The Illinois Supreme Court recently overturned a trial court order in a case filed outside of Cook County, dismissing a Cook County borrower’s petition challenging a foreclosure judgment as void for default of jurisdiction, finding that a licensed or registered private investigator cannot serve as a process in counties with a population of two million or more – such as Cook County – without a special appointment under 735 ILCS 5/2 -202.
A copy of the notice in Municipal trust and savings bank c. Moriarty is available at: Link to Opinion.
A mortgagee has filed a foreclosure action against a borrower in Kankakee County. The mortgagee served the borrower in Cook County without going to appoint a bailiff. The borrower did not appear, the trial court ruled that he had personal jurisdiction over the borrower and issued a foreclosure and sale judgment. The mortgagee was the successful bidder in the foreclosure sale and offered to confirm the sale.
The borrower attended the confirmation of the sale hearing and argued “he was not aware of the sale”. Despite this, the court of first instance upheld the sale.
The borrower then filed a motion for annulment of the foreclosure judgment for lack of personal jurisdiction arguing “that under article 2-202 of the [Illinois Code of Civil Procedure], a private bailiff cannot serve a defendant in Cook County without first being appointed by the circuit court.
The trial court dismissed the borrower’s petition and the appeals court upheld. This appeal to the Illinois Supreme Court followed.
The Illinois Supreme Court observed that the issue on appeal turned “on the correct interpretation of section 2-202”. The relevant part of Article 2-202 of the Code states, in the relevant part:
âPersons authorized to serve; Place of service; Failure to make the return. (a) Proceedings are served by a sheriff, or if the sheriff is disqualified, by a coroner of a county in the State. In cases where the county or state is an interested party, the proceedings may be served by a special investigator appointed by the county state attorney ***. A sheriff for a county with a population of less than 2,000,000 may employ civilian staff to serve the process. In counties with less than 2,000,000 inhabitants, the procedure can be carried out, without special appointment, by a person licensed or registered as a private investigator under the Private Investigators Act 2004, private alarms, private security, fingerprint vendors and locksmiths. ***. *** * * * (b) Summons may be served on defendants anywhere in the State by any person authorized to serve the proceedings. An officer can serve a subpoena in his official capacity outside his county, but the officer’s out-of-county mileage charges cannot be taxed as an expense. The person serving the procedure in a foreign country can make the return by mail.
735 ILCS 5 / 2-202 (a), (b).
The mortgagee argued that service on the borrower was appropriate because when you read the two subsections together, the correct interpretation is that the county where the lawsuit is filed, not the county where service takes place. , controls the authority of the processing agent. Thus, the restriction in subsection (a) which only permits service of proceedings in Cook County by a court-appointed private investigator should not apply.
The Illinois Supreme Court rejected the mortgagee’s interpretation because section 2-202 does not address where a complaint is filed. Instead, the plain language of the article relates to when a defendant is served with a proceeding.
Subsection (a) provides that in all counties except Cook County (which has a population of over two million) âthe procedure may be carried out, without special appointment, by a person entitled to ‘licensed or registered as a private investigator’. So, according to the Illinois Supreme Court, it follows that in order to serve a defendant with the aid of a private investigator in Cook County, the court must appoint a private bailiff.
In this case, because the mortgagee did not obtain an order appointing a bailiff to serve on the borrower in Cook County, service by the private investigator on the borrower was not “by a person authorized to serve a proceeding” as required by paragraph (b) and the service rendered to the borrower was not correct.
The Illinois Supreme Court recognized that it could be awkward to require the trial court to appoint a bailiff to serve an accused in Cook County, but “when the language of a law is clear, this tribunal is not free to read exceptions to it. that our legislator has not expressed and must give it effect as it is written.
Thus, because the mortgagee’s private investigator served the borrower in Cook County without the requisite order specifically appointing the private bailiff, the procedural service was flawed and the trial court did not personal jurisdiction over the borrower.
The mortgagee also argued that the trial court had jurisdiction over the borrower because he voluntarily appeared and submitted to the jurisdiction of the trial court during the request for confirmation of the hearing of sale. However, this waived the borrower’s objection to the jurisdiction of the court of first instance only prospectively. This “appearance did not retroactively validate the annulment” of the previous orders and the court of first instance was still not competent to pronounce the judgment of foreclosure.
Thus, the Illinois Supreme Court overturned and returned the case to the trial court for proceedings consistent with its decision.