Bank of New York Mellon v. Karbowski (IL)

Summary: A 50-day delay between mortgagee's execution of an affidavit and the filing of its motion to allow service by publication of its foreclosure action renders the ensuring publication insufficient to confer personal jurisdiction over the mortgagor.


Bank of New York Mellon v. Karbowski, 2014 IL App (1st) 130112.


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Facts:  Bank of New York Mellon (‘BNY’) filed a complaint to foreclose a mortgage on a condominium owned by Krzysztof Karbowski (‘Karbowski’). For several months BNY made several attempts to serve Karbowski, both at the address of the property pending foreclosure and elsewhere. On November 3, 2009, BNY filed an affidavit for service by publication, detailing the efforts it made to locate and serve Karbowski. Although the affidavit was signed and sworn to on September 14, 2009, it recited efforts to locate Karbowski as late as September 23 and October 28, 2009. It also attached the process server's affidavit referring to efforts to serve Karbowski as late as October 17.

The trial court granted BNY’s motion to serve Karbowski by publication and notice was subsequently published. A copy of the notice was mailed by the clerk of the circuit court to Karbowski at the address of the property pending foreclosure, but was returned as undeliverable. Karbowski did not appear. The court subsequently issued a judgment of foreclosure.

Notice of the property sale was sent to Karbowski’s Chicago and Northfield addresses. However, the sale was postponed and rescheduled. Prior to the sale, Karbowski filed an appearance and a motion to quash service alleging defects in the affidavit supporting the motion for service by publication. The trial court denied the motion and confirmed the sale. Karbowski appealed.


Holding: Reversed and Remanded. On appeal, Karbowski argued (1) BNY’s affidavit erred by listing his last known address as the foreclosed Chicago property instead of the Northfield address which required reversal, and (2) the affidavit relied on by BNY supporting its motion for service by publication was stale, having been executed 50 days prior to the filing of the Bank's motion.

Addressing Karbowski’s first argument, the appellate court held that under the facts, Karbowski improperly challenged the accuracy of the representation of his last known address, because he failed to provide the court with competent evidence substantiating the claimed error. The notice provisions of the mortgage designated the address of the foreclosed property as Karbowski’s notice address. As such, unless Karbowski designated a substitute notice to BNY informing it of the change of address, service upon the foreclosed property address was valid. Further, Karbowski's motion to quash did not represent where he lived as it failed to provide his Northfield address. Therefore, there was insufficient basis for challenging service by publication.

Concerning Karbowski’s second argument, the court held that BNY’s motion to serve by publication did not strictly comply with the requirements of 735 ILCS 5/2-206 (Service by publication; affidavit; mailing; certificate). Therefore, the publication notice authorized by the trial court was insufficient to confer personal jurisdiction over Karbowski and the subsequent orders based on that service were void. The court found that affidavits attesting to attempted service did not demonstrate due diligence under § 2-206 when a substantial period of time elapsed between executing and filing the affidavit, and filing the motion to serve by publication. More specifically, the 50 day delay between executing the affidavit and filing it, considering modern technology, was inexcusable when a 20 day limit was imposed for service delivered by horseman in the 1800s. Further, the court noted that the dates of attempted service provided within the affidavit were later than the date of the notary’s seal. Consequently, the court had no way of knowing the correct date the affidavit was executed and notarized. The order denying Karbowski's motion to quash was reversed and the judgment of foreclosure and order confirming the sale vacated.


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By: ATG Underwriting Department | Posted on: Tue, 07/07/2015 - 1:03pm