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Citimortgage, Inc., Assignee of Mortgage Electric v. Ernest J. Cotton

August 28, 2012

CITIMORTGAGE, INC., ASSIGNEE OF MORTGAGE ELECTRIC
REGISTRATION SYSTEMS, INC., AS NOMINEE FOR IRWIN MORTGAGE CORPORATION,
PLAINTIFF-APPELLEE,
v.
ERNEST J. COTTON, DEFENDANT-APPELLANT, (MARQUETTE BANK, UNDER MORTGAGE RECORDED AS DOCUMENT NUMBER 0527147167; SOLAR SERVICE, INC., UNDER MECHANICS LIEN RECORDED AS DOCUMENT NUMBER 0620650042, AND UNDER MEMORANDUM OF JUDGMENT RECORDED AS DOCUMENT NUMBER 0732503162, MILDRED BARNETT AND BERTON N. RING, P.C., UNDER MEMORANDUM OF JUDGMENT RECORDED AS DOCUMENT NUMBER 0627622047, LESTER L. BARCLAY, UNDER MEMORANDUM OF JUDGMENT RECORDED AS DOCUMENT NUMBER 0834345071, NON-RECORD CLAIMANTS, UNKNOWN TENANTS AND UNKNOWN OWNERS,
DEFENDANTS).



Appeal from the Circuit Court of Cook County. No. 09 CH 24415 Honorable Thomas R. Mulroy, Jr. Judge Presiding.

The opinion of the court was delivered by: Justice Cunningham

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

Justices Connors and Harris concurred in the judgment and opinion.

OPINION

¶ 1 This appeal arises from an August 10, 2010 order entered by the circuit court of Cook County which denied defendant-appellant Ernest J. Cotton's (Ernest) motion to reconsider the denial of his motion to vacate the judgment of foreclosure and judicial sale and to quash service by publication. On appeal, Ernest argues that: (1) the circuit court lacked jurisdiction over him because the process servers were improperly appointed as a matter of law; (2) service of process was invalid because plaintiff-appellee Citimortgage, Inc. (Citimortgage), failed to conduct due inquiry in ascertaining his whereabouts; and (3) service of process is void because the affidavits of service were fraudulent and facially defective. For the following reasons, we reverse the ruling of the circuit court of Cook County and remand the matter for further proceedings.

¶ 2 BACKGROUND

¶ 3 On August 18, 2003, Ernest entered into a mortgage contract with Irwin Mortgage Corporation that secured a $183,207 loan on a five-unit apartment building at 8429 S. Paulina Street, Chicago, Illinois (main residence). The mortgage was later assigned to Citimortgage via Mortgage Electronic Registration Systems, Inc. On May 26, 2009, Citimortgage sent Ernest a letter confirming that Matthew R. Wildermuth (Wildermuth) had been granted a power of attorney on Ernest's mortgage account. On June 2, 2009, the circuit court of Cook County appointed Amicus Legal Services, Inc. (Amicus), and its employees as special process servers until August 31, 2009 under license number 117-001465. On July 20, 2009, Citimortgage filed a complaint to foreclose the mortgage, alleging that Ernest had defaulted on the mortgage agreement. Marquette Bank held a junior mortgage on the main residence and was also listed as a defendant in addition to Ernest.

¶ 4 Between July 25, 2009 and August 9, 2009, Charles Eskra, an employee of Amicus, unsuccessfully attempted to serve Ernest 10 times at the main residence. As a result, on August 13, 2009, Charles Eskra executed an affidavit that stated that there was no evidence that the main residence was vacant, and that a neighbor named Chanel Smith did not know of any Ernest Cotton. Charles Eskra's affidavit stated that after due search, careful inquiry, and diligent attempts, he was unable to serve Ernest at the main residence. Between August 12, 2009, and August 19, 2009, Don Eskra, also an employee of Amicus, unsuccessfully attempted to serve Ernest nine times at another known address: 8324 S. Paulina Street, Chicago, Illinois (alternate residence). On August 19, 2009, the circuit court appointed Firefly Legal, Inc. (Firefly), and its employees as special process servers under license number 117-001465, the same license number that was used to appoint Amicus. On August 21, 2009, Don Eskra executed an affidavit that stated that Ernest's name was not listed on the doorbells or mailboxes of the alternate residence, and there was no evidence that the alternate residence was vacant. Don Eskra's affidavit stated that after due search, careful inquiry, and diligent attempts, he was unable to serve Ernest at the alternate residence. On August 27, 2009, Amicus executed an affidavit indicating that Ernest had not been served.

¶ 5 On August 31, 2009, Citimortgage executed an affidavit in support of its motion for service by publication which stated that: upon due inquiry, Ernest could not be found; the main residence is the residence for Ernest and unknown tenants only; the alternate residence is the residence for Ernest only; and upon diligent inquiry, the last known place of residence for non-record claimants and unknown owners could not be ascertained. The trial court granted Citimortgage's motion. On September 2, 9, and 16, 2009, Citimortgage served Ernest by publication in the Chicago Daily Law Bulletin. On September 4, 2009, the clerk of the circuit court of Cook County mailed written notices of the pending action to Ernest at the main residence and alternate residence. On September 22, 2009, Marquette Bank filed an appearance.

¶ 6 On November 19, 2009, Citimortgage mailed copies of its motions requesting an order of default against Ernest and a judgment of foreclosure and order of sale to the tenants of the main residence and alternate residence. On November 25, 2009, the circuit court entered an order of default against Ernest for failure to answer or otherwise plead. The circuit court also entered a judgment of foreclosure and order of sale as to the main residence. On February 20, 2010, Citimortgage mailed copies of the notice of sale of the main residence to the occupants of the main residence and alternate residence. On March 4, 2010, Marquette Bank purchased the main residence.

¶ 7 On March 31, 2010, Ernest filed a motion in the circuit court of Cook County to vacate the judgment of foreclosure and judicial sale and to quash service by publication. In his motion, Ernest stated that he had no prior notice of the judicial sale due to Citimortgage's failure to conduct due diligence and reasonable inquiry. The motion also stated that Ernest's affidavit was attached to the motion. However, the record on appeal does not contain an affidavit attached to the motion. On April 1, 2010, Citimortgage filed a motion for confirmation of sale of the main residence. On May 7, 2010, Citimortgage filed a response to Ernest's motion to vacate the judgment of foreclosure and judicial sale and to quash service by publication.

¶ 8 On June 17, 2010, the trial court granted Ernest leave to file an affidavit. On June 22, 2010, Ernest filed an affidavit. In his affidavit, Ernest stated that Don Eskra incorrectly swore that Ernest's name was not listed on any of the doorbells at the alternate residence, when in fact Ernest's name appeared on two of the doorbells at the alternate residence. Ernest's affidavit also stated that Don Eskra incorrectly swore that Ernest's name was not on any of the mailboxes at the alternate residence; however, there is actually only one mailbox at the alternate residence. Ernest attached photographs of the alternate residence and affidavits of people who resided at the alternate residence to support his statements. Ernest's affidavit further stated that on August 2, 2009, one of the times that Charles Eskra swore he attempted service at the main residence, Ernest was at home at the main residence and engaged in a large birthday party which was being held in the yard of the residence. In his affidavit, Ernest claimed that the affidavits of Charles and Don Eskra (the Eskras) show a lack of due diligence in serving the summons and complaint, and that upon due inquiry, Ernest could have been located at either of his residences. Ernest also claimed that with an exercise of diligence, he could have been located through his attorney, Wildermuth, whose connection with Ernest was known by Citimortgage.

ΒΆ 9 On June 24, 2010, the circuit court heard oral arguments on Ernest's motion to vacate the judgment of foreclosure and judicial sale and to quash service by publication. Following argument, the circuit court denied Ernest's motion and entered an order confirming the sale of the main residence. On July 19, 2010, Ernest filed a motion to reconsider the denial of the motion to quash service by publication. In addition to the arguments presented in his motion to reconsider, Ernest requested an evidentiary hearing to determine whether Citimortgage executed due diligence in attempting to find and serve him. The court refused to grant Ernest the ...


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