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Bank of New York Mellon v. Karbowski

Court of Appeals of Illinois, First District, Third Division

May 28, 2014

THE BANK OF NEW YORK MELLON F/K/A THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS, CWALT, INC., ALTERNATIVE LOAN TRUST 2007-OA9 MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2007-OA9, Plaintiff-Appellee,
v.
KRZYSZTOF KARBOWSKI, Defendant-Appellant, and 1636 NORTH BOSWORTH CONDOMINIUM ASSOCIATION; BANK OF AMERICA; KRZYSZTOF KARBOWSKI; UNKOWN HEIRS AND LEGATEES OF KRZYSZTOF KARBOWSKI, IF ANY; UNKNOWN OWNERS AND NON RECORD CLAIMANTS, Defendants

Page 793

Appeal from the Circuit Court of Cook County. No. 09 CH 21523. Honorable Daniel Brennan, Judge Presiding.

SYLLABUS

In a mortgage foreclosure action, the trial court's judgment of foreclosure and the order confirming the foreclosure sale were vacated and the cause was remanded for further proceedings where plaintiff bank's motion to serve defendant by publication failed to strictly comply with the requirements of section 2-206 of the Code of Civil Procedure, and the absence of an explanation from the bank as to how its affidavit could be reliable in view of the 50-day delay between execution and filing did not constitute " strict compliance with every requirement of the statute" for purposes of section 2-206.

For Appellant: Stewart T. Kusper, Paul C. Mallon, Jr., of counsel, Kusper Law Group, Ltd. Chicago, Illinois.

For Appellee: Russell Wirbicki, James A. Meece, of counsel, The Wirbicki Law Group, LLC, Chicago, Illinois.

JUSTICE MASON delivered the judgment of the court with opinion. Presiding Justice Hyman and Justice Pucinski concurred in the judgment and opinion.

OPINION

MASON, JUSTICE

Page 794

Defendant-appellee, Krzysztof Karbowski, appeals from orders entered by the circuit court of Cook County denying his motion to quash service by publication, entering a judgment of foreclosure and confirming the foreclosure sale. Karbowski contends that the affidavit submitted by Bank of New York Mellon in support of its motion for leave to serve him by publication was not timely filed and was defective on its face and, therefore, his motion to quash service should have been granted. Karbowski further argues that because the circuit court did not acquire personal jurisdiction over him, its later orders entering a judgment of foreclosure and confirming the foreclosure sale are void and must be vacated. We agree and reverse.

BACKGROUND

On July 1, 2009, the Bank filed its complaint to foreclose a mortgage on a condominium owned by Karbowski and located at 1636 S. Bosworth, unit 4S in Chicago. Between July and September 2009, the Bank made dozens of attempts to serve Karbowski, both at the address of the property and elsewhere. Specifically, the Bank attempted to serve Karbowski at the property on July 7 and 23; at another address in Chicago on North Milwaukee Avenue on July 7, 23 and 30; at an address in Miami, Florida, on August 11; at 2201 Martin Lane in Northfield, Illinois, on August 14, 15, 16, 17, 18, 19, 20, 21, 22 and 23; and at various other locations in Chicago between October 9 and 17. According to the process server's affidavit, Karbowski's driver's license reflects the Florida address, he owns a vehicle registered to the address on North Milwaukee in Chicago and his social security number and credit file reflect the Northfield address. The affidavit also reflects that the process server was told that Karbowski did not reside in the condominium on Bosworth.

On November 3, 2009, the Bank filed an affidavit for service by publication detailing the efforts it had made to locate and serve Karbowski. Although the affidavit was, according to the notary's seal, signed and sworn to on September 14, 2009, it recited efforts to locate Karbowski on September 23 and October 28, 2009, and attached the process server's affidavit referring to efforts to serve Karbowski as late as October 17. The affidavit also recited that Karbowski's last known address was the address of the property on Bosworth.

The trial court granted the Bank's motion to serve Karbowski by publication and notice was thereafter published in the Chicago Daily Law Bulletin . A copy of the notice was mailed by the clerk of the circuit court to Karbowski at the Bosworth address, but was returned as undeliverable. When ...


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