Mortgages; Deeds

First Bank and Trust Company of O'Fallon, Illinois v King, 311 Ill App 3d 1053, 726 NE2d 621, 244 Ill Dec 646 (5th D 2000).

Facts: Janet King owned real estate mortgaged to First Bank and Trust (the Bank). The Bank filed a complaint for foreclosure and an affidavit for publication stating that it had made due inquiry but was unable to locate King for personal service of summons. A Notice of Publication of Notice of Foreclosure was published in the local paper for three consecutive weeks, but King failed to respond. Soon after, the circuit court entered a judgment of foreclosure and sale. Jurisdiction was based on the notice by publication. After publishing notice, a judicial sale was held and the Bank made the highest bid. The bid was the exact amount that King owed under the mortgage. The Circuit Court confirmed the sale and the Bank received a judicial deed. King sold the property after the judicial sale and sued the Bank, attempting to declare the foreclosure action and sale void. She argued that the court did not have personal jurisdiction over her because the Bank failed to exercise due diligence in locating and personally serving her before service by publication. The lower court rendered judgment for the Bank. King appealed.

Holding: Affirmed. Illinois law permits service by publication when a property owner cannot be located. 735 ILCS 5/2-206. The party must file affidavits showing that the owner "on due inquiry cannot be found." The owner can challenge by filing an affidavit showing that the owner could have been found. The party seeking foreclosure must then produce evidence that supports its claim that it did exercise due inquiry. The Bank filed affidavits supporting their claims that the Bank made repeated, unsuccessful attempts to contact King. The Bank hired a private investigator to go to the subject residence. The investigator signed an affidavit stating that he knocked on the door and looked in the windows finding no signs that the residence was occupied. There was no furniture or other items in the house and the investigator concluded that the house was vacant. King never filed an affidavit stating that she could be found upon "due inquiry." The only address on record for King was a Missouri post office box. The court concluded that her allegations that she could be located were conclusory and had no support. After title has passed in a foreclosure sale, parties cannot challenge the validity of the judicial deed; the only legal remedy is to make a claim in the proceeds of the judicial sale. 735 ILCS 5/15-1509. Since the Bank bid the exact amount that King owed on the mortgage, there were no proceeds from the sale for King to claim.

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