Defective Affidavit From The Process Server Does Not Preclude An Evidentiary On Whether The Process Server Took The Steps Necessary To Obtain Service By Publication

The underlying issue in Deutsche Bank Nat. Trust Co. v. Brewer, No. 1-11-1213 (Opinion filed May 9, 2012. Modified upon Denial of Rehearing, July 18, 2012) was whether a defective affidavit from the process server in a mortgage foreclosure action was proof in itself that service was not made and that jurisdiction was lacking. The trial court in that case permitted the mortgagee to serve process by publication. The statute requires that the mortgagee or its attorney submit an affidavit that on due notice and inquiry the mortgagor could not be found. Pursuant to the requirements of a local Cook County rule the mortgagor was also required to submit an affidavit by the individuals who tried to serve process on the defendant and ascertain her whereabouts. Those individuals must set[ ] forth with particularity the action they took to find and serve process on the defendant. The affidavits submitted by the mortgagee in accordance with the local rule said that 19 different attempts were made to serve the mortgagor, but the affidavits did not identify the persons who attempted service. When the mortgagor did not respond, the court entered a default judgment and ordered a judicial sale of mortgagor’s home. After the court approved the sale the mortgagor moved to quash contending that the process servers could have found her with reasonable efforts. The trial court denied the motion but the appellate court reversed. It focused on the affidavits submitted by the mortgagee and found that the affiant’s use of the passive voice to describe the attempts at service did not identify who actually performed the searches or service attempts. If he searched the databases himself, he should have said so. If he relies on the searches others performed as the due inquiry, the rule requires sworn affidavits from the individuals who searched the databases. Therefore, the mortgagee did not comply with the rule by presenting affidavits from the affiants who claimed to have taken the action. The court later modified its opinion to make clear that when jurisdiction is challenged based on an affidavit that did not comply with the local rule, a mortgagee is entitled to submit evidence that it took adequate steps to justify service by publication, even though it did not file affidavits showing that it took such steps. The case was therefore remanded to the trial court to hear evidence from the individuals who actually took such steps.

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