United Bank of Loves Park v. Dohm, 82-609

• Decision Date: 09 June 1983
• Docket Number: No. 82-609,82-609
• Citation: 450 N.E.2d 974,71 Ill.Dec. 286,115 Ill.App.3d 286
• Parties: , 71 Ill.Dec. 286 UNITED BANK OF LOVES PARK, A State Banking Corporation, Plaintiff-Appellee, v. J. Patrick DOHM and Ingrid Dohm, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 974

450 N.E.2d 974 115 Ill.App.3d 286, 71 Ill.Dec. 286 UNITED BANK OF LOVES PARK, A State Banking Corporation,
Plaintiff-Appellee,
v.
J. Patrick DOHM and Ingrid Dohm, Defendants-Appellants. No. 82-609. Appellate Court of Illinois,
Second District. June 9, 1983.
Rehearing Denied July 13, 1983.

[115 Ill.App.3d 287]

Page 975

[71 Ill.Dec. 287] J. Patrick Dohm, pro se.

Remencius, Liebovich & Gaziano, Theodore Liebovich, Rockford, for plaintiff-appellee.

SEIDENFELD, Presiding Justice:

J. Patrick Dohm and Ingrid Dohm, as beneficiaries of a land trust, seek to vacate the sale of real estate made under a decree of foreclosure entered by default. They contend that J. Patrick Dohm was not properly served in the original foreclosure action by substituted service on his wife at their Rockford house because at the time of the service his usual place of abode, at which service was required to be made, was in Chicago, not Rockford. He also contends that the First National Bank & Trust Co. of Rockford, as Trustee under Trust 4774, holding record title to the subject real estate, was not properly served.

1.

The claim of improper substituted service of process is based on Section 2-203 of the Code of Civil Procedure, which provides as relevant:

"[S]ervice of summons upon an individual defendant shall be made (a) by leaving a copy thereof with the defendant personally or (b) by leaving a copy at the defendant's usual place of abode, with some person of the family * * * provided the officer or other person making service shall also send a copy of the summons * * * addressed to the defendant at his or her usual place of abode. The certificate of the officer or affidavit of the person that he or she has sent the copy in pursuance of this Section is evidence that he or she has done so." (Emphasis added.) Ill.Rev.Stat.1981, ch. 110, par. 2-203.

[115 Ill.App.3d 288] Defendants argue that delivery of a copy of the complaint and summons to Ingrid Dohm, the wife of J. Patrick Dohm, at their residence in Rockford did not comply with the statute because his "usual place of abode" at the time of service was an apartment in Chicago, not the Rockford house.

Page 976

[71 Ill.Dec. 288] Initially we consider the argument of the plaintiff, United Bank of Loves Park, that service was waived when J. Patrick Dohm entered his appearance on the petition to vacate the decree of foreclosure. It argues that defendant, by arguing non-jurisdictional issues such as adequacy of price at the sheriff's sale, waived the right to contest the propriety of the service of process. The defendant, however, made no appearance in this case until after the entry of the judgment of foreclosure. Moreover, the petition to vacate, though attacking the propriety of the post-decree sheriff's sale, does not argue the merits of the foreclosure action itself. For these reasons the petition to vacate did not amount to a waiver of the right to contest the service of process. See Sullivan v. Bach, 100 Ill.App.3d 1135, 1141-42, 56 Ill.Dec. 450, 427 N.E.2d 645 (1981).

The sheriff's return on the summons states that the summons was served and mailed on October 7, 1980. Dohm testified that he was employed as a commodity investment program salesman in Chicago from September 26, 1980, through January 19 or 20, 1981, and that during this time he resided in an apartment in Chicago. He stated that previously he had resided at the home in Rockford where service was made and that he moved back to Rockford on either January 19...