Neighborhood Lending Services, Inc. v. Griffin
104 N.E.3d 497
Ill. App. Ct.2018Background
- Neighborhood Lending filed foreclosure against Kathy Griffin and Mark P. Thomas (Thomas named as a potential interest-holder) based on a mortgage default for property on S. Racine Ave., Chicago.
- Special process server attempted service at the Racine property on Aug 9, 2014; Griffin told the server Thomas did not live there and refused further information.
- Plaintiff filed affidavits asserting the process server’s attempt and that subsequent "due inquiry" searches (credit, DMV, voter, social media, death index, etc.) yielded no alternate address; requested service by publication and mailed notice to the Racine address; notice was published in the Chicago Daily Law Bulletin.
- Default judgment and decree of foreclosure and sale were entered; sale occurred in July 2016 and plaintiff sought possession.
- Thomas appeared over a year later and moved to quash service (or alternatively to vacate default), arguing inadequate due inquiry/diligence and that publication was premature; trial court denied the motion to quash and approved the sale. Thomas appealed only the denial of the motion to quash.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether service by publication complied with 735 ILCS 5/2-206 (due inquiry/diligence) | Plaintiff relied on the process server affidavit stating Griffin said Thomas did not live there and on detailed follow-up searches showing no other address; thus publication was justified. | Thomas argued plaintiff made only one personal service attempt and moved to publish 23 days after filing—insufficient due inquiry/diligence; affidavits (not in record) allegedly show he lived at the property. | Court affirmed: affidavits and searches showed an honest, well-directed effort; spouse’s statement excused further futile attempts, so publication was proper. |
| Admissibility of the process server’s report of Griffin’s statement | Plaintiff: the server’s recounting of Griffin’s statement explains why service attempts ceased and is admissible for its effect on the listener, not for truth. | Thomas: that statement is hearsay and should not be considered. | Held admissible: not hearsay because offered to show effect on the process server and explain subsequent conduct. |
| Whether an evidentiary hearing was required on the motion to quash | Plaintiff: documentary record established no substantial dispute about the server’s affidavit; no hearing necessary. | Thomas: disputed facts (residence at time of service; timing of affidavits vs. publication) warranted a hearing. | Held: no hearing required—Thomas failed to raise a significant issue about truthfulness of the server’s affidavit; timing argument was forfeited and unsupported. |
| Whether missing affidavits/exhibits in the appellate record alter outcome | Plaintiff: record sufficiently establishes due inquiry and publication compliance. | Thomas: missing affidavits would show he lived at the property and rebut server’s account. | Held: exhibits were not in the record and were not presented on appeal; even if considered, they would not undermine the central question (diligence vs. actual residence). |
Key Cases Cited
- Bank of New York v. Unknown Heirs & Legatees, 369 Ill. App. 3d 472 (2006) (due inquiry/diligence requires honest, well-directed effort; casual efforts insufficient)
- Public Taxi Service, Inc. v. Ayrton, 15 Ill. App. 3d 706 (1973) (service by publication is an extraordinary and often inadequate means of notice)
- People v. Carroll, 322 Ill. App. 3d 221 (2001) (out-of-court statements offered to show effect on listener or explain conduct are not hearsay)