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JPMorgan Chase Bank, N.A. v. Ivanov

Court of Appeals of Illinois, First District, Fifth Division

September 26, 2014

JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, Plaintiff-Appellee,
v.
KONSTANTIN IVANOV, Defendant-Appellant

Page 1040

As Corrected.

Appeal from the Circuit Court of Cook County. No. 10 CH 022214. The Honorable David B. Atkins and Lisa A. Marino, Judges Presiding.

SYLLABUS

The trial court's order confirming the sale of defendant's condominium in mortgage foreclosure proceedings was reversed and service by publication was quashed, since plaintiff bank failed to comply with the statutory prerequisites for service by publication for purposes of obtaining personal jurisdiction over defendant, especially when defendant established that he could have been found and served at his condominium upon due inquiry; furthermore, the trial court erred in disregarding defendant's affidavits with respect to his continued occupancy of the condominium.

John D. Galarnyk, Sarah E. Allison, Andrew J. Cunniff, Kate L. Grahl, Galarnyk & Associates, Ltd., of Chicago, for Appellant.

Edward J. Lesniak, Susan M. Horner, Burke, Warren, MacKay & Serritella, P.C., of Chicago, for Appellee.

JUSTICE GORDON delivered the judgment of the court, with opinion. Presiding Justice Palmer and Justice Taylor concurred in the judgment and opinion.

OPINION

GORDON, JUSTICE.

Page 1041

[¶1] Defendant Konstantin Ivanov appeals the trial court's order confirming the sale of a condominium in a mortgage foreclosure action brought by plaintiff JPMorgan Chase Bank, National Association (the bank). On appeal, defendant claims: (1) that the trial court did not obtain personal jurisdiction over defendant by service by publication because plaintiff failed to meet the requirements of section 2-206(a) of the Illinois Code of Civil Procedure (735 ILCS 5/2-206(a) (West 2010)) and Rule 7.3 of the circuit court of Cook County (Cook Co. Cir. Ct. R. 7.3 (Oct. 1, 1996)) and (2) that the trial court failed to properly consider defendant's affidavits when ruling on his motion to quash service by publication and motion to reconsider. For the following reasons, we reverse.

[¶2] BACKGROUND

[¶3] I. Complaint to Foreclose

[¶4] On June 27, 2007, defendant borrowed $273,000 from the bank, secured by a mortgage on a condominium unit located at 1675 Mill Street Unit No. 202, Des Plaines, Illinois 60616.

[¶5] On May 25, 2010, Chase Home Finance, LLC,[1] filed a complaint to foreclose

Page 1042

the mortgage against defendant as the mortgagee under section 15-1208 of the Illinois Code of Civil Procedure (735 ILCS 5/15-1208 (West 2010)), alleging that defendant was in default in the amount of $272,802.57 in unpaid principal. Plaintiff also named River Mill Condominium Association and unknown owners and nonrecord claimants as defendants in order to terminate their interest in the mortgaged property.

[¶6] II. Service by Publication

[¶7] On February 17, 2010, the trial court entered an order appointing the following private detective agencies certified under the Private Detective, Private Alarm, Private Security, Fingerprint Vendor, and Locksmith Act of 2004 (225 ILCS 447/5-3 et seq. (West 2010)) as standing special process servers in cases filed by the bank's attorneys in the mortgage foreclosure section of the chancery division until May 31, 2010: (1) Pro-Vest, Inc., (2) Firefly Legal, Inc., (3) Amicus Professional Legal Services Inc., and (4) United Processing, Inc. On May 25, 2010, plaintiff filed a motion to appoint Pro-Vest, Inc., Firefly Legal, Inc., and United Processing, Inc., as special process servers pursuant to section 2-202 of the Illinois Code of Civil Procedure (735 ILCS 5/2-202 (West 2010)) in the case at bar.

[¶8] On June 11, 2010, plaintiff filed two affidavits to allow service by publication, alleging that it had tried three times over Memorial Day weekend to serve defendant without success. The record on appeal does not contain a motion by plaintiff moving the trial court to allow service by publication. However, it contains two affidavits to allow service by publication, both of which were filed by plaintiff on June 11, 2010.

[¶9] A. Attorney's First Affidavit

[¶10] The first affidavit was dated June 10, 2010, and entitled " Affidavit to Allow Service by Publication Pursuant to 735 ILCS 5/2-206." [2] It stated the following:

" [Bridget O'Neill], the undersigned attorney, on oath states as to Defendants:
Konstantin Ivanov
Unknown Owners and Nonrecord Claimants
1. Defendants reside or have gone out of this State, or on due inquiry cannot be found, or are concealed within this State, so that process cannot be served upon them.
2. Diligent inquiry has been made as to the whereabouts of all the aforesaid Defendants.
3. That upon diligent inquiry, the place of residence of the aforesaid Defendants cannot be ascertained and/or their last known place of residence is:
Konstantin Ivanov, 1675 Mill Street Unit #202 Des Plaines, IL 60016

Page 1043

Unknown Owners and Nonrecord Claimants, 1675 Mill Street Unit #202 Des Plaines, IL 60016[.]"

This affidavit did not specify what " diligent inquiry" had been made.

[¶11] B. Attorney's Second Affidavit

[¶12] The second affidavit was also dated June 10, 2010, and entitled " Affidavit to Allow Service by Publication Pursuant to Local Rule 7.3." [3] It stated the following:

" [Bridget O'Neill], the undersigned attorney, on oath states as to Konstantin Ivanov:
1. Konstantin Ivanov 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. Service upon Konstantin Ivanov has been attempted by United Processing, Inc., the Court Appointed Special Process Server (see exhibit B).
2. Diligent inquiry has been made as to the whereabouts of Konstantin Ivanov, (see exhibit A).
3. That upon diligent inquiry, the place of residence of Konstantin Ivanov cannot be ascertained and/or their last known place of residence is: 1675 Mill Street Unit #202 Des Plaines, IL 60016[.]"

This affidavit also did not specify what " diligent inquiry" had been made but it did attach two supporting affidavits as Exhibits A and B.

[¶13] The first affidavit, or exhibit A, is dated June 4, 2010, and is signed by Corey Fertel, a well-known owner of a process-serving company. Although Fertel signed the affidavit, the affidavit stated that an individual named Matt Cunningham recounted the actions that Fertel took to find defendant. The affidavit stated the following:

" Before me, the undersigned authority, this day, personally appeared, Matt Cunningham, who upon being first duly sworn, upon his/her oath, deposes and says:
'A diligent search and inquiry to discover the name and residence of Konstantin Ivanov was performed by the following acts set forth, as particularly as is known to Corey Fertel, below.'
After diligent search and inquiry by affiant, the residence of the subject person is unknown to affiant."

However, Fertel searched only for " new addresses or phone numbers" and " new results for the named defendant" in whitepages.com, local and federal prisons, " a private database that utilizes thousands of different public records databases and other resources," and the " SS Death Index." (Emphases added.) Fertel also performed the following searches to find " new" results for defendant's name: national phone directory, hunting licenses, " UCC" liens, voter registration, aircraft, boaters, and bankruptcies, among others. The following is a portion ...


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