Service by Publication is Enough to Foreclose You Out of Your Home
In a recent case, TCF National Bank v. Richards, 2016 IL App (1st) 152083 (October 28, 2016) Cook Co., 5th Div., the court determined that the bank’s service by publication, as opposed to service by sheriff or special process server, was sufficient service, and the defendant homeowner was properly foreclosed.
Of course, the decision was not made lightly. The bank filed for foreclosure in December of 2013. The bank’s counsel retained a special process server to attempt service on the homeowner. The special process server was unable to secure service on the homeowner. In January, the bank filed a affidavit of service by publication, and furnished four affidavits in support. The first affidavit was from the bank’s counsel, stating she had made diligent inquiry but could not track down the defendant. The other three affidavits were from three different special process servers, all employed by the company the bank’s counsel had hired to serve the defendant. All three special process servers provided details of how they attempted to track down the homeowner, but how they could not serve her. They provided the dates and times of attempted service, noted when the lights were on and when pets were around, tried calling her, and even checked various databases such as social security, voter registration, professional licenses, etc. Additionally, the plaintiff published notice in the Chicago Daily Law Bulletin three times.
The homeowner never appeared, and the court foreclosed the Property in May of 2014. Notice of the foreclosure judgment was mailed to the homeowner in May. Notice of judicial sale was sent to the homeowner on August 14, and the sale date was August 26th.
On August 26th, the homeowner appeared in court pro se and submitted an emergency motion to stay the sale. The court granted the motion over the bank’s objection. Later the homeowner presented a series of other motions, arguing, among other things, that the bank should not have tried to serve her over the holidays. The court did not agree with her arguments and the Property subsequently went to judicial sale in October 2014. The homeowner subsequently tried various legal maneuvers to get her home back, but lost. She then appealed.
In addition to service, other matters were raised in the appeal. But at the end of the day, the appeals court agreed with the trial court. Service was proper, and the homeowner was out of her home.