Metrobank v Cannatello (IL)

Summary: Notice by abode service is sufficient to enter a personal deficiency judgment against a defendant who does not appear in court.

Metrobank v Cannatello, 2012 Il App (1st) 110529, 964 NE2d 656, 357 Ill Dec 977 (1st D, 2012).

Facts: Frank Cannatello gave a mortgage in May 2004 to secure a loan of $190,318.25. The mortgage included a provision that allowed the bank to obtain a personal deficiency judgment against Cannatello for any money still owed after foreclosure and sale of the property if Cannatello defaulted. Cannatello defaulted on his payments in 2010 and Metrobank filed an action for foreclosure, which included a motion for personal deficiency judgment against Cannatello. At that time Cannatello had only paid off about $2000 of the mortgage. Service of process was made on Cannatello via abode service; a copy of the summons and complaint was left with a member of his family, over the age of 13, at his usual place of abode. Cannatello did not answer the complaint or appear in court and in July 2010 default judgment was entered against him. After the property was sold, the difference between the amount gained from the sale and the amount awarded to Metrobank in the judgment resulted in a deficiency of $51,956.89.

The circuit court confirmed the sale; however, it denied the motion for personal deficiency judgment on the grounds that Cannatello was given notice by only abode service. Metrobank appealed.

 Holding:  Reversed. The circuit court found that Section 15-1508(e) of the Mortgage Foreclosure law requires that “personal service” be given to enter a personal deficiency judgment against a defendant and that abode service was not sufficient. The appellate court held that the phrase “personal service” as used in the statute included abode service. The section in question does not define “personal service” but it does “specifically provide that service shall be in accordance with Article II of the Code of Civil Procedure, which notably includes the abode service provisions.” The court concluded that the correct interpretation was that “personal service” encompassed both of the procedures set for in Section 2-203 of the Code of Civil Procedure, which included abode service. The court found that the circuit court erred in denying the motion and that the notice by abode service given to Cannatello was sufficient for the court of gain personal jurisdiction over him and enter a personal deficiency judgment.

Opinion Year: 
By: ATG Underwriting Department | Posted on: Fri, 05/25/2012 - 1:24pm