Court of Appeals of Illinois, First District, First Division
Appeal from the Circuit Court of Cook County. No. 11 CH 28298. Honorable Darryl B. Simko, Judge Presiding.
The denial of defendant's emergency motion to quash service of process in the action to foreclose his mortgage was affirmed, since the affidavits used bye the process server to serve defendant were based on the affiant's personal knowledge and set out the specific actions taken to determine defendant's whereabouts for purposes of justifying service by publication pursuant to section 2-205(a) of the Code of Civil Procedure and a local circuit court rule and plaintiff did not improperly fail to state defendant's address in the affidavit for service by publication, since there was no evidence plaintiff knew where defendant resided.
For APPELLANT: Clinton J. Ind, of counsel, IND LAW LLC, Chicago, IL.
For APPELLEE: David C. Kluever, M. Reas Bowman, of counsel, Kluever & Platt, LLC, Chicago, IL.
JUSTICE HARRIS delivered the judgment of the court, with opinion. Presiding Justice Delort and Justice Connors concurred in the judgment and opinion.
[¶1] Plaintiff, BankUnited brought this mortgage foreclosure action against defendant,
Dino Velcich, who, along with codefendant Maria Nascimento, executed a promissory note with plaintiff secured by a mortgage on property commonly known as 2707 West Medill Avenue, in Chicago, Illinois. The circuit court entered an order of default and a judgment of foreclosure and sale. After the sale of the property, the circuit court entered an order confirming the sale. Within 30 days of the entry of the order of the confirmation of the sale, defendant appeared and filed an emergency motion to quash service, which the circuit court denied.
[¶2] Defendant raises two issues for our review: (1) whether the affidavits plaintiff relied upon to effectuate service of process upon him were based on the affiant's personal knowledge and sufficiently set forth the particular actions taken to serve him to satisfy section 2-206 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-206 (West 2010)) and local rule 7.3 (Cook Co. Cir. Ct. R. 7.3 (Oct. 1, 1996)); and (2) whether plaintiff's affidavit of service by publication speaks the truth and complies with section 2-206 of the Code (735 ILCS 5/2-206 (West 2010)) where plaintiff stated defendant's residence was unknown despite a diligent inquiry. We hold plaintiff's affidavits were based on the affiant's personal knowledge and set forth the specific actions taken to determine defendant's whereabouts to justify service by publication in accordance with section 2-206(a) of the Code and local rule 7.3. 735 ILCS 5/2-206(a) (West 2010); Cook Co. Cir. Ct. R. 7.3 (Oct. 1, 1996). We also hold that plaintiff did not improperly fail to state defendant's residence in its affidavit for service by publication because there is no evidence in the record that plaintiff knew where defendant resided.
[¶4] On May 24, 2013, the circuit court denied defendant's motion to quash service. On June 19, 2013, defendant timely appealed. Accordingly, this court has jurisdiction pursuant to Illinois Supreme Court Rules 301 and 303 governing appeals from final judgments entered below. Ill. S.Ct. R. 301 (eff. Feb. 1, 1994); R. 303 (eff. May 30, 2008).
[¶6] Defendant and codefendant Maria Nascimento executed a promissory note with plaintiff in the amount of $535,500. The note was secured by a mortgage on the property located at the common address of 2707 West Medill Avenue, in Chicago, Illinois. On August 10, 2011, plaintiff filed a complaint to foreclose the mortgage. Plaintiff hired a private detective agency, Firefly Legal, Inc., to locate and serve defendant.
[¶7] The record contains multiple affidavits from three Firefly Legal process servers describing their attempts to serve defendant. The process servers first attempted to serve defendant in August of 2011 at five different addresses, all located in Chicago. All of the affidavits are signed by the respective affiant and notarized. They also all state that " after due search, careful inquiry and diligent attempts *** I have been unable to effect process" before stating a reason why service was unsuccessful.
[¶8] In an affidavit notarized on August 26, 2011, process server Beth McMaster attested that on August 8, 2011, at 8:10 p.m., she ...