Due Inquiry Necessary Prior to Serving Notice of Foreclosure via Publication
A recent case, Citimortgage, Inc. v. Cotton, 2012 IL App (1st) 102438 (August 28, 2012), highlights the important of proper service on the defendant mortgagor in a foreclosure case. Mr. Cotton was a City of Chicago fireman who had a loan with CitiMortgage on a five-unit residential building in Chicago. The building went into foreclosure, and the process server hired by the lender attempted service on Mr. Cotton ten times at the building. He later filed an affidavit that he had attempted service ten times and was unable to serve Mr. Cotton. The bank had an alternate address for Mr. Cotton as well, also at an apartment building. Another process server eventually filed an affidavit that he had attempted to serve Mr. Cotton nine times at the alternate address, and was unable to serve him there either. Citimortgage then obtained permission from the court to serve the defendant via publication, and published in the Chicago Daily Law Bulletin. Some time thereafter, the building was foreclosed.
Subsequently, Mr. Cotton filed a motion to vacate the judgment, but the trial court denied it. Mr. Cotton then appealed. Among other things, he claimed that service by publication should be quashed because prior to notice by publication, the plaintiff must conduct due inquiry. Mr. Cotton claimed that while the bank may have been diligent (assuming that they did in fact attempt to serve him 19 times), they did not conduct due inquiry and did not even use the information they had readily available to them when attempting to serve him. For example, they knew where he was employed, but they did not try to serve him there. They knew who his attorney was, but they did not attempt to contact his attorney either. Mr. Cotton also presented affidavits from his neighbors, as well as visual evidence, contradicting the process servers’ affidavits that they had visited Mr. Cotton’s two known addresses.
Based on the evidence presented by Mr. Cotton, the appellate court stated that the trial court should have allowed a hearing on whether service by publication was proper, and remanded the case.
The moral of the story depends on who you are: If you’re a lender, make sure you conduct “due inquiry” prior to serving a mortgagor via publication. If you’re a homeowner who is being or has been foreclosed, you may have some rights if service was not proper.