Deephaven Mortgage LLC v. Jones , 2020 IL App (1st) 191468 ( 2020 )

2020 IL App (1st) 191468FOURTH DIVISION
December 4, 2020
No. 1-19-1468
______________________________________________________________________________
IN THE APPELLATE COURT
OF ILLINOIS
FIRST JUDICIAL DISTRICT
______________________________________________________________________________
) Appeal from the
DEEPHAVEN MORTGAGE LLC, ) Circuit Court of
) Cook County
Plaintiff-Appellee, )
)
v. )
)
KERRY JONES, HOSANNA JONES, and UNKNOWN ) No. 18 CH 7553
OWNERS AND NONRECORD CLAIMANTS )
)
Defendants )
)
) Honorable
(Hosanna Jones, Defendant-Appellant). ) Edward N. Robles,
) Judge Presiding.
______________________________________________________________________________
JUSTICE REYES delivered the judgment of the court, with opinion.
Justices Hall and Lampkin concurred in the judgment and opinion.
OPINION
¶1 In this mortgage foreclosure action, plaintiff, Deephaven Mortgage LLC, served process
on defendant, Hosanna Jones, by publication. 1 When the defendant did not appear or answer, the
circuit court entered a default judgment and ordered a judicial sale of defendant’s property. The
property was then sold at a judicial sale, and that sale was subsequently confirmed by the circuit
1
The record discloses that after service by publication in July 2018, defendant divorced
codefendant Kerry Jones and changed her name to Hosanna Mahaley.
1-19-1468
court. The day after the sale was confirmed, defendant filed a motion to quash the service of
process by publication. After the matter was fully briefed and argued, the circuit court denied the
motion to quash. Defendant now appeals pro se, arguing that the circuit court erred when it
denied her motion to quash because plaintiff did not meet the requirements for service by
publication. She further maintains, in the alternative, that the matter should be remanded for the
circuit court to hold an evidentiary hearing. For the reasons which follow, we affirm.
¶2 BACKGROUND
¶3 This matter commenced as a mortgage foreclosure action pursuant to the Illinois
Mortgage Foreclosure Law (Foreclosure Law) (735 ILCS 5/15-1501 et seq. (West 2018)).
Plaintiff filed a complaint on June 15, 2018, alleging defendant and her codefendant Kerry Jones
were in default for failure to make payments toward the mortgage on the property located at
1419 E. 156th Street in Dolton, Illinois (subject property). Copies of the mortgage and note were
attached to the complaint. The mortgage listed defendant by the name “Hosanna Jones” and
indicated that the property was not owner occupied. The note was signed by Kerry Jones.
¶4 On July 25, 2018, process server Mark Skrzydlak (Mark) filed an affidavit for service by
publication pursuant to section 2-206 of the Code of Civil Procedure (Code) (735 ILCS 5/2-206
(West 2018)). In the affidavit, Mark averred that he had made “a diligent inquiry as to the
whereabouts of Hosanna Jones” and that “upon my diligent inquiry, the place of residence of
Hosanna Jones cannot be ascertained and/or their last known place of residence is [the subject
property address].” According to Mark, “Hosanna Jones 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 them.” Plaintiff’s counsel also filed a similar affidavit pursuant to section 2-206 of the
Code.
-2-
1-19-1468
¶5 In addition, Mark executed an affidavit pursuant to Cook County Circuit Court Rule 7.3
(Cook County Cir. Ct. R. 7.3 (Oct. 1, 1996)) in which he attested that he performed a “diligent
search and inquiry to discover the name and residence of Hosanna Jones by the following acts set
forth below.” The local rule 7.3 affidavit indicated that Mark utilized Clear-Thomson-Reuters to
conduct an inquiry into defendant. According to the affidavit, Clear-Thomson-Reuters is a
private database that utilizes thousands of different public records databases and other resources.
Mark attested that a review of the search results revealed no additional addresses outside of the
addresses attempted. The Clear-Thomson-Reuters search of the following failed to provide any
“recent viable new address outside of the attempted addresses”: local and federal prisons,
telephone directories, vehicle registrations, death records, other records associated with
defendant’s social security number, utility services, business registrations, driver’s licenses,
foreclosures, watercraft, Federal Aviation Administration aircraft registrations, unclaimed assets,
criminal records and traffic citations, arrests, infractions, Uniform Commercial Code filings,
bankruptcies, liens and judgments, lawsuits, dockets, military records, licenses, business
affiliations, political donations, voter registrations, marriages, divorces, and real property
ownership and deed transfers.
¶6 In addition to the local rule 7.3 affidavit, plaintiff filed numerous additional affidavits
detailing attempted service of process on defendant at six different addresses. In the first
affidavit, special process server Ania Skrzydlak (Ania) averred that she attempted to serve
defendant at the subject property address on June 20, 2018, but was unsuccessful. Ania stated in
her affidavit that she spoke with two tenants of the four-unit building and they indicated they did
not know anyone by the name of Kerry Jones or Hosanna Jones. She further averred that
defendant’s name did not appear on any of the mailboxes.
-3-
1-19-1468
¶7 In a second affidavit, Ania averred that she attempted to serve defendant at an address on
Ring Road in Calumet City, Illinois, on June 25, 2018, but was unsuccessful because the address
was a post office. Ania also executed a third affidavit in which she attested she attempted to
serve defendant at a property on Luella Avenue in Calumet City, Illinois, on July 5, 2018, but
was unsuccessful. Ania averred she spoke to a tenant of the building who indicated that
defendant was the owner of the property and did not reside there. Ania inquired of the tenant
where the owners could be found, and the tenant replied that they did not know. In her fourth
affidavit, Ania averred that she went to a property on Downs Drive in Calumet City, Illinois, on
July 5, 2018, seeking defendant but, again, was unsuccessful. Ania averred that this property was
a boarded-up apartment building.
¶8 Ryan Roman, a licensed private investigator, averred he attempted to serve defendant on
July 11, 2018, at 901 N. Michigan Avenue in Chicago, but that address did not exist.
¶9 Mark averred that he attempted to serve defendant at 401 N. Michigan Avenue in
Chicago 10 times between June 19 and July 11, 2018, at various times between 8:48 a.m. and
2:35 p.m. but was unsuccessful. Regarding his first attempt at service there, Mark attested as
follows:
“I was given a security pass and went up to the suite. This is a Regis office that is shared
by several people. The receptionist for the Regis Office said that Kerry Jones and
Hosanna Jones do have an office in the suite but they are not in at the moment. She was
not sure when they would be back. She has no affiliation with them other than being the
receptionist for the shared office space.”
Mark further attested that in his nine subsequent attempts at service he was informed the space
was a “virtual office” and defendant was not in.
-4-
1-19-1468
¶ 10 On August 16, 2018, plaintiff filed a “Certificate of Publication” from the Chicago Daily
Law Bulletin, which indicated that the publication notice regarding this foreclosure matter was
published on July 27, August 3, and August 10, 2018.
¶ 11 As defendant had failed to file an appearance or answer in the matter, plaintiff moved for
a default judgment and a judgment of foreclosure and sale, which were granted on October 18,
2018, by the circuit court. Pursuant to the judgment of foreclosure, the property was sold at a
judicial sale on March 1, 2019. On April 9, 2019, the sale of the property was confirmed and an
order granting immediate possession of the property was entered.
¶ 12 The following day, defendant (through counsel) filed an emergency motion to quash
service by publication and vacate the order for immediate possession of the property. The circuit
court entered a briefing schedule on the motion to quash service by publication and vacated its
previous order for immediate possession.
¶ 13 In her motion to quash, defendant argued that there were no valid attempts to effectuate
service of summons upon her home or respective workplace and that the affidavit for service by
publication was not made in good faith. Specifically, she alleged she could have been found to
reside on Drexel Boulevard in Chicago and that she could have been found had plaintiff
conducted a diligent search. Defendant asserted that the Drexel Boulevard address could have
been discovered as it was included in a 2015 mortgage foreclosure case where she was named as
a defendant (Geauga Savings Bank v. Hosanna Mahaley, No. 15-CH-14327 (Cir. Ct. Cook
County)), her driving record, voter registration record, recent judgment of dissolution (Hosanna
Jones v. Kerry Jones, No. 17-D-5728 (Cir. Ct. Cook County)), a quitclaim deed executed by
Kerry Jones to defendant for the Drexel Boulevard property, and loan modification
documentation she had submitted to plaintiff.
-5-
1-19-1468
¶ 14 Defendant attached her own affidavit and numerous exhibits to the motion to quash. In
her affidavit, defendant averred that she is now known as “Hosanna Mahaley” and that she was
unaware of this mortgage foreclosure action until April 3, 2019, when the loan servicer informed
her the subject property had been sold. According to defendant, she had been working with the
loan servicer since December 2017 on a loan modification and had submitted a complete loan
modification packet in November 2018. During this process she has submitted a “Uniform
Borrower Assistance Form” which bears her Drexel Boulevard home address. She attested she
has resided on Drexel Boulevard in Chicago since September 1, 2016, and has owned the
property since February 2003. In addition, defendant stated she works from home as well as from
“401 South [sic] Michigan Avenue, Suite 1200” since 2016. 2 Furthermore, defendant indicated
that her address could have been ascertained from her marriage dissolution court file as well as
the 2015 mortgage foreclosure court file. Lastly, defendant averred that at no time did anyone
attempt to serve her at her home or work with the subject complaint and that “the attempt
allegedly made to serve me as set forth in the Affidavit of Service(s) filed in this matter is
disingenuous.”
¶ 15 Attached as exhibits to her motion to quash were the following documents: 3 (1) the first
page of the docket for case number 15-CH-14327, which indicated she was sued under the names
“Hosanna Mahaley” and “Hosanna Mahaley Johnson” (It did not include an address for
defendant.); (2) the judgment of dissolution of marriage between defendant and Kerry Jones (The
judgment included the circuit court’s finding that the parties owned real properties on Patricia
Place in Calumet City, Downs Drive in Calumet City, Luella in Calumet City, the subject
2
Defendant does not contest that her work address is actually 401 North Michigan Avenue in
Chicago.
3
Exhibits B and D, which defendant identifies as her driving record and the “Uniform Borrower
Assistance Form,” are not included in the record on appeal.
-6-
1-19-1468
property, and Memorial Drive in Calumet City. The judgment of dissolution did not indicate that
defendant resided at the Drexel Boulevard property.); (3) a quitclaim deed for the Drexel
Boulevard property from Kerry Jones to defendant executed on September 20, 2017, and
recorded on October 3, 2018; and (4) the notice of motion for the entry of the order approving
the sale for the subject property, indicating it was mailed to defendant at the subject property
address.
¶ 16 In response, plaintiff argued that defendant’s motion to quash service by publication
should not be granted because it exercised due diligence and due inquiry in attempting to locate
defendant prior to service by publication. Plaintiff initially observed that defendant’s affidavit
failed to comply with Illinois Supreme Court Rule 191(a) (eff. Jan. 4, 2013) because the
documents attached to the affidavit were not sworn or certified copies. Plaintiff further argued
that defendant failed to meet her burden to challenge service by publication where she failed to
provide an affidavit that demonstrated upon due inquiry she could have been found. While
defendant stated she resides on Drexel Boulevard and works on Michigan Avenue, service was
attempted 10 times at defendant’s work address. In regard to the Drexel Boulevard residence,
plaintiff maintained that none of the documents provided by defendant demonstrated Drexel
Boulevard was her residence at the time of service. Specifically, plaintiff observed that the loan
modification application provided by defendant was dated September 9, 2018, several months
after service by publication was completed on July 27, 2018. 4 Similarly, the quitclaim deed was
recorded on October 3, 2018, again after service by publication was completed. Plaintiff noted
that the judgment of dissolution (entered one day prior to the service by publication) did not
include the Drexel Boulevard property.
4
This document is not included in the record on appeal but there is no dispute between the parties
that it was dated September 29, 2018.
-7-
1-19-1468
¶ 17 Plaintiff also attached a copy of the complaint in the 15-CH-14327 case, which indicated
it was filed against “Hosanna Mahaley a/k/a Hosanna Mahaley-Johnson” for failure to make
payments associated with the Drexel Boulevard property. Plaintiff argued that the complaint did
not include her name as listed in the present case—Hosanna Jones. Thus, plaintiff maintained
that a search for “Hosanna Jones” in the circuit court docket system would not return a result for
“Hosanna Mahaley.” Plaintiff, however, noted that a review of the 15-CH-14327 case revealed
that defendant averred she did not reside at the Drexel Boulevard property. On January 19, 2016,
defendant filed a pro se appearance listing her address as Ring Road in Calumet City—an
address where plaintiff had attempted to serve her in this case. A copy of this appearance was
attached to plaintiff’s response. In addition, plaintiff acknowledged that the record demonstrated
defendant was served at the Drexel Boulevard address on October 16, 2015, via substitute
service and thereafter defendant filed a motion to quash service specifically asserting that she did
not reside at the Drexel Boulevard address. Accordingly, plaintiff asserted that defendant’s
reliance on the 2015 mortgage foreclosure case was insufficient to establish upon due inquiry she
could have been found. Plaintiff attached a copy of this motion to quash and defendant’s
supporting affidavit to its response.
¶ 18 Regarding defendant’s driver’s license issued October 2017, which provides her address
as the Drexel Boulevard property, plaintiff argued that the license was issued to “Hosanna
Mahaley” and not “Hosanna Jones.” In addition, plaintiff maintained that the date of issuance of
the license is insufficient to establish her address because it was issued nine months before
plaintiff attempted to serve defendant. Plaintiff further noted that its due diligence affidavit
indicated that the driving records were searched and no additional addresses were found.
¶ 19 Lastly, plaintiff argued that it satisfied the requirements to serve defendant by
-8-
1-19-1468
publication. Plaintiff contended it provided the required affidavits for service by publication and
that the process servers attempted service at six separate addresses a total of 15 times. Moreover,
the search of public information provided no additional addresses for defendant.
¶ 20 In reply, defendant submitted additional exhibits and argued that the affidavit of due
diligence was refuted by this evidence. Specifically, defendant maintained that, contrary to the
affidavit, the Illinois Secretary of State and voter registration databases were not searched by the
special process server. Defendant observed that her driver’s license bears the Drexel Boulevard
address as does her voter registration card. Defendant further argued that in 2014 she filed
bankruptcy and that case referenced the Drexel Boulevard address, but the process server did not
check the bankruptcy filings. Defendant also attached utility bills in her name acquired during
the time of attempted service. Defendant argued that these documents demonstrated that the
statements made within the due diligence affidavit that a diligent search was conducted were
false.
¶ 21 In regard to the judgment of dissolution, defendant contended that while the judgment of
dissolution did not include the Drexel Boulevard address, the case file did contain the address
and could have been discovered. Moreover, the judgment of dissolution provided that she would
return to the use of her maiden name “Mahaley,” and therefore the process server could have
searched for her residence under this name. Defendant additionally argued that the social security
database was not examined because a search of said database would have revealed that “Hosanna
Jones and Hosanna Mahaley were the same individual.”
¶ 22 Regarding the attempts of service at her workplace, defendant argued that no name was
given for the receptionist the process server spoke to or how the process server knew that she
was not in.
-9-
1-19-1468
¶ 23 Defendant also attached affidavits of three of the tenants who resided in two units of the
subject property. Defendant argued that these affidavits indicated the property was never
abandoned and that no process server ever spoke with anyone at the property. Defendant
additionally included as exhibits the 2015 mortgage foreclosure litigation docket sheet; two
different driver’s licenses with the Drexel Boulevard address in the name of “Hosanna Mahaley
Jones” (issued October 4, 2017) and “Hosanna Mahaley” (issued September 24, 2018); voter
registration records indicating she was registered to vote at the Drexel Boulevard address until
April 4, 2019, and a voter registration application that included a third driver’s license number
(different from the other two driver’s licenses provided); a People’s Gas bill for the Drexel
Boulevard property in the name of “Hosanna Johnson” for service from June 27, 2018, through
July 26, 2018; a ComEd bill for service June 29, 2018, through July 31, 2018, addressed to
“Hosanna Jones” for the Drexel Boulevard property but sent to the Ring Road address; a City of
Chicago water bill for service May 7, 2018, through July 9, 2018, for the Drexel Boulevard
property but sent to “Hosanna Mahaley” at the Ring Road address; a copy of a social security
card issued on March 21, 2019, in the name “Hosanna Mahaley” and sent to the Drexel
Boulevard address; and a special warranty deed for the Drexel Boulevard property recorded
March 7, 2003, transferring it to “Hosanna Mahaley.” No affidavit accompanied the reply.
¶ 24 Plaintiff was granted leave to file a surreply in which it argued that the documents
attached to the reply were inadmissible and could not be considered by the court. Plaintiff
observed that none of these documents were attached to a proper Rule 191(a) affidavit and no
foundation was laid for the documents and therefore the documents are hearsay and thus
inadmissible.
¶ 25 Regarding the new documents attached to defendant’s reply, plaintiff argued that, even if
- 10 -
1-19-1468
considered, they did not serve to refute the due diligence affidavit. Specifically, plaintiff argued
that the driver’s licenses provided by defendant are under the name “Hosanna Mahaley” not
“Hosanna Jones,” the name of defendant in the current action and the name under which she
executed the subject loan documents. The voter registration information provided states that she
was a registered voter and said registration was cancelled on April 4, 2019. The gas bill for the
Drexel Boulevard property dated July 27, 2018, is in the name “Hosanna Johnson.” The ComEd
bill showing service from June 29, 2018, through July 31, 2018, is addressed to “Hosanna Jones”
but was mailed to the Ring Road address. Plaintiff also observed that the ComEd bill
demonstrated “very little by way of charges in May, June, and July, the months in question, and
a massive spike in electricity for August.” The water bill for the Drexel Boulevard property is
also in a different name, “Hosanna Mahaley” and was mailed to Ring Road. The document from
the Social Security Administration is also irrelevant because it was a card applied for in March
2019, months after the service attempts and is addressed to “Hosanna Mahaley.” Plaintiff
concluded that none of the documents demonstrated that she resided at the Drexel Boulevard
address during the service period or that plaintiff did not conduct a diligent search or due inquiry
into her location.
¶ 26 On July 16, 2019, the circuit court conducted a hearing on the motion to quash and a
record of proceedings was included in the record on appeal. After considering the arguments of
the parties, the circuit court denied the motion and defendant’s request for an evidentiary
hearing. Based on its review of the motion, the submissions of the parties, the various exhibits
including the affidavit and the exhibits attached to all pleadings, the circuit court found, as a
preliminary matter, that the affidavits that were attached were deficient under Rule 191(a) and
the documents attached thereto were not authenticated and therefore were not properly before the
- 11 -
1-19-1468
court. Regardless, the circuit court, as a court of equity, considered the unauthenticated
documents and determined that defendant failed to present a significant issue with regard to the
truthfulness of the affidavits submitted by plaintiff’s process servers.
¶ 27 This appeal followed.
¶ 28 ANALYSIS
¶ 29 On appeal, defendant contends pro se that the circuit court erred when it denied her
motion to quash service by publication where her documentary evidence and affidavits
demonstrated that the affidavits of plaintiff’s process servers lacked veracity. Accordingly,
defendant requests we grant her motion to quash and find the orders entered in the underlying
foreclosure matter void. In the alternative, defendant asserts that the circuit court committed
reversible error when it failed to conduct an evidentiary hearing. It should be noted that the
defendant did not file a reply brief before this court. For the following reasons, we affirm.
¶ 30 Prior to addressing the legal issues in this case, we turn to an issue with the supplemental
record filed by defendant before this court on February 28, 2020. Although defendant had
obtained an order from this court granting her request to file a supplemental record, a subsequent
review of this record reveals that defendant was disingenuous in her representation as to one of
the documents contained therein. Specifically, defendant requested to file “the records from
Clear-Thomson-Reuters (as referenced in the Affidavit of Plaintiff’s Process Server), the
company utilized by Plaintiff-Appellant’s Process Server, to be included and filed as a
Supplement to the Record on Appeal. See Affidavit of Mark Skrzydlak[.]” The document filed in
the supplemental record, however, was not the Clear-Thomson-Reuters report utilized by
plaintiff’s process server, but one requested by defendant and received by her on October 4,
2019. As the motion to quash was denied in July 2019, defendant’s Clear-Thomson-Reuters
- 12 -
1-19-1468
report was never part of the circuit court record and was thus never examined by the circuit
court. Accordingly, we will not consider this document on appeal and strike it from the appellate
record. See Kildeer-Countryside School District No. 96 v. Board of Trustees of the Teachers’
Retirement System, 2012 IL App (4th) 110843, ¶ 21.
¶ 31 We also seriously doubt that the Village of Dolton certificate of rental occupancy for the
subject property (which was included by defendant in the supplemental record) was before the
circuit court. First, defendant does not mention the certificate of rental occupancy in her reply,
plaintiff does not address it in its surreply, and the document was not discussed at the hearing on
the motion to quash. Second, in her motion to supplement the record on appeal, defendant asserts
that the certificate of rental occupancy was included as part of “Exhibit V” to her reply. A review
of the reply reveals that the exact contents of “Exhibit V” are not listed, only that it contains an
electric bill. Regardless of whether the certificate of rental occupancy was presented to the
circuit court, based on the record before us, we find any argument on appeal related to the
certificate of rental occupancy to be forfeited. See Olson v. Williams All Seasons Co., 2012 IL
App (2d) 110818, ¶ 41 (“An appellant who fails to raise an issue in the circuit court forfeits that
issue on appeal.”).
¶ 32 We now commence our examination of the legal merits of the case by addressing our
standard of review. Where, as here, the circuit court’s denial of a motion to quash service is
based on documentary evidence only, our review on appeal is de novo (Aurora Loan Services,
LLC v. Kmiecik, 2013 IL App (1st) 121700, ¶ 15); thus, we need not rely on the circuit court’s
reasoning in denying the motion to quash. Indeed, we may affirm the circuit court on any basis
that appears on the record. Banco Popular North America v. Gizynski, 2015 IL App (1st)
142871, ¶ 37 (“We may affirm on any basis appearing in the record, whether or not the trial court
- 13 -
1-19-1468
relied on that basis or its reasoning was correct.”). Based on our review of the record, service by
publication was proper and, therefore, the circuit court had personal jurisdiction over defendant
when it entered the judgment of foreclosure and the order confirming the sale.
¶ 33 It is well established that, “[t]o enter a valid judgment, a court must have both jurisdiction
over the subject matter and jurisdiction over the parties.” BAC Home Loans Servicing, LP v.
Mitchell, 2014 IL 116311, ¶ 17. A judgment entered without jurisdiction over the parties is void
and may be challenged at any time. Id. “Personal jurisdiction may be established either by
service of process in accordance with statutory requirements or by a party’s voluntary
submission to the court’s jurisdiction.” Id. ¶ 18.
¶ 34 “Service of process serves the dual purposes of protecting a defendant’s right to due
process by allowing proper notification and an opportunity to be heard ***.” Bank of New York
Mellon v. Karbowski, 2014 IL App (1st) 130112, ¶ 12. “Failure to effect service as required by
law deprives a court of jurisdiction over the person and any default judgment based on defective
service is void.” Id. “Specifically, a foreclosure judgment entered without service of process is
void.” Id.¶ 35 Section 2-206(a) of the Code (735 ILCS 5/2-206(a) (West 2018)) allows a plaintiff to
serve process on a defendant by publication in limited cases where the plaintiff has strictly
complied with the requirements for such service. Deutsche Bank National Trust Co. v. Brewer,
2012 IL App (1st) 111213, ¶ 18. The section provides, in relevant part:
“Whenever, in any action affecting property or status within the jurisdiction of the court,
including an action to obtain the specific performance, reformation, or rescission of a
contract for the conveyance of land, 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
- 14 -
1-19-1468
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, 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 2018).
¶ 36 The circuit court of Cook County has also adopted a local rule that further expands on the
requirement for the affidavit, particularly in mortgage foreclosure matters:
“Pursuant to 735 ILCS 5/2-206(a), due inquiry shall be made to find the
defendant(s) prior to service of summons by publication. In mortgage foreclosure cases,
all affidavits for 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 circumstances permit prior to
placing any service of summons by publication.” Cook County Cir. Ct. R. 7.3 (Oct. 1,
1996).
¶ 37 “Although the Code contemplates service by publication, our court long ago recognized
that such service is ‘an extraordinary means of serving notice—one unknown at common law’
and that, from the perspective of the person to be notified, it is the ‘least satisfactory method’ of
giving notice and ‘often it is no notice at all.’ ” Karbowski, 2014 IL App (1st) 130112, ¶ 13
(quoting Public Taxi Service, Inc. v. Ayrton, 15 Ill. App. 3d 706, 713 (1973)). Therefore, a party
defending notice by publication must demonstrate strict compliance with every requirement of
the statute, including due diligence and due inquiry. BankUnited v. Velcich, 2015 IL App (1st)
- 15 -
1-19-1468
132070, ¶ 30. “[T]hese 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.”
Bank of New York v. Unknown Heirs & Legatees, 369 Ill. App. 3d 472, 476 (2006). Accordingly,
before a plaintiff can conduct service by publication, the plaintiff must present an affidavit
stating a defendant cannot be located based on a diligent inquiry in ascertaining the defendant’s
residence and a due inquiry in ascertaining the defendant’s whereabouts. Citimortgage, Inc. v.
Cotton, 2012 IL App (1st) 102438, ¶ 18.
¶ 38 A defendant may challenge the plaintiff’s affidavit by filing an affidavit setting forth that
upon due inquiry, he or she could have been found. Id. The plaintiff may respond to the
defendant’s attestation either by successfully questioning the conclusory nature of the
defendant’s challenge or by producing evidence demonstrating in fact that the plaintiff made due
inquiry to locate the defendant so that process could be served upon him. Id.“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 due inquiry was made to locate the defendant.” Id. (citing First
Federal Savings & Loan Ass’n of Chicago v. Brown, 74 Ill. App. 3d 901, 907-08 (1979)).
¶ 39 Rule 191(a)
¶ 40 In the case at bar, defendant argues that plaintiff failed to establish that it had conducted
either due inquiry or due diligence, noting that plaintiff made no attempt to serve her at her
Drexel Boulevard address despite this address appearing in her 2015 mortgage foreclosure case,
the marriage dissolution proceedings, the utility bills attached to her reply, her voter registration
- 16 -
1-19-1468
records, and her driver’s licenses.
¶ 41 In response, plaintiff renews its argument before the circuit court that defendant’s
affidavit is insufficient under Rule 191(a) and thus no foundation has been laid for these
documents and they are not properly authenticated.
¶ 42 We generally agree with plaintiff. Rule 191(a) provides, inter alia, that affidavits
submitted in connection with a motion to contest jurisdiction over the person, as provided by
section 2-301 of the Code (735 ILCS 5/2-301 (West 2018)), shall be made on the personal
knowledge of the affiants; set forth with particularity the facts upon which the claim,
counterclaim, or defense is based; have attached thereto sworn or certified copies of all
documents upon which the affiant relies; consist of facts admissible in evidence, not conclusions;
and affirmatively show that the affiant, if sworn as a witness, can testify competently thereto. Ill.
S. Ct. R. 191(a) (eff. Jan. 4, 2013); see also La Salle National Bank of Chicago v. Akande, 235
Ill. App. 3d 53, 61 (1992); Robidoux v. Oliphant, 201 Ill. 2d 324, 339 (2002) (the plain language
of Rule 191(a) “clearly requires” that sworn or certified copies of all papers upon which the
affiant relies upon must “be attached to the affidavit” and that failure to do so renders the
affidavit insufficient under that rule).
¶ 43 Here, without the attestation that the documents attached to defendant’s pleadings are
sworn or certified copies, the circuit court was limited in its ability to determine whether it was
“presented with valid evidentiary facts upon which to base a decision.” (Internal quotation marks
omitted.) Robidoux, 201 Ill. 2d at 336. We acknowledge, however, that some of the documents
(the judgment of dissolution and the voter registration information) were certified copies. In
addition, we can take judicial notice of our circuit court dockets, which, in this case, would
include the 2015 mortgage foreclosure litigation. Moreover, certain documents attached were
- 17 -
1-19-1468
within defendant’s personal knowledge, and if called to testify, she would likely have been able
to provide the sufficient foundation for their admission (i.e., her driver’s licenses). Accordingly,
we decline to affirm the judgment of the circuit court solely based on defendant’s failure to
comply with Rule 191(a).
¶ 44 Due Diligence and Inquiry
¶ 45 Even considering the documents attached to defendant’s motion and reply, we agree with
the circuit court’s determination that plaintiff has established due diligence and inquiry into
defendant’s whereabouts. In this case, plaintiff’s process servers went to six different addresses
and made 15 attempts to serve defendant. See Velcich, 2015 IL App (1st) 132070, ¶ 33 (finding
the plaintiff demonstrated diligent inquiry where the process servers made 14 attempts at service
upon the defendant at five different addresses). Ten of those attempts were made at defendant’s
admitted place of business. While defendant maintains that the process server’s affidavit was
insufficient where he did not obtain the name of the receptionist he spoke with and merely
accepted the statement that it was a “virtual office,” we cannot agree that this serves to
undermine his diligent efforts in attempting service at this location. See id. We further note that
defendant’s argument is speculative where defendant did not produce a counteraffidavit of the
receptionist indicating that these service attempts were not made and her own counteraffidavit
setting forth the times when she could have been found at her workplace. See People ex rel.
Waller v. Harrison, 348 Ill. App. 3d 976, 981-82 (2004) (under section 2-206 of the Code
“courts require a defendant challenging service to file a counteraffidavit stating that upon
reasonable inquiry he or she could have been found”). Indeed, defendant merely attests that she
“work[s] out of [her] home at the address of 401 South [sic] Michigan, Suite 1200, Chicago,
Illinois. I have worked out of this address since 2016.”
- 18 -
1-19-1468
¶ 46 The process server also attempted service at the subject property address where she spoke
with two tenants and examined the names on the mailboxes. This inquiry revealed that defendant
did not reside there. While defendant presented affidavits of three of the tenants in the building
who attested that they were never approached by a process server, those three tenants resided in
two out of the four units of the subject property. Thus, it is possible that the process server spoke
with the other tenants and not those who provided the affidavits. Consequently, defendant’s
tenant affidavits do not call into question the attestations of the process server.
¶ 47 Plaintiff’s process servers also went to addresses on Ring Road, Luella Avenue, and 901
N. Michigan Avenue. Ring Road was determined to be a post office, the 901 N. Michigan
Avenue address turned out to not exist, and the Luella Avenue address was found to be owned by
defendant, but the tenant did not know where to locate defendant.
¶ 48 After attempting service at these six locations, plaintiff had its process server execute the
local rule 7.3 affidavit (as detailed in the facts section above). According to the process server,
his search revealed defendant’s last known address as being that of the subject property. The
local rule 7.3 affidavit went on to indicate that the process server performed a search of the
Clear-Thomson-Reuters private database that “utilizes thousands of different public records
databases and other resources” and no other addresses than those where service was attempted
were found to be associated with defendant. Our case law is clear that a search for defendant
need only consist of a “well-directed effort to ascertain the whereabouts of defendant by inquiry
‘as full as circumstances permit.’ ” JPMorgan Chase Bank, National Ass’n v. Ivanov, 2014 IL
App (1st) 133553, ¶ 50 (quoting Bank of New York, 369 Ill. App. 3d at 476). Such an effort was
put forth in this case.
¶ 49 Defendant argues, however, that plaintiff failed to establish that it had conducted either
- 19 -
1-19-1468
due inquiry or due diligence, pointing to the fact that she could have been found at the Drexel
Boulevard address and served there. Specifically, plaintiff points to the evidence she presented to
the circuit court (divorce proceedings, utility bills, driver’s licenses, voter registration, and loan
modification application) as demonstrating her Drexel Boulevard residence. She further notes
that plaintiff should have known she also goes by “Hosanna Mahaley” and that a search under
that name would have revealed the Drexel Boulevard residence.
¶ 50 Here, we cannot find that plaintiff engaged in a “casual, routine, or spiritless” effort to
comply with the statutory requirements. Bank of New York, 369 Ill. App. 3d at 476. Plaintiff’s
local rule 7.3 affidavit provided that the process server searched for defendant by her name as
listed on the mortgage documents, “Hosanna Jones.” Defendant offers no evidence or case law to
support her position that the process server should have searched for her under a name other than
the one listed in the complaint and attached exhibits. 5 Indeed, although the judgment of
dissolution does indicate that defendant was granted leave to change her name to “Hosanna
Mahaley,” the certification stamp on the document is dated July 26, 2018. The process server’s
section 2-206 and local rule 7.3 affidavits are dated July 20, 2018. Accordingly, the judgment of
dissolution does not serve to establish defendant’s name was anything other than “Hosanna
Jones” at the time service was attempted.
¶ 51 The utility bills also do not serve to undermine plaintiff’s diligence in service of process.
The People’s Gas bill was in the name of “Hosanna Johnson” not “Hosanna Jones.” The ComEd
and the City of Chicago water bills were sent to defendant under two different names (“Hosanna
Mahaley” and “Hosanna Jones”) at the Ring Road address—where service of process was
attempted. The fact that defendant had her bills mailed to Ring Road indicates she was not
5
We further observe that the judgment of dissolution of marriage included in the record does not
contain a judge’s signature and stamp.
- 20 -
1-19-1468
receiving this mail at the Drexel Boulevard address.
¶ 52 The loan modification application, social security card, and the quitclaim deed as relied
upon by defendant similarly fail to demonstrate she could have been found at the Drexel
Boulevard address. A review of these documents reveals that they are dated after service of
process was attempted and therefore were not discoverable by the process server when he
executed the affidavits. Accordingly, they are irrelevant to our analysis.
¶ 53 Defendant’s driver’s licenses do indicate that her address is at Drexel Boulevard.
However, the license in effect at the time of service of process was in the name of “Hosanna
Mahaley Jones.” As indicated by the process server, a search of possible driver’s licenses under
the name “Hosanna Jones” revealed “no recent viable new address outside of attempted
addresses.” As previously discussed, we cannot say that the process server lacked the required
diligence in his search of defendant where he utilized the defendant’s name as it appears in the
complaint and supporting exhibits.
¶ 54 Regarding defendant’s voter registration information, we agree with the circuit court that
the fact the driver’s license number associated with the registration does not match either of the
driver’s licenses provided by defendant raises more questions than answers. Regardless, the voter
registration information is under “Hosanna Jones” for the Drexel Boulevard address and was in
effect at the time of service of process. Defendant argues that this document refutes the process
server’s affidavit where the process server had averred that he searched possible voter
registrations and no recent viable new address outside of the attempted addresses were found.
We decline to find that this presents a “significant issue with respect to the truthfulness of the
affidavit.” (Emphasis added.) Cotton, 2012 IL App (1st) 102438, ¶ 18. The process server here
attested to a wide search for defendant and visited six different properties looking for defendant.
- 21 -
1-19-1468
¶ 55 Nonetheless, defendant relies too heavily on the driver’s license evidence and thereby
misconstrues the legal standard for service by publication—“where plaintiff resided at the time
of service is not at issue, rather whether plaintiff diligently attempted to serve defendant is the
issue.” TCF National Bank v. Richards, 2016 IL App (1st) 152083, ¶ 34. The law “does not
require a specific number of attempts or unduly exhaustive efforts to locate the whereabouts of a
defendant” prior to service by publication. Ivanov, 2014 IL App (1st) 133553, ¶ 55. Indeed,
service by publication will only be overturned where plaintiff’s efforts to discover a defendant’s
whereabouts are “casual, routine, or spiritless.” (Internal quotation marks omitted.)
Neighborhood Lending Services, Inc. v. Griffin, 2018 IL App (1st) 162855, ¶ 21. As previously
discussed, plaintiff has demonstrated the diligence required under section 2-206 and local rule
7.3.
¶ 56 In sum, the question here is whether plaintiff diligently attempted to find defendant and
serve her personally. See 735 ILCS 5/2-206(a) (West 2018). Our review of the record
demonstrates that plaintiff made “an honest and well-directed effort to ascertain the whereabouts
of a defendant by inquiry as full as circumstances permit[ted].” Bank of New York, 369 Ill. App.
3d at 476. After 15 attempts of service at six different addresses—including 10 attempts at
defendant’s office where she admits she could have been found—plaintiff served defendant by
publication. These were not casual, routine, or spiritless attempts, and we thus conclude that the
circuit court properly denied the motion to quash service by publication.
¶ 57 Evidentiary Hearing
¶ 58 In addition, defendant asserts the circuit court should have conducted an evidentiary
hearing on her motion to quash. As previously discussed, however, an evidentiary hearing is
warranted only “[i]f the defendant is able to present a significant issue with respect to the
- 22 -
1-19-1468
truthfulness of the affidavit filed by the plaintiff’s agent for service by publication.” Cotton, 2012
IL App (1st) 102438, ¶ 18 (citing Brown, 74 Ill. App. 3d at 907-08). Defendant here has failed to
present a significant issue with respect to the truthfulness of plaintiff’s affidavits, and thus, the
circuit court did not err in declining to conduct an evidentiary hearing.
¶ 59 CONCLUSION
¶ 60 For the reasons set forth above, the judgment of the circuit court of Cook County is
affirmed.
¶ 61 Affirmed.
- 23 -
1-19-1468
No. 1-19-1468
Cite as: Deephaven Mortgage LLC v. Jones, 2020 IL App (1st) 191468Decision Under Review: Appeal from the Circuit Court of Cook County, No. 18-CH-
7553; the Hon. Edward N. Robles, Judge, presiding.
Attorneys Hosanna Jones, of Chicago, appellant pro se.
for
Appellant:
Attorneys Adam A. Price, of Codilis & Associates, P.C., of Burr Ridge, for
for appellee.
Appellee:
- 24 -