Private process server need does need to be appointed by court to serve process in Cook County if the suit was filed in a different county

At issue in Municipal Trust and Savings Bank v. Moriarty, et al. 2020 IL App (3d) 190016 (May 4, 2020) was whether the defendant-mortgagor in a foreclosure action was properly served such that a foreclosure judgment was void for lack of jurisdiction. The appellate court affirmed the ruling of the trial court that the mortgagor had been properly served, even though the private process server had not been appointed by the court in the county where the mortgagor was served.

The foreclosure was filed Kankakee County Illinois but the mortgagor lived in Chicago and this is where the private process server server served him. Following the final judgment in the foreclosure, the mortgagor petitioned to vacate it claiming it was void because he had not been properly served.

The Illinois’ rule regarding service of process, Rule 2-202(a) of the Civil Practice Act, requires that if the person is located in a county of more than two million people, he can be served by a sheriff or a private person by appointment of the court. “In counties” of less than two million people special appointment is not needed. Since the mortgagor was located in Cook County, which has over two millions people, and the private process server had not been specially appointed, he contended service was improper.

The court noted that the mortgagor read the rule out of context. And read out of context the rule was ambiguous, in cases like this, where the summons was issued in a county with a population less than 2,000,000 but personally served on a person in Cook County. The term “in counties”, in sub-section 2-202(a), could be read to mean either the location at which the defendant is served or the venue where the case is pending and the summons issued. Both interpretations are reasonable, but when construed along with the next section, sub-section 2-202(b), there is only one reasonable interpretation. That subsection empowers “any person authorized to serve process” to do so on “defendants wherever they may be found in the State.” Subsection 2-202(b) has no limitation.

The court observed that the mortgagor’s position was unreasonable and insupportable for it would create an inconvenience. Plaintiffs would have to determine whether a defendant is presently or temporarily located in Cook County before issuing a summons—even if defendant’s residence is in a county not requiring special appointment. It also defies logic. Why would the legislature provide broad authority to “serve defendants wherever they may be found in this state” if it intended to limit this authority based on the population of the county where defendant is located at the time of service? Clearly, it did not do that. When read with subsection 2-202(b), subsection 2-202(a) “governs who may serve process in Illinois.”

The court’s holding therefore is that a private process server may serve process, “without special appointment,” anywhere in the state so long as the summons was issued from a county “with a population less than 2,000,000.”

The court noted that its decision conflicts directly with a decision from another district, whose reasoning it found “unpersuasive”. There was also a concurring opinion which disagreed with the majority’s statutory analysis and proposed a third way. In order for a private process server to serve process in Cook County, without receiving special appointment by the court, there must be a showing that the party requesting the summons engaged in a reasonable search to ascertain if the party to be served is in Cook County and could not locate him.


  • James Noonan

    Jim is a founding partner of Noonan & Lieberman. Jim has more than 25 years of experience in civil litigation on behalf of creditors, servicers, business and real estate owners.

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