A Wife’s Deceit Allows Single Service Attempt to Satisfy Due Diligence Requirement: Publication Permitted to Give Owner Notice of Foreclosure of Residence, Neighborhood Lending Services, Inc. v. Griffin, 2018 IL App (1st) 162855 (March 15, 2018).
The First District recently agreed that a homeowner’s request to vacate a foreclosure judgment was properly denied. The homeowner argued that the bank did not duly attempt to find and serve him personally before publishing notice to move the foreclosure forward.
The lender attempted service only once at the residence of the owner. The process server was told when attempting service (by the owner’s wife) that the defendant did not live at the home. She also refused to provide any further information about the whereabouts of the owner. The lender’s process server attempted to find a different address by searching public records to no avail. Almost certainly these efforts were wasted, as the owner did in fact live at the residence where service was attempted. This fact was confirmed in the owner’s affidavit, filed in connection with his attempt to defeat the default judgment of foreclosure.
In Illinois, publication is the least satisfactory method of giving notice. Courts understand that publishing notice is often no notice at all. For that reason, a Plaintiff must make an honest and well-directed effort to find a defendant before service by publication will allow a court to act against the rights of a defendant. So, the central issue is what constitutes an honest effort, and what is an impermissibly casual, routine, or spiritless effort?
The Owner referenced a prior case where a lender published notice after speaking to a neighbor. The neighbor commented that “he had heard” that the person being served vacated the premises. This was held to be a rather spiritless effort in JPMorgan Chase Bank, National Ass’n v. Ivanov, 2014 IL App (1st) 133553. The Ivanov court held that the neighbor’s comment was not sufficient to allow service by publication. This comparison was summarily rejected by the Griffin court. The statement from the owner’s wife living at the residence was given more weight, and in fact served to satisfy entirely the duty of the bank to further investigate that address as a valid place of service.
The Owner also argued that the statement of his Wife in the process server’s affidavit was hearsay, and that he was entitled to an evidentiary hearing on his motion to vacate the judgment. This argument was also rejected. The Court held that because the relevance of the wife’s statement was its effect on the plaintiff, it was not hearsay.
It does not appear from the opinion that Wife filed an affidavit expressly denying her statement to the process server. The owner acknowledged that he lived at that address where service of process was attempted. Given the facially uncontroverted statement from wife, the Court held that the bank’s efforts were indeed a spirited effort. Publication was held to be sufficient to serve the owner, and the judgment of foreclosure was upheld.
Given this recent holding, plaintiffs and process servers would be wise to communicate similar statements from residents in their affidavits of service.
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