JPMorgan Chase Bank v. Ivanov (IL)

Summary: Although service by publication is allowed in actions affecting property, the process server must show diligent inquiry to locate and serve process before requesting to perform service by publication.


JPMorgan Chase Bank, Nat. Ass'n v. Ivanov, 2014 IL App (1st) 133533.


Go to full opinion.


Facts: On June 27, 2007, Konstantin Ivanov borrowed $273,000 from JPMorgan Chase Bank, National Association, secured by a mortgage on a condominium unit located at 1675 Mill Street Unit No. 202 in Des Plaines, Illinois. On May 25, 2010, Chase Home Finance, LLC, filed a complaint to foreclose the mortgage against Ivanov as the mortgagee under section 15–1208 of the Illinois Code of Civil Procedure, alleging that Ivanov was in default in the amount of $272,802.57 in unpaid principal. JPMorgan also named River Mill Condominium Association and unknown owners and nonrecord claimants as defendants in order to terminate their interest in the mortgaged property.

On June 11, 2010, JPMorgan filed two affidavits requesting allowance to serve Ivanov by publication, alleging that it had tried three times over Memorial Day weekend to serve Ivanov without success. The three attempts were between 8:30 a.m. and 11:30 a.m. on Friday, Saturday and Sunday. The court allowed the service by publication and JPMorgan published a notice of pending action against Ivanov three times in the summer of 2010 and then almost a year later in May 2011. On August 18, 2011, a notice was sent to Ivanov’s Mill Street address informing him that foreclosure and sale had been entered and the property would be sold at public auction on September 27, 2011.

Ivanov motioned to quash service and to vacate the judgment of foreclosure because service by publication was invalid since he resided at the Mill Street address. Ivanov submitted three affidavits requesting the court to reconsider, but the court denied the motions. On March 28, 2012, JPMorgan motioned for an entry of order approving the report of sale and distribution and an order of possession against Ivanov and River Mill. On October 10, 2013, the trial court approved the sale and entered an order of possession. Ivanov appealed.


Holding: Reverse and remanded. On appeal, the first issue brought before the court was JPMorgan’s attempt to show the appellate court lacked jurisdiction to review the motion to quash service by publication because Ivanov’s notice of appeal only specified review of judgment dated October 10, 2013 and not the motion. The court held that Ivanov’s appeal was sufficient to confer jurisdiction to review the motion to quash because the motion was a necessary step for the trial court’s October 10, 2013 judgment. Thus, the court denied JPMorgan’s challenge.

The second issue was whether JPMorgan’s service by publication was justified. The court held that it was not because JPMorgan did not demonstrate a well-directed effort to ascertain the whereabouts of Ivanov by inquiry as full as the circumstances permitted. The court’s reasoning was that attempts of service were made during traditional working hours or during a holiday weekend, where travel is not uncommon, and very little was done to ascertain whether Ivanov premises was reasonably certain to be vacant.

Finally, the court addressed whether Ivanov met the burden of showing he could have been found upon due inquiry. The court held that Ivanov met the burden and the trial court erred in disregarding his affidavits because the affidavits met the requirements set in Illinois Supreme Court Rule 191(a).


Opinion Year: 
By: ATG Underwriting Department | Posted on: Mon, 04/06/2015 - 11:42am