Bankunited v. Velcich , 2015 IL App (1st) 132070 ( 2015 )

Illinois Official Reports
Appellate Court
BankUnited v. Velcich, 2015 IL App (1st) 132070Appellate Court BANKUNITED, Plaintiff-Appellee, v. DINO S. VELCICH,
Caption Defendant-Appellant (Maria Nascimento, Unknown Owners, and
Nonrecord Claimants, Defendants).
District & No. First District, First Division
Docket No. 1-13-2070
Filed January 12, 2015
Held The denial of defendant’s emergency motion to quash service of
(Note: This syllabus process in the action to foreclose his mortgage was affirmed, since the
constitutes no part of the affidavits used by the process server to serve defendant were based on
opinion of the court but the affiant’s personal knowledge and set out the specific actions taken
has been prepared by the to determine defendant’s whereabouts for purposes of justifying
Reporter of Decisions service by publication pursuant to section 2-205(a) of the Code of
for the convenience of Civil Procedure and a local circuit court rule and plaintiff did not
the reader.) improperly fail to state defendant’s address in the affidavit for service
by publication, since there was no evidence plaintiff knew where
defendant resided.
Decision Under Appeal from the Circuit Court of Cook County, No. 11-CH-28298; the
Review Hon. Darryl B. Simko, Judge, presiding.
Judgment Affirmed.
Counsel on IND LAW LLC, of Chicago (Clinton J. Ind, of counsel), for appellant.
Appeal
Kluever & Platt, LLC, of Chicago (David C. Kluever and M. Reas
Bowman, of counsel), for appellee.
Panel JUSTICE HARRIS delivered the judgment of the court, with opinion.
Presiding Justice Delort and Justice Connors concurred in the
judgment and opinion.
OPINION
¶1 Plaintiff, BankUnited, brought this mortgage foreclosure action against defendant, Dino
Velcich, who, along with codefendant Maria Nascimento,1 executed a promissory note with
plaintiff secured by a mortgage on property commonly known as 2707 West Medill Avenue,
in Chicago, Illinois. The circuit court entered an order of default and a judgment of
foreclosure and sale. After the sale of the property, the circuit court entered an order
confirming the sale. Within 30 days of the entry of the order of the confirmation of the sale,
defendant appeared and filed an emergency motion to quash service, which the circuit court
denied.
¶2 Defendant raises two issues for our review: (1) whether the affidavits plaintiff relied upon
to effectuate service of process upon him were based on the affiant’s personal knowledge and
sufficiently set forth the particular actions taken to serve him to satisfy section 2-206 of the
Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-206 (West 2010)) and local rule 7.3
(Cook Co. Cir. Ct. R. 7.3 (Oct. 1, 1996)); and (2) whether plaintiff’s affidavit of service by
publication speaks the truth and complies with section 2-206 of the Code (735 ILCS 5/2-206
(West 2010))2 where plaintiff stated defendant’s residence was unknown despite a diligent
inquiry. We hold plaintiff’s affidavits were based on the affiant’s personal knowledge and set
forth the specific actions taken to determine defendant’s whereabouts to justify service by
publication in accordance with section 2-206(a) of the Code and local rule 7.3. 735 ILCS
5/2-206(a) (West 2010); Cook Co. Cir. Ct. R. 7.3 (Oct. 1, 1996). We also hold that plaintiff
did not improperly fail to state defendant’s residence in its affidavit for service by publication
because there is no evidence in the record that plaintiff knew where defendant resided.
¶3 JURISDICTION
¶4 On May 24, 2013, the circuit court denied defendant’s motion to quash service. On
June 19, 2013, defendant timely appealed. Accordingly, this court has jurisdiction pursuant to
Illinois Supreme Court Rules 301 and 303 governing appeals from final judgments entered
below. Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); R. 303 (eff. May 30, 2008).
Nascimento did not contest plaintiff’s suit and is not a party to this appeal.
1
2
Under this second issue, defendant does not allege plaintiff violated local rule 7.3. Cook Co. Cir.
Ct. R. 7.3 (Oct. 1, 1996).
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¶5 BACKGROUND
¶6 Defendant and codefendant Maria Nascimento executed a promissory note with plaintiff
in the amount of $535,500. The note was secured by a mortgage on the property located at
the common address of 2707 West Medill Avenue, in Chicago, Illinois. On August 10, 2011,
plaintiff filed a complaint to foreclose the mortgage. Plaintiff hired a private detective
agency, Firefly Legal, Inc., to locate and serve defendant.
¶7 The record contains multiple affidavits from three Firefly Legal process servers
describing their attempts to serve defendant. The process servers first attempted to serve
defendant in August of 2011 at five different addresses, all located in Chicago. All of the
affidavits are signed by the respective affiant and notarized. They also all state that “after due
search, careful inquiry and diligent attempts *** I have been unable to effect process” before
stating a reason why service was unsuccessful.
¶8 In an affidavit notarized on August 26, 2011, process server Beth McMaster attested that
on August 8, 2011, at 8:10 p.m., she attempted service upon defendant at 4218 West
Thorndale. As a reason for nonservice, McMaster stated that she “spoke to the defendant’s
niece who stated that the defendant will be out of town for the next month or two and that she
was house-sitting while her aunt was away.” The niece gave McMaster a phone number for
defendant. The registration for the phone indicated defendant’s address as 5701 Patterson
Avenue. In a different yet similar affidavit, McMaster attested that she attempted to serve
codefendant Maria Nascimento at the same address at the same time and similarly stated that
she had spoken to defendant’s niece, who told her that she was house-sitting for her aunt.
¶9 The record contains three affidavits from process server Steven Stosur regarding his
attempts to serve defendant in August of 2011. In an affidavit notarized on August 19, 2011,
Stosur attested that he attempted to serve defendant at 4065 North Elston Avenue at 1:58
p.m. on August 14, 2011, and at 11:17 a.m. on August 16, 2011. Stosur attested that the
property was a law office and that an administrative assistant identified defendant as an
owner of the property who did not live there. The administrative assistant indicated to Stosur
that defendant ran a business at the address, but that it had been shut down in 2009.
¶ 10 In an affidavit notarized on August 15, 2011, Stosur attested that he attempted to serve
defendant at 2707 West Medill Avenue at 3:55 p.m. on August 14, 2011. Stosur stated that he
was unable to serve defendant because a resident “said the defendant is the landlord who
does not live here and comes by to pick up the rent. She does not know where defendant
lives.” Defendant was not listed on the mailbox or doorbells.
¶ 11 Stosur attested in an affidavit notarized on August 15, 2011, that he attempted service on
defendant on August 14, 2011, at 7:09 p.m. at 5701 West Patterson Avenue. Stosur stated
that he spoke to a resident of the second floor of the two-flat building. The resident had not
heard of defendant. The first floor of the building was vacant. Defendant’s name was not
listed on the mailbox or doorbell.
¶ 12 Process server Nicholas Baker attested in an affidavit notarized on August 24, 2011, that
he attempted service on defendant on August 23, 2011 at 1 p.m. at 1515 West Chestnut
Street. The current resident informed Baker that defendant was “unknown at this address.”
¶ 13 Due to plaintiff’s inability to serve defendant in August of 2011, plaintiff sought and
obtained a first alias mortgage foreclosure summons on May 10, 2012. Plaintiff filed two
affidavits from process server Steven Stosur showing his attempts at service on defendant in
May and June of 2012 at two Chicago addresses: 2707 West Medill Avenue and 4218 West
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Thorndale Avenue. In an affidavit notarized on May 30, 2012, Stosur attested that he
attempted service upon defendant at 7:40 p.m. at 2707 West Medill Avenue. Stosur attested
that he again spoke to a “Mrs. Williamson,” who informed him that defendant does not live
at the property but is the landlord and visits the property to collect rent.
¶ 14 In an affidavit notarized on June 13, 2012, Stosur attested that he attempted service upon
defendant seven times between June 2, 2012, and June 8, 2012, at 4218 West Thorndale
Avenue. Specifically, Stosur attested he attempted service on the following dates and times:
4:48 p.m. on June 2; 2:01 p.m. on June 4; 10:21 a.m. on June 5; and 9:46 p.m. on June 6.
Stosur stated that he made three additional attempts, at 4:27 p.m., 4:28 p.m., and 6:50 p.m.
respectively, on June 8, 2012. As a reason for nonservice, Stosur attested:
“Attempts were made at this address; however no contact could be made with the
defendant at this address. There is no evidence that the property is vacant. This is a
townhouse. There are no names on the doorbell or mailbox. I rang the bell and
knocked on the door. I cannot see inside the property. There is no access to the rear of
the property.”
¶ 15 On July 16, 2012, plaintiff filed an affidavit for service by publication. In the affidavit,
counsel stated defendant could not be served because he could not be found upon diligent
inquiry. Counsel attached an affidavit from Michelle Bibeau outlining the steps she took to
find defendant utilizing various databases and searches. Bibeau stated defendant’s last known
address was 2707 West Medill Avenue in Chicago. Bibeau attested that she “made due and
diligent search and inquiry to discover the name and/or alternative current residence of
[defendant] searching public and non-public databases.” Bibeau stated that despite her
“diligent search and inquiry,” she was unable to determine defendant’s current whereabouts
or his current residence. She outlined the various avenues she took in her attempts to locate
defendant as follows. An “inquiry of credit information,” which included defendant’s social
security number, revealed an address of 2707 West Medill Avenue, in Chicago. The
following 10 searches, however, were unable to provide a residence or alternative address for
defendant: directory assistance; driver’s license; motor vehicle; voter registration;
Department of State, professional license; “Nationwide Masterfile Death Search”; federal,
state, and county departments of corrections; and property tax records. Accordingly, notice to
defendant by publication occurred on July 18, 25, and August 1, 2012, in the Chicago Daily
Law Bulletin.
¶ 16 On August 23, 2012, plaintiff filed a motion for default judgment of foreclosure and sale.
On September 17, 2012, the circuit court granted plaintiff’s motion, and entered a judgment
of foreclosure and sale and an order of default.
¶ 17 After the sale of the property, plaintiff filed a motion for order approving the report of
sale and distribution; confirmation of the sale; order for possession; and an in rem deficiency
judgment on January 31, 2013. On February 28, 2013, the circuit court granted the motion
and entered an order approving the report of sale and distribution, confirming the sale, and an
order of possession and an in rem deficiency judgment.
¶ 18 On March 28, 2013, defendant filed an appearance and emergency motion to quash
service. Relevant here, defendant argued that plaintiff’s affidavits of service were improper
and did not support service by publication because they were made in the passive voice, did
not identify the person who attempted service upon defendant, and did not set forth with
particularity the actions plaintiff took to serve him. Defendant also questioned the truth of the
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affidavits based on his own affidavits that he attached to his motion. Defendant, in his
affidavit, attested that during the time of service he lived at 4218 West Thorndale and worked
at 4065 North Elston. He alleged his name and his wife’s name were listed on the mailbox,
and provided a picture of his mailbox. Defendant further attested that upon due inquiry and
due diligence, plaintiff could have personally served him at either his home on 4218 West
Thorndale or at his work at 4065 North Elston. Defendant also attached an affidavit from
Ana Claudia Neves, who stated that she worked at the office at 4065 North Elston Avenue at
the time of service. She stated it was her responsibility to answer the door and attested that,
“If anyone would have rang the doorbell *** during 2011 or 2012 asking for [defendant], I
would have either retrieved [defendant] from his office or told the person asking for
[defendant] when he would be back in the office.” She denied that she would have stated that
defendant’s business had closed. Accordingly, defendant argued that plaintiff failed to show
due inquiry or due diligence in attempting to serve him.
¶ 19 In response, plaintiff argued that it strictly complied with the rules of service and
submitted affidavits showing that upon diligent inquiry, defendant could not be located.
Plaintiff disputed defendant’s challenge to its affidavits, arguing that its affidavits specified
and named each of the relevant process servers. Plaintiff disputed the relevance of the
photographs defendant attached to its motion, noting that they were dated March 28, 2013,
and not at the time of service.
¶ 20 In reply, defendant reiterated his prior arguments and added that plaintiff’s affidavit for
service did not speak the truth because the affidavits failed to state defendant’s residence as
4218 West Thorndale.
¶ 21 A hearing occurred on May 24, 2013. 3 On that same day, the circuit court denied
defendant’s motion to quash service. The written order stated that “all parties present and the
court being fully advised.” On June 19, 2013, defendant timely appealed.
¶ 22 ANALYSIS
¶ 23 Defendant raises two issues for our review. First, he argues that the affidavits plaintiff
relied upon to effectuate service of process by publication upon him were passive voice
recitations and do not set forth the particular actions taken to serve him. Accordingly, he
argues plaintiff’s affidavits do not support service of process by publication under section
2-206 of the Code (735 ILCS 5/2-206 (West 2010)) or local rule 7.3 (Cook Co. Cir. Ct.
R. 7.3 (Oct. 1, 1996)). Defendant relies solely on this court’s decision in Deutsche Bank
National Trust Co. v. Brewer, 2012 IL App (1st) 111213, in making this argument. Second,
defendant argues that plaintiff’s affidavit for service by publication does not speak the truth
and does not comply with section 2-206 of the Code (735 ILCS 5/2-206 (West 2010))4
because, despite its knowledge that defendant resided at 4218 West Thorndale, plaintiff
failed to state defendant resided there in its affidavit for service by publication. Defendant
did not file a reply brief before this court.
3
As discussed supra, there is no transcript, bystanders report, or agreed statement of facts in the
record for the hearing that occurred on May 24, 2013.
4
Under this second issue, defendant does not allege plaintiff violated local rule 7.3. Cook Co. Cir.
Ct. R. 7.3 (Oct. 1, 1996).
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¶ 24 In response, plaintiff argues it strictly complied with both section 2-206 of the Code (735
ILCS 5/2-206 (West 2010)) and local rule 7.3 (Cook Co. Cir. Ct. R. 7.3 (Oct. 1, 1996)).
Specifically, plaintiff argues that the affidavits it filed in the circuit court show that the
affiants had personal knowledge of the multiple attempts at both serving defendant, and at
trying to locate him through various methods. According to plaintiff, this court’s decision in
Brewer, 2012 IL App (1st) 111213, is distinguishable because the affidavits in this case
identify the affiant and attest to the affiant’s personal knowledge. Regarding defendant’s
argument that it knew of defendant’s residence at 4218 West Thorndale, plaintiff argues that
defendants’ contention is not supported by the record.
¶ 25 Initially, we must make note of the record before us. The record shows that defendant’s
motion to quash service was fully briefed and set for hearing on May 24, 2013. Defendant,
however, failed to include in the record a transcript of the May 24, 2013, proceedings, or a
bystanders report, or agreed statement of facts as required by Illinois Supreme Court
Rule 323 (eff. Dec. 13, 2005). The record only contains a one-page written order denying
defendant’s motion to quash and noting that “all parties present and the court being fully
advised.” As such, nothing further is in the record showing what occurred at the May 24,
2013, hearing. We do not know if the court received evidence on the issue, whether the
parties presented additional evidence, or what factual findings the circuit court made. It is
well established that it is the duty of the appellant to present a sufficiently complete record to
support a claim of error, including presenting a transcript, or bystanders report, or agreed
statement of facts. Midstate Siding & Window Co. v. Rogers, 204 Ill. 2d 314, 319 (2003). “In
the absence of such a record, we will not speculate as to what errors may have occurred
below.” Smolinski v. Vojta, 363 Ill. App. 3d 752, 757 (2006). Any doubts as to the
incompleteness of the record will be resolved against the appellant and we must presume that
the relevant order had a sufficient legal and factual basis. Rogers, 204 Ill. 2d at 319;
Smolinksi, 363 Ill. App. 3d at 757-58 (“In fact, when the record on appeal is incomplete, a
reviewing court should actually ‘indulge in every reasonable presumption favorable to the
judgment from which the appeal is taken, including that the trial court ruled or acted
correctly.’ ” (quoting People v. Majer, 131 Ill. App. 3d 80, 84 (1985))). Furthermore, when,
as in this case, the court is “fully advised,” our presumption of correctness is especially
strong. See Smolinksi, 363 Ill. App. 3d at 758 (noting the circuit court order stated it was
“ ‘fully advised in the premises’ ”). Accordingly, we address defendant’s claims of error
under this limitation.
¶ 26 Additionally, we must also make note of the standard of review we will utilize to review
defendant’s two claims of error. The parties agree that we should review the issues under the
manifest weight of the evidence standard of review. See Brewer, 2012 IL App (1st) 111213,
¶ 17 (“When we review a decision on a motion to quash service of process, we must
determine whether the trial court’s findings of fact are against the manifest weight of the
evidence.”). We disagree with the parties, however, because defendant does not ask us to
review the circuit court’s factual findings. Defendant does not, for example, argue that the
circuit court erred in resolving a factual dispute, or that his pleadings raised a factual dispute,
or ask that the matter should be remanded for an evidentiary hearing. See State Bank of Lake
Zurich v. Thill, 113 Ill. 2d 294, 312 (1986) (noting that issues of fact created by competing
affidavits were to be resolved by the circuit court); Madison Miracle Productions, LLC v.
MGM Distribution Co., 2012 IL App (1st) 112334, ¶ 39 (reviewing factual findings
regarding personal jurisdiction under the manifest weight of the evidence standard, but legal
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conclusions and the ultimate issue of personal jurisdiction de novo). Rather, defendant
attacks the sufficiency of plaintiff’s affidavits. Specifically, he focuses on the legal issue of
whether plaintiff’s affidavits were sufficient to support service by publication. JPMorgan
Chase Bank, National Ass’n v. Ivanov, 2014 IL App (1st) 133553, ¶ 64 (noting de novo
review is appropriate when reviewing only documentary evidence). Accordingly, we review
the issue of whether the circuit court obtained personal jurisdiction over defendant de novo.
BAC Home Loans Servicing, LP v. Mitchell, 2014 IL 116311, ¶ 17.
¶ 27 Jurisdiction over both the subject matter and the parties is required to have a valid
judgment. In re Marriage of Verdung, 126 Ill. 2d 542, 547 (1989). “Personal jurisdiction is
established either by effective service of process or by a party’s voluntary submission to the
court’s jurisdiction.” Mitchell, 2014 IL 116311, ¶ 35. A judgment entered without
jurisdiction over the parties is void and may be challenged, directly or collaterally, at any
time. Verdung, 126 Ill. 2d at 547.
¶ 28 In actions affecting property, the Code allows for service by publication. 735 ILCS
5/2-206 (West 2010). Section 2-206(a) of the Code provides, in relevant part:
“[P]laintiff or his or her attorney shall file *** an affidavit showing that the defendant
resides or has gone out of this State, *** so that process cannot be served upon him or
her, and stating the place of residence of the defendant, if known, or that upon
diligent inquiry his or her place of residence cannot be ascertained, the clerk shall
cause publication to be made in some newspaper published in the county in which the
action is pending.” 735 ILCS 5/2-206(a) (West 2010).
¶ 29 The circuit court of Cook County elaborates on section 2-206 of the Code in its local rule
7.3, which provides:
“Pursuant to [section 2-206(a) of the Code], due inquiry shall be made to find the
defendant(s) prior to service of summons by publication. In mortgage foreclosure
cases, all affidavits of service of summons by publication must be accompanied by a
sworn affidavit by the individual(s) making such ‘due inquiry’ setting forth with
particularity the action taken to demonstrate an honest and well directed effort to
ascertain the whereabouts of the defendant(s) by inquiry as full as the circumstances
permit prior to placing any service of summons by publication.” Cook Co. Cir. Ct.
R. 7.3 (Oct. 1, 1996).
¶ 30 The statutory prerequisites for service by publication, including due diligence and due
inquiry, must be strictly complied with in order for a court to obtain jurisdiction over a
defendant. Bank of New York v. Unknown Heirs & Legatees, 369 Ill. App. 3d 472, 475-76
(2006). “Our courts have determined that these statutory prerequisites are not intended as
pro forma or useless phrases requiring mere perfunctory performance but, on the contrary,
require an honest and well-directed effort to ascertain the whereabouts of a defendant by
inquiry as full as circumstances permit.” Id. at 476.
¶ 31 Relying solely on this court’s decision in Brewer, 2012 IL App (1st) 111213, defendant
first argues that plaintiff’s affidavits were improperly made in the passive voice and do not
set forth the particular actions taken to serve him. In Brewer, this court held that a mortgage
foreclosure plaintiff failed to present affidavits based on the affiant’s personal knowledge to
satisfy local rule 7.3. Id. ¶¶ 23-26. Specifically, the affidavits from the plaintiff did not
identify the affiant as the person who either attempted service or who searched the various
outlets to determine the defendant’s whereabouts. Id. ¶¶ 23-25. The Brewer court further
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noted that affidavits made in passive voice imply that someone other than the affiant
attempted service or performed the relevant searches. Id.¶ 22.
¶ 32 After reviewing the affidavits plaintiff used in this case to justify service by publication,
we hold the affidavits at issue here are easily distinguishable from the affidavits found to be
insufficient in Brewer. Unlike in Brewer, the affidavits in this case specifically identified the
affiant by name and outlined the steps the affiant took to either find or attempt service upon
defendant. The affidavits were notarized and signed by the named affiant. The affidavits for
the attempted service of the summons and complaint each named the respective process
server who made the attempt at service: Beth McMaster, Steven Stosur, or Nicholas Baker.
In the affidavit outlining the public and private database search, Michelle Bibeau is named as
the affiant. The language of the affidavits do not indicate that someone other than the affiant
attempted service, or in Bibeau’s case, searched the various databases. Accordingly, after
reviewing plaintiff’s affidavits, we cannot say that we are left with the impression that
someone other than the affiants undertook the actions stated in the affidavits.
¶ 33 We also disagree with defendant’s contention that plaintiff failed to specify the steps
plaintiff took to locate him. In the case of Michelle Bibeau, she identified several different
databases she searched in an effort to locate defendant. Those databases included social
security, directory assistance, driver’s license, motor vehicle, voter registration, Department
of State, “Nationwide Masterfile Death Search”; Department of Corrections, and property tax
searches. The process servers, i.e., Beth McMaster, Steven Stosur, and Nicholas Baker,
attempted service at five different Chicago addresses: 2707 West Medill; 4218 West
Thorndale; 4065 North Elston; 5701 West Patterson; and 1515 West Chestnut. At 4218 West
Thorndale, where defendant later alleged he resided, plaintiff specified eight different
attempts at service on six different dates. Overall, process servers employed by plaintiff
made 14 attempts at service upon defendant at 5 different addresses. In each affidavit, the
process servers explained the reason for nonservice as well as the time and date of each
attempt. Accordingly, we hold that plaintiff showed that it made a diligent inquiry and set
forth specific actions it took to determine defendant’s whereabouts sufficient to justify
service by publication in accordance with section 2-206(a) of the Code and local rule 7.3.
735 ILCS 5/2-206(a) (West 2010); Cook Co. Cir. Ct. R. 7.3 (Oct. 1, 1996).
¶ 34 Defendant’s final argument is that plaintiff’s affidavit for service by publication does not
speak the truth because it failed to state defendant’s residence as 4218 West Thorndale in
violation of section 2-206(a) of the Code. 735 ILCS 5/2-206(a) (West 2010). Defendant’s
argument is based on the premise that plaintiff knew he resided at 4218 West Thorndale prior
to serving him by publication. He relies on process server Beth McMaster’s affidavit in
which she attested that on August 8, 2011, at 8:10 p.m. she attempted service upon defendant
at 4218 West Thorndale. As a reason for nonservice, McMaster stated that she “spoke to the
defendant’s niece who stated that the defendant will be out of town for the next month or two
and that she was house-sitting while her aunt was away.” The niece gave McMaster a phone
number for defendant and for codefendant Maria Nascimento. The registration for
defendant’s phone indicated defendant’s address as 5701 Patterson Avenue. In a different yet
similar affidavit, McMaster attested that she attempted to serve codefendant Maria
Nascimento at the same address at the same time and similarly stated that she had spoken to
defendant’s niece who told her that she was house-sitting for her aunt. Plaintiff argues that
defendant’s argument is not supported by the record.
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¶ 35 After reviewing the record, we disagree with defendant’s contention and do not find that
plaintiff affirmatively misstated defendant’s residence. Rather, the record shows plaintiff,
after a diligent search and inquiry, was not able to ascertain defendant’s residence. A review
of McMaster’s affidavit shows that at no point in the affidavit does McMaster expressly state
that defendant resided at 4218 West Thorndale. Rather, McMaster indicates she spoke to
someone who told her she was house-sitting for her aunt. McMaster submitted a similar
affidavit for codefendant Nascimento. It is unclear to whom the person McMaster spoke to is
related and for whom she was house-sitting. Additionally, the phone number she gave
McMaster showed defendant’s address as 5701 West Patterson. Furthermore, another process
server employed by plaintiff, Steven Stosur, made seven attempts at serving defendant at
4218 West Thorndale on five later dates. Stosur attested that there were not any names on the
doorbell or mailbox and that he could not see or access the property. A review of Stosur’s
affidavits concerning 4218 West Thorndale, combined with the lack of a clear statement of
defendant’s residence in McMaster’s affidavit, lead us to conclude that plaintiff did not know
defendant resided at 4218 West Thorndale. Section 2-206 only requires a plaintiff to state a
defendant’s residence “if known.” 735 ILCS 5/2-206(a) (West 2010). Otherwise, the affidavit
must state “that upon diligent inquiry his or her place of residence cannot be ascertained.”
735 ILCS 5/2-206(a) (West 2010). Therefore, the absence of a statement indicating that
defendant resided at 4218 West Thorndale does not violate section 2-206(a) of the Code
because such a statement is only required if the residence is known to the plaintiff. 735 ILCS
5/2-206(a) (West 2010). The record before us does not show plaintiff knew defendant resided
at 4218 West Thorndale.
¶ 36 CONCLUSION
¶ 37 For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.
¶ 38 Affirmed.
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