2012 IL App (1st) 111187
Ill. App. Ct.2012Background
- OneWest Bank foreclosed on the Markowiczs’ mortgaged property after expired payments and a default.
- Plaintiff sought appointment of a standing special process server under a General Administrative Order (GAO) issued in 2007.
- GAO authorized quarterly standing orders; Codilis & Associates obtained a standing order, designating ProVest LLC to serve as the process server.
- Plaintiff attempted service 14 times at the mortgaged property; service by publication was pursued after attempts to locate defendants failed.
- Default judgment and a sale were entered; plaintiff bid at the judicial sale in December 2010.
- Defendants moved to quash service in January 2011, arguing GAO was invalid and the enabling order and service by publication were improper; the trial court denied the motion and the appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of GAO authority for standing orders | GAO valid under Rule 21(c) delegated to presiding judges; Dzis supports GAO validity. | GAO void due to lack of authority by presiding chancery judge and conflicts with Rules and statutes. | GAO valid; presiding judge had authority to issue and enforce it. |
| Compliance of the standing order with GAO formalities | Order substantially complied; strict wording not required to be identical to GAO. | Codilis order used 'period' instead of 'quarter' and thus failed GAO requirements. | Standing order satisfied GAO requirements; finite three-month period; valid. |
| Conflict with 2-202 and 2-201 | GAO does not conflict; it provides an alternate method for appointing a private process server under 2-202. | GAO usurps statutory service procedures and undermines 2-201/2-202. | GAO does not conflict; it is a permissible procedural rule governing appointment of a special process server. |
| Service by publication | Affidavit under 2-206(a) supported service by publication; signature suffices. | Affidavit signature is illegible and not properly identifying the signatory. | Affidavit complies with 2-206(a); service by publication properly authorized. |
Key Cases Cited
- Ligon v. Williams, 264 Ill.App.3d 701 (1994) (limits on void orders entered without justiciable questions)
- Owens v. Ranstead, 22 Ill. 161 (1859) (publicity and record-keeping for court rules; rules must be on record)
- Schorsch v. Fireside Chrysler-Plymouth, Mazda, Inc., 172 Ill.App.3d 993 (1988) (validity of process/service procedures; statutory requirements apply)
- Joseph v. People, 113 Ill.2d 36 (1986) (Rule 21(c) authority to issue general orders; delegation to chief judges)
- Premier Electrical Construction Co. v. American National Bank of Chicago, 276 Ill.App.3d 816 (1995) (strict compliance with court rules; liberal construction when no harm)
- Levine v. Pascal, 94 Ill.App.2d 43 (1968) (liberal interpretation of rules to avoid hardship)
- Roth v. Illinois Farmers Insurance Co., 202 Ill.2d 490 (2002) (affidavits and oath procedures in service of process)
- Lombardi, Inc. v. Smithfield, 11 A.3d 1180 (Del. 1989) (n/a)