A Personal Deficiency Judgment May Be Entered Against A Mortgagee In Illinois Who Is Served By Abode Service

In Metrobank v. Cannatello (No. 11-0529, January 9, 2012), mortgagee brought a complaint to foreclose a mortgage and a personal deficiency against the mortgagor in case the foreclosure did not satisfy the judgment. The mortgagee served the summons and complaint on the mortgagor by way of abode service. When he failed to appear the trial court entered a default judgment of foreclosure and ordered the property sold to pay the judgment. The bid price was insufficient to pay the judgment resulting in a deficiency. The mortgagee then moved to confirm the sale and requested that a personal judgment be entered against the mortgagor for the deficiency. The trial court confirmed the foreclosure sale but refused the request for a deficiency judgment holding that under section 15-1508(e) of the Illinois Mortgage Foreclosure Law (IMFL) it can only enter a personal deficiency judgment against a person who is personally liable on the note if there has been personal service. Here, service was obtained via abode service which the trial court held did not qualify as personal service. In reversing the trial court’s decision, the First District Illinois Appellate Court observed that the IMFL requires that the manner of service of pleading be in accordance with the Code of Civil Procedure. It found that abode service, made in accordance with section 2-203 of the Code, was personal service for purposes of a deficiency. Recognizing that the Illinois Supreme Court recently clarified that a foreclosure action is a quasi in rem proceeding, a court hearing a foreclosure need only have personal jurisdiction over the defendant before the entry of a personal judgment. Abode service is sufficient to confer personal jurisdiction on the court over a defendant in any action in law or equity so abode service qualifies as personal service under section 1508(e) of IMFL. Because the there was personal service, it was wrong for the trial court to deny the mortgagee a deficiency judgment.