintiff sought service by publication after process servers made three attempts at the unit over Memorial Day weekend 2010 and filed affidavits to allow publication.
- The bank published notice and obtained a default judgment in June 2011; notice of sale was mailed to the unit in August 2011 and the unit sold at auction in March 2012.
- Ivanov filed motions to quash service by publication and to reconsider, submitting affidavits stating he continuously resided at the unit and that the process-server attempts were limited in time and on a holiday weekend; the trial court denied relief and later confirmed the sale.
- On appeal the First District reversed, holding the statutory prerequisites for service by publication were not satisfied and that the trial court improperly disregarded Ivanov’s affidavits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether service by publication satisfied 735 ILCS 5/2-206 and Cook Co. Cir. Ct. R. 7.3 | The affidavits and process-server visits plus database searches satisfied due inquiry and justified publication | Service attempts were casual (three visits in same short timeframe over a holiday weekend); affidavits were inadequate to show defendant could not be found | Service by publication was not justified; plaintiff failed to show a well-directed, diligent inquiry and court lacked personal jurisdiction |
| Whether defendant’s affidavits were "self-serving" and insufficient to challenge publication | Plaintiff argued defendant bore burden to show he could have been found and his affidavits were self-serving and unpersuasive | Defendant contended his sworn statements that he continuously lived at the unit rebutted plaintiff’s showing and complied with Rule 191 | Court held defendant’s affidavits were competent, nonconclusory, and sufficient to show he could have been found; trial court erred in disregarding them |
| Whether the appeal properly raised denial of motion to quash despite notice specifying the sale date | Plaintiff argued the notice of appeal limited review to the sale approval date | Defendant noted the notice sought reversal of the order denying the motion to quash and reversing the sale | Court found the notice of appeal adequate to confer jurisdiction to review the denial of the motion to quash (it was a necessary step to the appealed judgment) |
Key Cases Cited
- BAC Home Loans Servicing, LP v. Mitchell, 2014 IL 116311 (establishing de novo review for personal-jurisdiction questions)
- In re Dar. C., 2011 IL 111083 (orders entered without personal jurisdiction are void and may be attacked at any time)
- Bank of New York v. Unknown Heirs & Legatees, 369 Ill. App. 3d 472 (due-inquiry requirement for service by publication requires an honest, well-directed effort)
- Burtell v. First Charter Service Corp., 76 Ill. 2d 427 (noting appellate jurisdiction where an unspecified earlier ruling is a necessary step to the judgment appealed)
- Prudential Property & Casualty Ins. Co. v. Dickerson, 202 Ill. App. 3d 180 (an unrebutted affidavit denying residence can properly support quashing substituted service)