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Deutsche Bank National Trust Company v. Denise Brewer

May 9, 2012

DEUTSCHE BANK NATIONAL TRUST COMPANY,
PLAINTIFF-APPELLEE,
v.
DENISE BREWER,
DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. 08 CH 25389 Honorable Pamela Gillespie, Judge Presiding.

The opinion of the court was delivered by: Justice Neville

JUSTICE NEVILLE delivered the judgment of the court, with opinion.

Presiding Justice Steele and Justice Murphy concurred in the judgment and opinion.

OPINION

¶ 1 The trial court in this mortgage foreclosure action permitted the plaintiff, Deutsche Bank National Trust Company, to serve process on the defendant, Denise Brewer, by publication. When the defendant did not respond, the court entered a default judgment and ordered a judicial sale of Brewer's home. The court then approved the sale of the home to Deutsche Bank. Brewer moved to quash the service of process by publication. The trial court denied the motion and Brewer now appeals.

¶ 2 Brewer argues that the trial court never acquired personal jurisdiction over her because Deutsche Bank did not meet the requirements for service by publication. Deutsche Bank counters that (1) section 15-1509 of the Code of Civil Procedure (the Code) (735 ILCS 5/15-1509 (West 2008)) precluded the court from granting Brewer any relief, even if the trial court lacked personal jurisdiction when it entered the judgment, and (2) Deutsche Bank met the requirements for service of process by publication.

¶ 3 We hold that section 15-1509 pertains only to valid judgments imposed by courts that have personal jurisdiction over the parties. Because Deutsche Bank presented no affidavits in which the affiant swore that he personally took the steps necessary for attempting to serve process on Brewer and for due inquiry into her whereabouts, we find that Deutsche Bank did not meet the requirements for service by publication. Therefore, we reverse the judgment of the trial court and remand for further proceedings consistent with this order.

¶ 4 BACKGROUND

¶ 5 In 2006, Security Financial Group loaned Brewer $262,000 in exchange for a mortgage on Brewer's home, a condominium in Chicago. Deutsche Bank, as trustee for GSAA Home Equity Trust 2006-15, acquired Security Financial's interest in the mortgaged property. On July 16, 2008, Deutsche Bank filed a complaint against Brewer and all others with any interest in the property, seeking to foreclose the mortgage.

¶ 6 In September 2008, Deutsche Bank sought leave to serve process on Brewer by publication. In an affidavit filed in support of the motion, Don Eskra swore that he worked for Excel Innovations, a detective agency appointed to serve process on Brewer. He listed 19 different times when he claimed someone attempted to serve process on Brewer at the mortgaged condominium between July 17, 2008, and August 17, 2008. He said Brewer "could not be served" at the address. In a separate affidavit, he asserted that "[a]ttempts were made" to serve Brewer at the condominium. Deutsche Bank's attorney signed an affidavit in which he swore Brewer and the unknown owners "on due inquiry cannot be found," and "[t]he places of residence of said defendants are not known to the plaintiff, and upon diligent inquiry said defendants' places of residence cannot be ascertained." Other affidavits listed more attempts to serve Brewer at other addresses.

¶ 7 In a document labeled "Affidavit to Allow Service by Publication Pursuant to Local Rule 7.3," another employee of Excel, Dennis McMaster, listed in one document the dates and times of all the claimed attempts to serve Brewer at all of the addresses. McMaster said, "it was discovered that no contact could be made" with Brewer at any of the addresses. McMaster added, "we attempted to locate the defendant by searching public, online and confidential databases *** [and] calling Directory Assistance."

¶ 8 In October 2008, the Chicago Daily Law Bulletin published a notice addressed to Brewer and all unknown owners, informing those who read the notice of the lawsuit to foreclose the mortgage. Brewer did not respond. In February 2009, the trial court entered a default judgment against Brewer on the complaint for foreclosure, and ordered a judicial sale of the property.

¶ 9 Deutsche Bank purchased the property for $110,000 at the judicial sale on April 12, 2010. On May 27, 2010, the court entered an order approving the sale and granting Deutsche Bank possession of the property.

ΒΆ 10 On July 8, 2010, Brewer moved to quash the summons and to declare the default judgment and all later proceedings void for lack of jurisdiction. She swore that she had lived at the mortgaged property, as her sole residence, since 1988. She added that the process servers could have found her there with reasonable ...


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