Mortgage Foreclosure - Bank Fails to Make Diligent Efforts To Serve Defendant - Default Judgment Reversed

CITIMORTGAGE, INC. v. Cotton, Ill: Appellate Court, 1st Dist., 2nd Div. 2012 - Google Scholar:

This is a mortgage foreclosure case in which Citimortgage was unable to serve the defendant and obtained service by publication.  On appeal, the court held that the bank failed to make diligent efforts to serve the defendant and the default judgment was reversed.

There are two standards that govern service - diligent inquiry and due inquiry.  The court explains the difference: "The 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 properly execute an affidavit stating that the defendant cannot be found. Bell Federal Savings & Loan Ass'n v. Horton, 59 Ill. App. 3d 923, 927-28, 376 N.E.2d 1029, 1033 (1978)."

Here, the bank failed to contact Cotton's attorney or attempt to reach Cotton at his job.  Thus, the bank may have failed to make "due inquiry."

After the judgment was entered, Cotton filed a motion for reconsideration, and a supporting affidavit, arguing that the bank's efforts to find him were lacking.

The case was remanded to the circuit court so that the court could conduct a hearing on what efforts the bank made.

Comment; the lesson here is that service by publication may be challenged.  Personal service is always the best idea.

Edward X. Clinton, Jr.

www.clintonlaw.net



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