U.S. Bank v. Dzis
2011 IL App (1st) 102812
Ill. App. Ct.2011Background
- U.S. Bank loaned Dzis $375,250 secured by a Chicago mortgage; it sued to foreclose on September 10, 2009 and sought appointment of a special process server.
- Two weeks before filing, the court had entered General Administrative Order (GAO) authorizing four private detective agencies to serve as special process servers in Codilis & Associates mortgage cases between August 25 and November 30, 2009.
- A listed detective agency attempted to serve Dzis but failed; service by publication was used in the interim, and publication notices ran October 9–23, 2009.
- The trial court entered default and a foreclosure judgment; a public auction occurred on April 29, 2010, resulting in sale to U.S. Bank.
- Dzis moved to quash service, arguing the GAO violated the Illinois Constitution and statutes; the trial court denied the motion and the sale was approved.
- On appeal, Dzis challenged the GAO’s validity, asserting it unlawfully privatized service and violated due process and equal protection; the appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Dzis has standing to challenge the GAO. | Dzis argues GAO invalid, deprives due process. | GAO exceeds authority and violates rights. | Dzis has standing to challenge GAO. |
| Whether the presiding judge had authority to enter GAO under Rule 21(c). | GAO lacks constitutional/delegated authority. | Rule 21(c) authorizes general orders by presiding judge. | Presiding judge had authority to enter GAO. |
| Whether GAO conflicts with 735 ILCS 5/2-202 (service by private detective agencies). | GAO conflicts with statute mandating sheriff first unless disqualified. | GAO harmonizes with statute; courts may adopt procedural rules that govern service. | GAO does not conflict with §2-202; court may adopt procedural rules. |
| Whether GAO violates procedural due process. | Standing order affects liberty/property interests by procedural change. | No cognizable property liberty interest in method of service; no due process violation. | GAO does not violate procedural due process. |
| Whether GAO violates equal protection. | Classifies defendants by mortgage default status; burdens homeowners unfairly. | Classification rationally related to efficiency and administration; not suspect. | GAO rationally related to a legitimate objective; does not violate equal protection. |
Key Cases Cited
- Greer v. Illinois Housing Development Authority, 122 Ill. 2d 462 (1988) (standing to challenge government action)
- O’Connell v. St. Francis Hospital, 112 Ill. 2d 273 (1986) (courts reconcile rules and statutes; rules prevail when in conflict)
- Pronger (In re Pronger), 118 Ill. 2d 512 (1987) (service of process is a matter of procedure)
- Danoff v. Larson, 368 Ill. 519 (1938) (due process limits on method of service)
- Henderson v. United States, 517 U.S. 654 (1996) (nonjurisdictional matters of procedure; rules control the process)
- Hattery, 183 Ill. App. 3d 800 (1989) (procedure for service; due process considerations)
- People v. Cox, 82 Ill. 2d 268 (1980) (rules governing procedural matters)
- Blair v. Mackoff, 284 Ill. App. 3d 836 (1996) (presiding judge authority to promulgate general orders)
- Wenger v. Finley, 185 Ill. App. 3d 907 (1989) (rational basis for classification)