PMIT REI 2021-A LLC v. Bell , 2024 IL App (1st) 230281-U ( 2024 )

2024 IL App (1st) 230281-USECOND DIVISION
May 14, 2024
No. 1-23-0281
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
PMIT REI 2021-A LLC, ) Appeal from the
) Circuit Court of
) Cook County.
Plaintiff-Appellee, )
)
)
v. )
)
)
BARBARA J. BELL, ) No. 20 CH 5484
)
)
Defendant-Appellant, )
)
and
)
CITY OF CHICAGO, STATE OF ILLINOIS )
DEPARTMENT OF REVENUE, ALLY BANK, )
UNKNOWN OWNERS AND NONRECORD )
CLAIMANTS, ) Honorable
) Lynn Weaver Boyle,
Defendants. ) Judge Presiding.
PRESIDING JUSTICE HOWSE delivered the judgment of the court.
Justices Ellis and Cobbs concurred in the judgment.
ORDER
¶1 Held: We affirm the judgment of the circuit court. The circuit court did not err
when it denied defendant’s motion to quash service of process.
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¶2 Plaintiff1 filed a complaint to foreclose a mortgage after defendant allegedly defaulted on
her obligation to pay. Plaintiff made several attempts to personally serve defendant with process
but was unable to do so. Plaintiff filed an affidavit with the circuit court seeking authorization to
serve defendant by publication. Defendant was served by publication, and a default judgment
was entered against her when she failed to appear in the case.
¶3 The property was later sold in a judicial foreclosure sale, and plaintiff filed a motion to
confirm the sale. On the day before the hearing on the motion to confirm the sale, defendant
appeared for the first time and moved to quash service of process. After full briefing on the issue,
the trial court denied defendant’s motion to quash service. Defendant then responded to
plaintiff’s motion to confirm the foreclosure sale, but the trial court ultimately granted plaintiff’s
motion to confirm the sale. Defendant now appeals, arguing that the trial court erred when it
denied her motion to quash service. Finding no reversible error, we affirm.
¶4 BACKGROUND
¶5 On July 25, 2005, defendant Barbara J. Bell executed a mortgage in favor of Standard
Bank & Trust Company. The mortgage was executed to secure a loan that Standard Bank made
to defendant. Plaintiff PMIT REI 2021-A LLC is the current owner of the note evidencing
defendant’s indebtedness which is secured by the mortgage Bell executed. On August 1, 2018,
Bell executed a loan modification agreement, and she then allegedly defaulted on the terms of
her modified loan as a result of nonpayment. On August 21, 2020, plaintiff filed suit to foreclose
the mortgage.
1
The original plaintiff in the case was UMB Bank. Plaintiff PMIT REI 2021-A LLC is UMB Bank’s
successor-in-interest and was substituted as plaintiff during the course of these proceedings. To avoid confusion on
the service of process issue, we will refer to both companies as “plaintiff” because as far as service is concerned the
actions taken by UMB Bank are imputed to the current plaintiff.
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¶6 Plaintiff then set out to serve process on defendant. Plaintiff attempted to personally serve
defendant at the address of the mortgaged property, which was believed to be defendant’s
principal place of residence. According to an affidavit from the special process server, plaintiff
attempted to serve defendant 12 separate times at the property address between December 10,
2020 and December 21, 2020.
¶7 In an affidavit, the special process server detailed his efforts to serve defendant, and he
included his observations of the property when he attempted service. For example, on his first
attempt at service, on December 10, 2020 at 6:12 a.m., the special process server noted that the
utilities at the property were on, the lights were turned on inside the home, but there was no
answer at the door. On his third attempt at service, on December 12, 2020 at 6:55 p.m., the
special process server noted that lights were on inside the property, but there was no answer at
the door. He left a business card outside the home during that visit. The next morning, on
December 13, 2020 at 7:46 a.m., the special process server noted that the business card was
gone, but no one answered the door again. On December 14, 2020, the special process server
went to the home at 7:10 p.m. and observed lights on in the basement, but no one answered the
door. The special process server attempted service at varying times of the day with attempts
made early in the morning, such as at 6 a.m. and 7 a.m., in the early and late afternoon, such as at
1:00 p.m., 3:00 p.m., and 4 p.m., and in the evening, such as at 7 p.m. and 8:30 p.m.
¶8 Following the inability to serve defendant at the subject address, plaintiff undertook
further efforts to locate defendant, according to an affidavit filed by Erin Bitz, a skip trace
investigator. Bitz found only the subject property as defendant’s probable principal residence.
Bitz searched an employment database, telephone directory assistance, motor vehicle division
records, voter registration records, prison records, post office records, among many other
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databases to find other information about where defendant could be potentially located and
served. Bitz also detailed that she searched for defendant in the Cook County Court records,
LinkedIn, Facebook, and Google. In those places, again, no information was found to alter the
assumption that defendant lived at the subject address, and no information was gained about any
potential alternative places where defendant could be located or served.
¶9 Bitz also detailed in her affidavit that she made two phone calls to defendant following
the inability to effectuate personal service. On December 23, 2020, Bitz avers that she called
defendant and there was no answer, but the voice mailbox identified the recipient of the call as
“Barbara.” On January 4, 2021, Bitz called defendant again. Bitz avers that defendant answered
the phone on that occasion and said, “I’m in the hospital,” and then refused to provide any other
information before disconnecting the call.
¶ 10 Following those efforts at personal service, plaintiff filed an affidavit to serve defendant
by publication. In support, Bitz submitted a separate affidavit in which she avers that defendant
“resides or has gone out of the State of Illinois, or on due inquiry cannot be found, or is
concealed within the State of Illinois, so that no process can be served on [her].” The clerk of the
circuit court mailed a copy of the affidavit for service by publication to defendant’s address. On
January 11, 18, and 25 of 2021, the notice of this lawsuit was published in the Chicago Daily
Law Bulletin. The notice was also placed on the statewide public notice website, as required by
statute.
¶ 11 Defendant did not appear or file a responsive pleading and a default judgment was
entered against her on April 20, 2022. Notice of the motion for default was sent to defendant at
the property address. The circuit court entered a judgment of foreclosure and ordered the
property to be sold to satisfy the outstanding indebtedness. The property was not redeemed by
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defendant within the time allowed by statute, and a foreclosure sale was set for July 22, 2022.
Notice of the foreclosure sale was sent to defendant at the property address. At the foreclosure
sale on July 22, 2022, plaintiff purchased the property for roughly the amount of the outstanding
indebtedness, $383,000. Plaintiff moved in the circuit court to confirm the sale. Notice of the
motion for the confirmation of the sale was sent to defendant at the property address.
¶ 12 On September 6, 2022, one day before the hearing on plaintiff’s motion to confirm the
sale, defendant appeared in the case through counsel and moved to quash service of process.
Defendant admitted in her motion to quash that she lived at the subject property during the times
plaintiff attempted service. However, defendant submitted her own affidavit in which she avers
that she was ill during the time the special process server was attempting to serve her, and she
was receiving treatment both at home and in the hospital during that time period. Defendant
attached some medical records to her motion to quash service to show the dates she received
medical treatments. Defendant also avers that she is infirm and suffers from various conditions,
and that she is afraid to open the door for strangers when it is dark outside. She further states that
the person who called her on the phone did not identify herself as a process server.
¶ 13 Following full briefing, the trial court denied defendant’s motion to quash service. The
trial court gave defendant an opportunity to respond to plaintiff’s motion to confirm the sale of
the subject property. Following full briefing, the trial court granted plaintiff’s motion to confirm
the foreclosure sale which disposed of the case. Defendant filed this appeal.
¶ 14 ANALYSIS
¶ 15 On appeal, defendant argues that the circuit court did not obtain personal jurisdiction over
her. Principally, defendant argues that plaintiff did not meet the statutory requirements for
serving her by publication. She also argues that the final attempt at personal service was too far
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removed from the time at which plaintiff moved to serve her by publication. Alternatively,
defendant argues that the circuit court should have conducted an evidentiary hearing on the
motion to quash service. Defendant maintains that “the circuit court erred when it denied
Defendant’s motion to quash service of process and when it granted Plaintiff’s motion for an
order approving [the foreclosure] sale, which flowed from the judgment that was entered without
personal jurisdiction over the Defendant.” Defendant asks that we reverse the circuit court’s
decision.
¶ 16 The parties agree that our review of the issues in this case is de novo. See Deephaven
Mortgage LLC v. Jones, 2020 IL App (1st) 191468, ¶ 32 (a motion to quash service decided on
the papers alone is subject to de novo review); Illinois Service Federal Savings & Loan Ass’n of
Chicago v. Manley, 2015 IL App (1st) 143089, ¶ 17 (whether the circuit court obtained personal
jurisdiction of a defendant is reviewed de novo).
¶ 17 In order to enter a valid judgment, the circuit court must obtain personal jurisdiction over
the parties. State Bank of Lake Zurich v. Thill, 113 Ill. 2d 294, 308 (1986). The circuit court
acquires personal jurisdiction over a defendant either: (1) by the defendant filing an appearance
in the case, or (2) by service of process being effected upon the defendant as directed by statute.
Id. The purpose of service of process is twofold as it serves the purpose of giving notice to those
whose rights are about to be affected by the plaintiff’s action, and it also vests jurisdiction in the
court over the person whose rights are to be affected by the litigation. Equity Residential
Properties Management Corp. v. Nasolo, 364 Ill. App. 3d 26, 31 (2006).
¶ 18 Service by publication is governed by section 2-206 of the Code of Civil Procedure,
which sets forth the circumstances under which a plaintiff can serve a defendant by publication.
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“Whenever, in any action affecting property or status within the jurisdiction of the
court, *** the plaintiff or his or her attorney shall file, at the office of the clerk of
the court in which the action is pending, an affidavit showing that the defendant
resides or has gone out of this State, or on due inquiry cannot be found, or is
concealed within 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.” 735 ILCS 5/2-206(a)
(West 2022).
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.
BankUnited v. Velcich, 2015 IL App (1st) 132070, ¶ 30; Citimortgage, Inc. v. Cotton, 2012 IL
App (1st) 102438, ¶ 27. The law requires an honest and well-directed effort to ascertain the
whereabouts of a defendant by an inquiry as full as the circumstances can permit. American
Chartered Bank v. USMDS, Inc., 2013 IL App (3d) 120397, ¶ 18. However, “service by
publication will only be overturned where plaintiff's efforts to discover a defendant's
whereabouts are ‘casual, routine, or spiritless.’ ” Deephaven Mortgage LLC, 2020 IL App (1st)
191468, ¶ 55.
¶ 19 We first address the issue of waiver raised by plaintiff. Plaintiff argues that defendant
waived any error the trial court may have made in finding it had personal jurisdiction and in
ruling on the motion to quash service because defendant filed a response to the motion to
confirm the foreclosure sale. Plaintiff argues that, when defendant filed the response, she waived
any error in the court’s ruling. Plaintiff relies on section 301(c) of the Code of Civil Procedure
which provides that an “[e]rror in ruling against the objecting party on the objection [to personal
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jurisdiction] is waived by the party’s taking part in further proceedings unless the objection is on
the ground that the party is not amenable to process issued by a court of this State.” 735 ILCS
5/2-301(c) (West 2022). However, our supreme court has interpreted section 301(c) and
“reaffirm[ed] the longstanding rule that a party who submits to the court's jurisdiction does so
only prospectively and the appearance does not retroactively validate orders entered prior to that
date.” BAC Home Loans Servicing, LP v. Mitchell, 2014 IL 116311, ¶ 43 (quoting In re
Marriage of Verdung, 126 Ill. 2d 542, 547 (1989) (internal quotation marks omitted)). The
supreme court in Mitchell further held that, “[t]o the extent that Illinois appellate court decisions,
including Marzano and Flores, hold to the contrary, they are overruled.” Id.¶ 20 Therefore, we reject plaintiff’s argument that defendant waived its objection to personal
jurisdiction and service of process. Defendant is entitled to maintain her arguments that the trial
court did not have jurisdiction when it entered the orders of default and the judgment of
foreclosure and sale because her participation did not waive jurisdiction retroactively. Id.¶ 21 Defendant acknowledges that the property address was her usual place of abode and was
the appropriate place for plaintiff to attempt service. Defendant, however, argues that Bitz’s
statement, made in her affidavit submitted in support of serving defendant by publication, that
defendant could not be found or was concealed within the State of Illinois was not supported by
the facts. Defendant maintains that she was not concealed within the State—she was undergoing
medical treatment both at her home and in the hospital.
¶ 22 According to the affidavits, plaintiff attempted to serve defendant at the property address
12 times. The special process server’s affidavit includes details that indicate defendant was not
amenable to being personally served at the property. For instance, the special process server
indicated that he left a business card at defendant’s home and, when he returned approximately
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12 hours later, the card was gone. Sometimes lights were on in the house, and different lights
were on at different times, but the door was never answered. The special process server went to
the house variably in the morning, the afternoon, and the evening, but no one answered the door
at any time of day.
¶ 23 We find plaintiff has demonstrated that it strictly complied with the statute for service by
publication. Defendant’s primary point in arguing that plaintiff failed to strictly comply with the
statute is her position that plaintiff failed to conduct the “due inquiry” required for service by
publication. However, plaintiff set out through a series of affidavits the substantial inquiry it
made to locate and serve defendant.
¶ 24 After it became evident that plaintiff was not able to serve defendant by appearing at her
door, plaintiff undertook an extensive public records search to see if defendant might be located
elsewhere. The special process server then called defendant two times on the phone. When
defendant answered the phone the second time that she was called by the process server,
defendant stated that she was in the hospital but then refused to provide any more information
and hung up the phone. Defendant was then served by publication and many notices were sent to
her at the address she acknowledges to be her home address.
¶ 25 The individual circumstances here indicate that plaintiff conducted an honest and well-
directed effort to locate and serve defendant. The special process server made uncontradicted
observations that the property appeared to be occupied during the period he attempted service,
and defendant admits she was in the home during that period. Despite the lack of foundation for
defendant’s hospital records, if we did consider defendant’s hospital records, they show
defendant was in the hospital on only two of the twelve days plaintiff attempted service.
According to the record, defendant occupied the home except on the dates she was in the hospital
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and regularly allowed a physical therapist to enter the home during that period to provide
services. Defendant claims she was in regular communication with the mortgage company about
“trying to settle this case amicably.” Defendant does not refute any of the attestations made by
the two individuals tasked with locating and serving her. Defendant likewise does not offer any
admissible evidence to show that she could have been located and served had plaintiff done
anything differently.
¶ 26 Defendant contends that plaintiff was required to make additional attempts at service
after speaking to defendant on the phone and learning she had been ill, and that the failure to do
so is the definition of perfunctory performance that should result in the service by publication
being quashed. We disagree that plaintiff was required to take that precise course of action to
have satisfactorily performed the due inquiry requirement. Based on the totality of plaintiff’s
efforts, we find it conducted a due inquiry into defendant’s location.
¶ 27 The statute for service by publication does not require a plaintiff to act perfectly by
making all possible inquiries and exhausting all possible means by which to serve a defendant.
See JPMorgan Chase Bank, National Ass'n v. Ivanov, 2014 IL App (1st) 133553, ¶ 55 (“the law
does not require a specific number of attempts or unduly exhaustive efforts to locate the
whereabouts of a defendant.”). Rather, a plaintiff must show that it performed a “due inquiry”
which has been defined as an honest and well-directed effort to locate and serve the defendant.
Bank of New York v. Unknown Heirs & Legatees, 369 Ill. App. 3d 472, 476 (2006). Plaintiff’s
efforts in this case were not casual, routine, or spiritless—the efforts were real and significant
attempts at service, specifically designed and intended to find and serve defendant. See
Neighborhood Lending Services, Inc. v. Griffin, 2018 IL App (1st) 162855, ¶ 21.
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¶ 28 As stated above, it is the particular circumstances of this case that establish service by
publication was permitted here. Defendant’s own admissions and the evidence she submitted,
coupled with the efforts taken and the observations made by plaintiff’s special process server,
showed that attempts at personal service at defendant’s address would not achieve results.
Household Finance Corp., III v. Volpert, 227 Ill. App. 3d 453, 455 (1992). After all attempts at
personal service were unsuccessful, plaintiff undertook an extensive records search to find if
there may be somewhere else to locate and serve defendant, but the search resulted in no leads.
Plaintiff then tried contacting defendant by phone, but that method was unsuccessful as well
because defendant refused to provide any information and hung up. Following those honest and
well-directed efforts, plaintiff applied to the court to serve defendant by publication. Plaintiff
strictly complied with the statute and the trial court correctly denied defendant’s motion to quash
service.
¶ 29 As an analogous or applicable case, defendant relies on Cotton, 2012 IL App (1st)
102438 to argue that the motion to quash service should have been granted here. In Cotton, the
plaintiff made what appeared to be, at first glance, a diligent inquiry by attempting to serve the
defendant personally 19 times at two different locations. Id. at ¶ 27. However, when the
defendant filed an affidavit while contesting personal jurisdiction, we observed that the
defendant raised serious, legitimate questions about the truthfulness of the process servers’
affidavits. Id. at ¶¶ 28-31. The defendant, therefore, had created a question of fact regarding the
credibility and reliability of the process servers’ affidavits. Thus, we explained that “if the
defendant is able to present a significant issue with respect to the truthfulness of the affidavit
filed by the plaintiff’s agent for service by publication, then the trial court should hold an
evidentiary hearing on the issue with the burden of proof being upon the plaintiff to establish that
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due inquiry was made to locate the defendant.” Id. at ¶ 18 (citing First Federal Savings & Loan
Association v. Brown, 74 Ill. App. 3d 901, 907-08 (1979)).
¶ 30 The circumstances and reasoning we applied in Cotton are not applicable to this case.
Defendant does not make any attestations in her affidavit that conflict with or call into question
the veracity of any of the attestations made by the individuals tasked with locating and serving
her. Indeed, the statements in defendant’s affidavit and the records she attached to her motion to
quash service actually tend to corroborate much of what plaintiff’s affiants stated in their
affidavits.
¶ 31 Contrary to the nonapplicability of Cotton, a case relied upon by plaintiff is more
factually analogous and is persuasive to our determination. In Volpert, 227 Ill. App. 3d at 455,
the plaintiff knew the defendant’s probable residence and attempted to serve the defendant there
11 times over a two-month period. The process server memorialized observations about the
appearance of the defendant’s home, such as, “lights on—car in drive—won’t answer door.” Id.The process server averred that he made repeated attempts during the day, night, and weekend,
but he was unable to serve the defendant. Id. The process server indicated that, “although the
house appeared occupied, no one answered the door.” We found the plaintiff’s efforts to have
established “due inquiry” for purposes of serving the defendant by publication, albeit under a
different standard of review. Id. at 454-56.
¶ 32 Like the affidavits submitted to the court in Volpert, the affidavits here demonstrate that
plaintiff was unable to serve defendant despite knowing her primary residence because no one
answered the door. Here, ultimately, plaintiff has made the required showing that process could
not personally be served on defendant. Plaintiff made a dozen attempts to serve defendant at her
home but could not make contact with her, even though the special process server’s observations
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and defendant’s admissions indicated someone was home. In such a situation, due inquiry may
be found. See id.; see also TCF National Bank v. Richards, 2016 IL App (1st) 152083, ¶¶ 33-34;
Griffin, 2018 IL App (1st) 162855, ¶¶ 20-23.
¶ 33 Defendant contends that the length of time between plaintiff’s last service on attempt on
December 21, 2020 and the date it filed the affidavit for service by publication on January 6,
2021 made the affidavit stale (citing Bank of N.Y Mellon v. Karbowski, 2014 IL App (1st)
130112). Defendant argues that the 17-day period between the last service attempt and the
affidavit for service by publication constituted an unreasonable lapse of time such that plaintiff
has not demonstrated due diligence in service.
¶ 34 Defendant’s argument, however, fails to adequately account for the efforts plaintiff was
making towards locating defendant even after the last time plaintiff had a process server go to
defendant’s residence. After attempting to serve defendant 12 times personally at her home,
plaintiff’s skip trace investigator undertook an investigation to determine where else defendant
might be located. The final attempt to serve defendant personally was made on December 21,
2020. The skip trace investigator, Bitz, called defendant on December 23, 2020 and on January
4, 2021. She searched numerous databases attempting to locate defendant. At the completion of
that investigation, on January 4, 2021, Bitz executed her affidavit averring that defendant could
not be found. Plaintiff filed its motion for service by publication on January 6, 2021—just two
days later.
¶ 35 In Karbowski, we discussed that situations might arise where a substantial period of time
between the efforts to locate the defendant and the filing of the motion to serve by publication
may result in the plaintiff being unable to establish the due diligence required by the statute. Id.
at ¶ 18. Such is not the case here. Defendant has failed to demonstrate that this case is in any way
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analogous to the cases she relies upon for her argument that the affidavit was executed after an
unreasonable lapse in time, and she has otherwise failed to demonstrate that the affidavit was
untimely or stale.
¶ 36 Alternatively, defendant argues that the trial court should have held an evidentiary
hearing on her motion to quash service rather than ruling on the documentary evidence
submitted. Defendant contends that the trial court should have ordered an evidentiary hearing to
resolve disputes about the content of the phone calls made by Bitz to defendant on December 23,
2020 and January 4, 2021. Defendant maintains that the court should have held the evidentiary
hearing to determine what information plaintiff’s process server gave defendant, if any, in a
voicemail during the first phone call and to determine the content of the second phone call.
Defendant points to her affidavit filed in support of her motion to quash service in which she
avers that the person on the phone did not identify herself as a process server.
¶ 37 In making the argument that an evidentiary hearing was required, defendants relies on
authorities that interpret a prior version of the statute in which we explained that “[i]f the
plaintiff’s documentary evidence, including affidavits and depositions, contradicts the
defendant’s evidence on issues of fact that will determine whether the court has personal
jurisdiction, the trial court must hear the testimony, evaluate its credibility, and resolve any
material conflicts in the evidence.” Femal v. Square D Co., 388 Ill. App. 3d 134, 141 (2009)
(quoting Stein v. Rio Parismina Lodge, 296 Ill. App. 3d 520, 523 (1998)). The statute was
amended in 2000 and currently provides that, “[i]n disposing of a motion objecting to the court's
jurisdiction over the person of the objecting party, the court shall consider all matters apparent
from the papers on file in the case, affidavits submitted by any party, and any evidence adduced
upon contested issues of fact.” 735 ILCS 5/2-301(b) (West 2022).
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¶ 38 In our view, defendant has failed to identify any contested factual dispute between her
affidavit and the affidavits submitted by plaintiff’s special process servers which would require
an evidentiary hearing under either version of the statute. Defendant has not, as in Cotton,
provided attestations and evidence that contradict or call into question the affidavits submitted by
the special process servers. See supra ¶¶ 26-27; Cotton, 2012 IL App (1st) 102438, ¶¶ 28-29. In
fact, defendant’s affidavit corroborates statements made in the special process servers’ affidavits.
¶ 39 The exact information the process server gave defendant over the phone was not material
to the trial court’s decision, and defendant did not raise any question about the content of those
calls in her affidavit. There was likewise no material factual dispute created by defendant’s
statement that the person who called did not identify herself as a process server. Plaintiff’s
affiants never claimed to have identified themselves to defendant and it was not necessary for
them to have done so in order for due inquiry to be found under the service by publication
statute. The trial court did not err when it rejected defendant’s request for an evidentiary hearing,
as the trial court was entitled to rule on the documentary evidence alone.
¶ 40 CONCLUSION
¶ 41 Accordingly, we affirm.
¶ 42 Affirmed.
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