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Central Mortgage Company v. Levan Kamarauli and Valeria Mourzaeva

November 5, 2012

CENTRAL MORTGAGE COMPANY,
PLAINTIFF-APPELLEE,
v.
LEVAN KAMARAULI AND VALERIA MOURZAEVA,
DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County. No. 10 CH 11550 Honorable Jean Prendergast Rooney, Judge Presiding.

The opinion of the court was delivered by: Justice Karnezis

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

Presiding Justice Hoffman and Justice Rochford concurred in the judgment and opinion.

OPINION

¶ 1 In this mortgage foreclosure action, defendants Levan Kamarauli and Valeria Mourzaeva appeal from orders of the circuit court denying their motion to quash service of process and their motion to reconsider that ruling, and from the order approving the sale and granting possession of their residential property to plaintiff, Central Mortgage Company. On appeal, defendants contend that the court erred when it denied their motion to quash service because abode service was not properly attained where the family member who accepted service at their home did not live in their household. Defendants further argue that service was not proper because the process server mailed only one copy of the summons and complaint in an envelope addressed to both defendants, rather than separately mailing each defendant individual copies of the summons. Defendants claim that due to the improper service, the circuit court lacked personal jurisdiction over them. We affirm.

¶ 2 Documents in the record show that in September 2008, defendants obtained a mortgage in the amount of $255,000 for the residential property located at 167 Shadow Bend Drive in Wheeling, Illinois. In March 2010, plaintiff filed a complaint against defendants in the circuit court of Cook County to foreclose on that mortgage, alleging defendants defaulted on the mortgage in March 2009.

¶ 3 Special process server Daniel Marco submitted two sworn affidavits indicating he served process on each defendant on March 24, 2010, by means of substitute service at defendants' residence. In the first affidavit, Marco stated that he served defendant Kamarauli by leaving copies of the summons and complaint at the subject address with Anna Mourzaeva, Kamarauli's mother-in-law. Marco stated that Anna resided at the address, confirmed that Kamarauli also resided there, and informed Anna of the contents of the documents. In addition, Marco averred that he mailed a copy of the process in a sealed envelope addressed to Kamarauli at the subject address on March 29, 2010. The second affidavit was substantially the same as the first, substituting Mourzaeva's name as the defendant. Again, Marco stated that he left a copy of the process with Mourzaeva's mother, Anna, and that he mailed a copy of the documents in a sealed envelope addressed to Mourzaeva at the subject address.

¶ 4 On August 26, 2010, the circuit court entered an order finding defendants in default. The court also entered a judgment for foreclosure and sale of the subject property. The property was sold to plaintiff on October 27, 2010. Plaintiff subsequently filed a motion for an order approving the sale of the property and for possession.

¶ 5 On January 7, 2011, defendants entered their appearance in this case together with a motion to quash service. In their motion, defendants argued that service for them on Anna Mourzaeva was not proper because, although Anna was their mother/mother-in-law, she was not a member of their household, as required by section 2-203 of the Illinois Code of Civil Procedure (the Code) (735 ILCS 5/2-203 (West 2010)). Defendants attached four affidavits to their motion to quash, one from each defendant, one from Anna, and one from Alexander Murzaev, Anna's husband. Each affiant averred that Anna was not a member of defendants' household and did not live at the subject address but, rather, lived in Gurnee, Illinois, with her husband. The defendants also swore that they were never served with the summons and complaint in this case.

¶ 6 In response to defendants' motion to quash, plaintiff argued that defendants' uncorroborated, self-serving affidavits did not overcome the presumption that plaintiff's affidavits of service were valid. Plaintiff argued that the process server's return of service was prima facie proof that the service was valid. Plaintiff pointed out that Anna had confirmed that she resided at the subject property. Attached to plaintiff's response was a supplemental affidavit of service from process server Marco. Therein, Marco stated that when he served process on Anna at the subject address, she informed him that she was Mourzaeva's mother and Kamarauli's mother-in-law, and that she resided at the property. Marco further stated that Anna signed his field notes indicating that she received the copies of the summons and complaint, and confirming that she resided at the subject property. In addition, Marco stated that he mailed a copy of the summons and complaint in a sealed envelope "addressed to Levan Kamarauli and Valerie Mourzaeva" at the subject address. Marco attached a copy of his field notes to his affidavit. On the bottom of Marco's field notes is Anna Mourzaeva's signature directly above a statement that reads "I acknowledge receipt of these papers and confirm that I reside at this household."

¶ 7 In their reply to plaintiff's response, defendants maintained that Anna was not a member of their household. Defendants also noted that in the supplemental affidavit, Marco stated that he mailed them "a copy" of the summons and complaint. Defendants argued that because there were two defendants, Marco was required to mail two copies, and his affidavit shows that he did not comply with that requirement.

¶ 8 On March 30, 2011, the circuit court denied defendants' motion to quash service. The order merely states the motion was denied and does not state the court's reasons for its ruling.

¶ 9 Defendants filed a motion to reconsider arguing that, even if the court believed service on Anna was proper, the process server failed to comply with the mailing requirement of section 2-203 of the Code because his affidavit shows he mailed only one copy of the summons to the defendants, rather than a separate copy to each defendant. The circuit court denied defendants' motion to reconsider, again without stating its rationale in the written order.

ΒΆ 10 On April 8, 2011, plaintiff refiled its motion for an order approving the report of sale and distribution of the subject property, and an order for possession. Defendants subsequently filed a "Response to Motion to Confirm In the Nature of a Motion to Quash." Therein, they solely asserted that service against one of them must be quashed because the process server mailed only one copy of the summons and complaint. Plaintiff submitted a reply arguing that defendants' response was improper because they raised the same issue previously presented in their motion to quash and motion to reconsider, effectively making their response a second motion to reconsider the denial of their motion to quash. Plaintiff further argued that Marco's original affidavits of service demonstrated that he mailed separate copies of the summons and complaint to each defendant. Attached to its reply, plaintiff submitted an amended supplemental affidavit of service from Marco. Therein, Marco stated in ...


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