Deutsche Bank National Trust Company v Brewer (IL)

Summary: The particularity required for affidavits under ILCS 5/2-206 requires a person to swear to the specific actions taken in the attempts to serve process.

Deutsche Bank National Trust Company v Brewer, 2012 IL App (1st) 111213, 974 NE2d 224, 362 Ill Dec 703 (1st D, 2012).

Facts: In consideration for a $262,000 loan, Denise Brewer (Brewer) executed a mortgage in favor of Security Financial Group. Deutsche Bank acquired Security Financial Group’s interest in the property, and subsequently filed a complaint for foreclosure against Brewer.

After several attempts to serve process, Deutsche Bank sought leave to serve process by publication. Deutsche filed an affidavit in which Don Eskra claimed he worked for a detective agency (Excel Innovations) that was appointed to serve process on Brewer. Eskra stated that several attempts were made and Brewer could not be served at the address. Eskra further stated that “on due inquiry” Brewer “cannot be found” and that the residences of Brewer “upon diligent inquiry... cannot be ascertained.” Eskra gave a document listing the dates and times that contact was attempted on Brewer. Based upon this, the court granted leave for the bank to publish notice in the Chicago Daily Law Bulletin informing Brewer of the lawsuit to foreclose. Brewer did not respond to the bulletin, and a default judgment for foreclosure was entered. Deutsche Bank purchased the property at the foreclosure sale and the court entered an order approving the sale and granting Deutsch Bank possession of the property.

Brewer moved to quash the summons and hold all later proceedings void for lack of jurisdiction. Brewer stated that she lived at the property in question and could have been contacted with reasonable efforts. Deutsche Bank responded by showing two faxes sent to its attorneys from Brewer which requested them to provide Brewer with reinstatement figures. The trial court denied the motion to quash. Brewer appealed.

Holding: Reversed and Remanded. Cook County adopted a rule which elaborates on the affidavit requirement of 735 ILCS 5/2-206 and requires that the individuals who tried to serve process on the defendant to set forth, with particularity, the actions taken. In the present case the affidavits used the passive voice without the affiant identifying what actions were taken. Because of this, the affidavits failed to meet the particularity requirement and therefore service by publication was improper. The appellate court further held that the faxes requesting reinstatement figures show that Brewer knew she was behind on her payments, not necessarily that she knew of the proceedings. For these reasons the holding was reversed and the case remanded for a hearing based upon what steps Eskra and the detective agency actually performed.

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By: ATG Underwriting Department | Posted on: Wed, 10/10/2012 - 3:59pm