First Bank & Trust Co. of O'Fallon v. King

• Decision Date: 17 March 2000
• Docket Number: No. 5-99-0182.,5-99-0182.
• Parties: FIRST BANK AND TRUST COMPANY OF O'FALLON, ILLINOIS, Plaintiff-Appellee, v. Janet KING, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

726 N.E.2d 621

311 Ill. App.3d 1053

244 Ill.Dec. 646

FIRST BANK AND TRUST COMPANY OF O'FALLON, ILLINOIS, Plaintiff-Appellee, v. Janet KING, Defendant-Appellant.

No. 5-99-0182.

Appellate Court of Illinois, Fifth District.

Rule , 2000.

Motion to Publish Granted March 17, 2000.

Opinion Filed March 17, 2000.

Thomas Benedick, O'Fallon, Attorney for Appellant.

Chadwick A. Kasten, O'Fallon, Attorney for Appellee.

Justice MAAG delivered the opinion of the court:

This action arose out of the circuit court's February 9, 1999, order granting summary judgment in favor of First Bank & Trust Company of O'Fallon, Illinois (Bank), plaintiff-appellee, against Janet King, defendant-appellant. In that same order, the circuit court denied King's motion to clarify the circuit court's November 24, 1998, order.

The relevant facts are as follows. King was the owner of real estate located in St. Clair County. The Bank held a mortgage on that same property. On September 5, 1997, the Bank filed a complaint for foreclosure against King, John Zajicek, who paid the 1995 real estate taxes, Diane S. Baker, holder of a second mortgage for an undisclosed amount, and other unknown owners and nonrecord claimants. On that same date, the Bank filed an affidavit for publication stating that it had made a due and diligent inquiry to find King but that she could not be located for service of summons. The Bank filed a certificate of publication that stated that the "Notice of Publication of Notice of Foreclosure" was published in the Legal Reporter in St. Clair County for three consecutive weeks, the first notice being published on September 17, 1997, and the last publication being published on October 1, 1997. King failed to enter an appearance. On November 19, 1997, the circuit court entered a judgment of foreclosure and sale. Jurisdiction was premised on defendants being served by publication with a notice in The Legal Reporter, a public and secular newspaper.

For three consecutive weeks beginning on January 7, 1998, and ending January 21, 1998, the Bank published a notice of sale in The Legal Reporter, and on January 29, 1998, a judicial sale was held. The Bank was the highest bidder. The Bank bid $46,359.45, the amount of money owed to the Bank by King pursuant to the mortgage. A certificate of sale was issued on January 29, 1998. On February 10, 1998, the sale was confirmed by the circuit court, and a judicial deed was issued conveying the property to the Bank.

A petition to set aside orders was filed on June 18, 1998, by King. King sought to declare all orders entered pursuant to the foreclosure action void. King alleged that the circuit court lacked personal jurisdiction over her because the Bank failed to make diligent efforts to locate her prior to resorting to publication. Jeffrey A. and Lea L. Green were also named as additional defendants. The Greens apparently purchased the property in question from King after the judicial sale. A response to petition to set aside orders was filed on July 6, 1998. In the response, the Bank denied failing to use due diligence. On September 28, 1998, the circuit court determined as follows: "735 ILCS 5/15-1509 [(]c[)] is controling [sic]. Defendant cannot challenge the validity of the Judicial Deed. She may only claim an interest in the proceeds of the sale." The circuit court granted King leave to amend to seek the proceeds of the sale.

On October 15, 1998, King filed an amended petition seeking the proceeds of the mortgage foreclosure sale. King claimed that the Bank did not make a diligent effort to locate her. The Bank filed a motion to dismiss King's amended petition, stating that the payoff on the mortgage at the time of the mortgage foreclosure sale was $46,359.45 and that the Bank, the highest bidder at the foreclosure sale, paid precisely that amount for the property in question. Due to these facts, the Bank requested that King's amended petition be dismissed since there were no proceeds derived from the mortgage foreclosure sale.

The circuit court entered an order on November 24, 1998, stating that the Bank's motion to dismiss amended petition was granted on all issues except that the petition would stand on the issue of the correct amount owed to the Bank at the time of the mortgage foreclosure sale. On January 21, 1999, the Bank filed a motion for summary judgment stating that King had admitted that the amount due the bank on the date of the mortgage foreclosure was, in fact, the correct amount. King filed a motion to clarify on January 25, 1999, seeking a reconsideration of the circuit court's November 24, 1998, order. All motions were argued on January 28, 1999, and taken under advisement. On February 9, 1999, the circuit court entered an order denying King's motion to clarify and granting the Bank's motion for summary judgment. King filed a timely notice of appeal.

King argues on appeal that the circuit court's orders are void "for lack of personal jurisdiction over Appellant." More specifically, King argues that the Bank's failure to exercise due diligence to locate her and personally serve her prior to resorting to service by publication has deprived her of her real estate without due process. King is seeking damages from the Bank in the amount of the difference between the fair market value of the real estate in question on the date of the judicial sale less the amount owed to the Bank pursuant to the mortgage.

The standard of review for the entry of summary judgment is de novo. See Shull v. Harristown Township, 223 Ill.App.3d 819, 824, 166 Ill.Dec. 142, 585 N.E.2d 1164, 1167 (1992). Pursuant to section 2-206 of the Code of Civil Procedure, service by publication is allowed in actions affecting property. 735 ILCS 5/2-206 (West 1996). The statute requires a plaintiff to file an affidavit showing that the defendant "on due inquiry cannot be found * * * so that process cannot be served upon him or her" and "stating the place of residence of the defendant, if known, or that upon diligent inquiry his or her place of residence cannot be ascertained." The defendant may challenge such affidavit by filing an affidavit showing that upon due inquiry he could have been found. Upon the defendant's challenge, the plaintiff must produce evidence establishing due inquiry. See Household Finance Corp. Ill v. Volpert, 227 Ill.App.3d 453, 454-55, 169 Ill.Dec. 611, 592 N.E.2d 98, 99 (1992).

The record reveals the following facts surrounding the Bank's attempts at personal service of process on King. The Bank's counsel, Chadwick Kasten, filed an affidavit for publication on September 5, 1997. Within the affidavit, Kasten stated that he had made a "due and diligent inquiry" to find King and that "upon due inquiry" she could not be found so that process could be served upon her "nor on diligent inquiry can the places of residence of any of * * * [the defendants] be ascertained." Tom Tschudy, the Bank's vice president, signed an affidavit stating: "The collection department of the bank has made repeated, but unsuccessful attempts to locate Janet King. It is my belief that she has left the local area." Gene Smith, a private investigator employed by Kasten to ascertain whether the residence that is the subject of the aforementioned mortgage was occupied or vacant, signed an affidavit also. Smith's affidavit stated as follows: "I visited the home on July 18, 1997. I knocked on the door and there was no answer. I looked in the windows. There was no furniture or any other items in the house to suggest that the home was occupied. * * * In my opinion, the home is vacant."

On November 7, 1997, Kasten filed a certificate of service stating that he served a copy of the complaint of foreclosure, the affidavit as to unknown owners and nonrecord claimants, the affidavit for publication, the notice of publication of notice of foreclosure, the notice of foreclosure, the notice of lis pendens, an attorney affidavit, the motion for default and judgment of foreclosure and sale, and a notice of hearing, by depositing said documents in the United State Post Office mailbox in an envelope plainly addressed to Ms. Janet King, P.O. Box 24163, University City, MO XXXXX-XXXX, with postage fully prepaid on November 7, 1997. There is no evidence in the record that this envelope was returned to Kasten. We also note that the invoice from Kasten to the Bank states that on September 30, 1997, he drafted and mailed a letter to Janet King.

Once the Bank filed the affidavit pursuant to the language used in the statute, it became incumbent upon King to file an affidavit stating that upon "due inquiry" she could have been found. King did nothing until June of 1998, when she filed the petition to set aside the sale of the property. In fact, she never filed an affidavit or even suggested in her petition that upon "due inquiry" she could have been found. The only address in the record is a post office box address in Missouri. Additionally, the property that is the subject of this appeal appeared to be vacant when the Bank sent a private investigator to the residence. The allegation in her petition that states that "[p]laintiff did not make a diligent effort to attempt to locate the whereabouts" of King was merely conclusory. Since King did not properly challenge the Bank's affidavit that she could not be found, we conclude that the trial court's findings were correct.

Although King appears to suggest that notice by publication is never appropriate, even when a property owner cannot be located, the legislature has determined otherwise. See 735 ILCS 5/2-206 (West 1996). We also reject King's argument that notice by publication is a violation of due process. Numerous cases are found in which similar contentions have been made and decided adversely. These cases hold that service by publication satisfies the requirement of due process of law. See Schultz v. Walker, 130 F.2d 907, 909 (7th Cir.1942), and cases cited therein.

King also...