Citimortgage, Inc. v Cotton (IL)

Summary:  A plaintiff must conduct both “diligent inquiry” in ascertaining the defendant’s residence and “due inquiry” in ascertaining the defendant’s whereabouts before the plaintiff can motion for service by publication.

Citimortgage, Inc. v Cotton, 2012 IL App (1st) 102438 (1st Dist. 2012).

Go to full opinion.


Ernest Cotton (Cotton), owned property located at 8429 S. Paulina Street, Chicago Illinois (main residence), which secured an $183,207 loan, later assigned to Citimortgage via MERS. On May 26, 2009 Citimortgage sent Cotton a letter confirming that Matthew Wildermuth (Wildermuth) was granted a power of attorney on Cotton’s mortgage account. Shortly after, on June 2, 2009, the circuit court of Cook County appointed Amicus Legal Services, Inc. as special process servers until August 31, 2009. Alleging that Cotton defaulted on the loan agreement, Citimortgage filed a complaint to foreclose, with Marquette Bank listed as defendant in addition to Cotton.

Between July 25, 2009 and August 9, 2009, an employee of Amicus attempted to serve Cotton 10 times at the main residence without success, and executed an affidavit on August 13, 2009 that there was no evidence that the residence was vacant and that a neighbor did not know of any Ernest Cotton. This affidavit further stated that after due search, careful inquiry, and diligent attempts, he was unable to serve Cotton at the main address. Between August 12 2009, and August 19, 2009 another Amicus employee attempted nine times to serve Cotton at an alternate address; he too filed an affidavit stating his inability to serve Cotton at the alternate address on August 21, 2009. The circuit court appointed Firefly Legal, Inc. on August 19, 2009, as special process servers under the same license number used to appoint Amicus. On August 27, 2009, Amicus filed an affidavit stating that Cotton had not been served. The court granted Citimortgage’s motion to serve by publication, and on November 25, 2009, the circuit court entered an order of default against Cotton for failure to answer or otherwise plead and a judgment of foreclosure and order of sale.

On March 31, 2010, Cotton filed a motion to vacate the judgment and sale and to quash the service by publication stating that no notice was given because Citimortgage failed to conduct due diligence and reasonable inquiry. Cotton filed an affidavit on June 22, 2010, alleging that the process servers swore to incorrect facts in their affidavits. Cotton claims that this shows a lack of due diligence in serving the summons and complaint, and that upon due inquiry, he could have been found at either residence, and furthermore that he could have been reached through his attorney Wildermuth. Both Cotton’s request for an evidentiary hearing and his motion to reconsider were refused, and on August 19, 2010, Cotton filed this appeal.


Reversed and Remanded. Cotton presented three arguments to show that the circuit court lacked personal jurisdiction over him, making the circuit court’s judgments void. Cotton argued first, that service by publication was invalid because the process servers were improperly appointed as a matter of law by the court and if service by publication is defective, the circuit court did not have personal jurisdiction over him. To this argument the court said the service was not defective. Cotton argued that Amicus was not in existence at the time of the service, to which Citimortgage countered by stating Amicus became Firefly, but the court ruled that because there was nothing in the record to support the argument one way or another, the court assumed that the trial court acted in accordance with the statutory requirements.

Second, Cotton argued that service of process was invalid because Citimortgage failed to conduct due inquiry in ascertaining his whereabouts. The court looked to case law, which holds that, “if the defendant is able to present significant issue with respect to the truthfulness of the affidavit filed by the plaintiff’s agent for service by publication, then the trial court should hold an evidentiary hearing on the issue with the burden of proof being upon the plaintiff to establish that due inquiry was made to locate the defendant.” The appellate court found sufficient factual statements in Cotton’s affidavit which differed from Citimortgage’s assertions, suggesting conflicts potentially worthy of an evidentiary hearing. Cotton conceded that Citimortgage conducted diligent inquiry in its 19 attempts to serve him, but he argued Citimortgage’s failure to conduct “due inquiry” on several levels. Cotton cited the failure to locate him at his place of employment, which was included in his mortgage application; failure to investigate public records, including his divorce proceedings; and a failure to contact his attorney, who was known to Citimortgage.

For a plaintiff to properly execute an affidavit in support of its motion for service by publication, it must conduct both diligent inquiry and due inquiry. Due inquiry requires “an honest and well-directed effort to ascertain the whereabouts of a defendant by an inquiry as full as circumstances can permit.” Case law supports Cotton’s argument and the appellate court agreed that Cotton’s affidavit and substance of his motion for reconsideration provided sufficient facts to warrant an evidentiary hearing.

Lastly, Cotton argued that service of process should be void because the affidavits of service were fraudulent, and facially defective. The court made little examination of these arguments because they, “ha[d] no bearing on the propriety of an evidentiary hearing to any greater extent than the arguments already addressed,” regarding due inquiry.

Based on the analysis of Cotton’s second argument the court reversed and remanded the case to the circuit court for an evidentiary hearing to determine whether diligent inquiry and due inquiry were conducted prior to the court granting leave for service by publication.

Opinion Year: 
By: ATG Underwriting Department | Posted on: Thu, 12/06/2012 - 10:37am