OneWest Bank, FSB v Markowicz (IL)

Summary:  A General Administrative Order (GAO) issued by the presiding judge of the chancery division of the circuit court, setting procedures for mortgagees to obtain appointment of special process servers in foreclosure actions does did not conflict with or circumvent statutes setting requirements for serving process and commencing civil actions.

OneWest Bank, FSB v Markowicz, 2012 IL App (1st) 111187, 968 NE2d 726, 360 Ill Dec 233 (1st D, 2012).

Facts:  The plaintiff, OneWest Bank (OneWest), entered into a mortgage with the defendants (Markowicz) in April 2003. Beginning in December 2008, the defendants failed to pay due amounts on the mortgage. OneWest, through its attorneys Codilis & Associates, filed a complaint to foreclose the mortgage on July 9, 2009. OneWest motioned for appointment of a special process server at that time, which contained a copy of a May 14, 2009, order appointing standing special process servers authorized to serve process in mortgage foreclosures handled by Codilis & Associates for the three-month period ending on August 30, 2009.

The standing order from May 14, 2009, was obtained pursuant to a 2007 General Administrative Order (GAO) entered by the then-presiding judge of the Chancery Division of the Circuit Court of Cook County in an effort to address the increased volume of foreclosure actions and a lack of resources to allow effective service by the Sheriff of Cook County. Pursuant to the GAO, Codilis retained ProVest LLC, to serve as special process server. ProVest attempted 14 times but failed to serve defendants at the address of the mortgaged property, the only contact address that could be found for the defendants. On August 17, 2009, Codilis filed an affidavit requesting leave for service by publication, which it did from August 21, 2009, to September 4, 2009.

An order of default was entered as was a judgment of foreclosure and sale when Markowicz failed to appear. At the December 1, 2010, judicial sale, OneWest was the high bidder. On January 11, 2011, Markowicz moved to quash service, arguing that the order appointing the special process server was inadequate because it did not follow the GAO’s requirements. The defendants also argued that the process server who signed the returns of service was not identified as an employee of ProVest. The motion to quash was denied, as was the defendants’ April 5, 2011, motion to reconsider. Markowicz filed a timely appeal on April 14, 2011.

Holding:  The appellate court affirmed the decision of the trial court. On appeal, Markowicz first claimed the GAO was void because the presiding judge of the chancery division had no authority to issue and/or enforce the GAO. The defendants offered seven arguments to support this claim. Although these arguments were not raised before the trial court, they were heard on appeal because an order entered without authority or without jurisdiction of the parties or the subject matter is void any may be challenged directly or collaterally at any time. The appellate court rejected this first claim, finding that the GAO was valid, and the presiding judge did have authority to enter general orders pursuant to Illinois Supreme Court rule 21(c). The court had previously decided this issue in U.S. Bank, N.A. v. Dzis, and held that the GAO did not conflict with any other statutory procedures for service of process, which composed the remaining arguments for this first claim.

Markowicz secondarily argued that the standing order did not comply with the GAO because it did not strictly comply with the requirements of the GAO, so a motion to quash service should have been granted. Standing orders under the GAO appointed special process servers for three-months, or a quarterly duration. In Codilis’ order, it substituted the word “period” for the word “quarter” thus it failed to strictly comply with the GAO. The court said a failure to mirror the exact wording does not make the order invalid, stating that “notwithstanding the difference in wording of the heading [on the order] it is clear that Codilis & Associates’ order is for a finite three-month period.” The court said the duration was easily ascertainable and “unswerving obedience” is not demanded where no material harm is done to any litigant; therefore, the court rejected this argument as well.

Lastly, Markowicz argued that the motion to quash should have been granted because service by publication was improperly authorized. The clerk of court can order service by publication upon the filing an affidavit showing that the defendant, on due inquiry, cannot be served 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. Markowicz asserted that the affidavit was inadequate and invalid, rendering service by publication unauthorized because the signature of the affiant was illegible and not also printed therefore the affiant is neither identified nor identifiable. The court rejected this argument citing the lack of any requirement in Section 2-206 requiring anything more than a signature to identify the signator of the affidavit. The court held this affidavit adequate to support service by publication.

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By: ATG Underwriting Department | Posted on: Fri, 09/14/2012 - 2:19pm