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Casenotes

Illinois

Foreclosure

US Bank v Dzis, 2011 WL 2437921 (1st D, 2011).

Facts:In September 2009, Yaroslav Dzis defaulted on a mortgage and the lender, U.S. Bank, brought a foreclosure action against him. Two weeks before the lawsuit, the circuit court issued a General Administrative Order (GAO) that appointed four private detective agencies as process servers for all mortgage foreclosure cases brought by U.S. Bank&€™s lawyers, Codilis & Associates. Pursuant to the GAO, one of these private detective agencies attempted to serve Dzis several times. When Dzis could not be personally served, a notice was published in the Chicago Daily Law Bulletin.

In February 2010, Dzis failed to appear before the circuit court and a default judgment was entered against him. Two months later the foreclosed property was sold at auction.

In May, 2010 Dzis appeared in court for the first time and made a motion to quash service of process. He argued that the circuit court did not have the authority to issue the GAO appointing a special process server, because it conflicted with the Illinois Constitution and Section 2-202 of the Illinois Code (735 ILCS 5/2-202 (West 2008)). Dzis claimed that the GAO violated his procedural and substantive due process rights as well as his equal protection rights. The trial court denied the motion and Dzis appealed.

Holding:Affirmed. The Appellate Court held that there was no conflict between the GAO and Illinois law, and even if there were, the order would supersede the code. It also held that the general order did not violate any of Dzis&€™ due process or equal protection rights.

First, the court established that the circuit court had the authority to issue the general order based on Illinois Supreme Court Rule 21(c), which authorizes general orders. Then the court examined Dzis' argument that the GAO conflicted with Section 2-202 of the Illinois Code. That section states that "process shall be served by a sheriff," but then goes on to say that the court may use its discretion to appoint private detectives to act as process servers instead. Dzis argued that it was required by the section to attempt service by a sheriff first unless the court "specifically disqualified the sheriff&€¦ in a particular case." The appellate court disagreed with Dzis' interpretation of the section and held that the circuit court was not restricted from appointing the private detectives as process servers. The court also referenced the case People v Cox (82 Ill 2d 268, 274 (1980)) for authority stating that when a court's rule on a procedural matter conflicts with a statute, the rule prevails.

Dzis' due process rights were not violated, the court held, because he did not have a liberty interest in who served him with process. Because the GAO did not affect any liberty, there was no procedural due process violation. There was also no substantive due process violation because "Dzis does not have a fundamental right to have a sheriff, rather than a properly qualified private person, serve process on him."

Finally, Dzis argued that the GAO violated the equal protection rights of homeowners. However, the court dismissed this argument because homeowners who allegedly defaulted on their mortgages are not a suspect classification, and therefore as long as the circuit court had a rational basis for its order, the order was constitutional. The appellate court said that the circuit court did have a rational basis for the GAO because its purpose was to "improve the efficiency of service of process in mortgage foreclosure cases." As long as there is a rational basis for the classification then there is no equal protection violation.

Because there were no constitutional violations of Dzis' due process or equal protection rights, and because the circuit court had the authority to issue the general order, the appellate court affirmed the decision to deny the motion to quash.

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[Last update: 12-16-11]