Publication Service in Foreclosure

In litigation, “personal jurisdiction” is required against all named defendants. The crux of this power flows from the party filing an action (the plaintiff) properly making an individual (the defendant) aware of the litigation filed. Stated another way, if a plaintiff fails to properly make a defendant aware of an action, then personal jurisdiction is lacking, and any orders the court makes are subject to being canceled at any time—even long after litigation is thought to have been concluded. In mortgage foreclosure actions, this can cause additional delays and costs to an often lengthy and expensive process.

Publication service, which involves notifying a defendant via a local newspaper, requires an affidavit evidencing that a diligent inquiry has occurred to ascertain the defendant’s location. Additionally, in Cook County mortgage foreclosure actions, affidavits must be sworn by the individual who made the “due inquiry,” setting forth “with particularity” an “honest and well-directed effort” to ascertain the location of the defendant.

In early 2018, the Fourth Division of the First District Appellate Court held that only one attempt at personal service was sufficient, given the circumstances of the case. In Neighborhood Lending Services, Inc. v. Griffin, 2018 IL App (1st) 162855, the defendant’s wife stated that the defendant didn’t live at the residence and refused to provide any further information.  

The defendant, appearing nearly a year later, alleged that Neighborhood Lending failed to exercise due inquiry or due diligence. The Court disagreed.

“This is a case in which the defendant’s spouse—a resident of the single-family home at issue—directly informed the process server that defendant did not reside at that address and no alternate address could be found… There is no reason to believe that subsequent visits would have yielded any different results...” Id. ¶ 21-22.

Towards the end of 2018, the First Division of the First District Appellate Court encountered a somewhat similar fact pattern, but with a very different result. In Deutsche Bank Nat’l Trust Co. v. Burrell, 2018 (Ill. App. Unpub. LEXIS 1563), the plaintiff filed an affidavit stating that a process server attempted to serve the defendant a total of 29 times at the subject property address, all without success.  However, the affidavit also evidenced searches conducted which resulted in the discovery of additional potential addresses for the defendant, one of which was in Merrillville, Indiana. In Merrillville, the process server spoke to an unknown woman getting into her car.  When asked if the defendant was at home, the woman replied that she didn’t know him.

The defendant filed a motion to quash service several months after the foreclosure sale, stating that he’d lived at the Merrillville location for approximately 14 years and arguing that Deutsche Bank failed to properly serve him. The Court agreed.

The Court ruled that the plaintiff failed to evidence an “honest and well directed effort” to ascertain the defendant’s whereabouts, emphasizing the fact that the plaintiff only made one attempt at the Merrillville location, which “consisted only of a conversation with some unnamed person in front of the house who said that she did not know [the defendant.] This was not ‘due inquiry’.”  

It seems safe to say that the more precise and particular the details of a process server’s affidavit is, the stronger a plaintiff’s publication service may be. At a minimum, the name and relationship to a party should always be obtained if a witness’s statement is meant to be relied upon.