The Illinois Supreme Court’s recent decision in a foreclosure action could have far-reaching implications for litigations within the state. In a 5-2 decision, the Court ruled that anyone seeking to serve a defendant in Cook County via special process server must first secure a Cook County judge’s authorization for the summons to be valid.
The case arose from a foreclosure action in Kankakee County. In the underlying case, the plaintiff Municipal Trust and Savings Bank filed a complaint for mortgage foreclosure against defendant Dennis J. Moriarty in December 2016 and issued summons from Kankakee County, where the mortgaged commercial properties are located. A special process server ultimately served the defendant at Rush Hospital in Chicago, which is located in Cook County. Upon the plaintiff’s motion, the circuit court entered a judgment for foreclosure and sale. Following entry of the foreclosure judgment, a sheriff’s sale was held on the property, and plaintiff was the successful bidder. The bank then filed a motion for confirmation of the foreclosure sale.
The defendant filed a Section 2-1401 petition challenging the judgment as void arguing that the circuit court was without personal jurisdiction to enter the default judgment in the foreclosure proceeding. The Defendant asserted that under section 2-202 of the Code, a special process server cannot serve process on a defendant in Cook County without first being appointed by the circuit court. The circuit court denied the defendant’s section 2-1401 petition finding that the special process server was not required to be specially appointed to serve process on the defendant. The appellate court affirmed. The defendant petitioned for leave to appeal to the Illinois Supreme Court, which granted his petition.
Justice Mary Jane Theis penned the decision for the majority with two justices, Justices Robert Carter and Rita Garman, dissenting. The Court first clarified that although the defendant did not challenge the circuit court’s judgment until after it was entered, he was entitled to do so under Section 2-1401 of the Code as a judgment entered by a court that lacks jurisdiction over the parties is void and may be challenged at any time, either directly or collaterally. After resolving this issue, the Court turned to the text of Section 2-202 which concerns the service of process by special process servers. Section 2-202 provides, in pertinent part:
Persons authorized to serve process; Place of service; Failure to make return.
(a) Process shall be served by a sheriff, or if the sheriff is disqualified, by a coroner of some county of the State. In matters where the county or State is an interested party, process may be served by a special investigator appointed by the State’s Attorney of the county ***. A sheriff of a county with a population of less than 2,000,000 may employ civilian personnel to serve process. In counties with a population of less than 2,000,000, process may be served, without special appointment, by a person who is licensed or registered as a private detective under the Private Detective, Private Alarm, Private Security, Fingerprint Vendor, and Locksmith Act of 2004.* * *
(b) Summons may be served upon the defendants wherever they may be found in the State, by any person authorized to serve process. An officer may serve summons in his or her official capacity outside his or her county, but fees for mileage outside the county of the officer cannot be taxed as costs. The person serving the process in a foreign county may make return by mail.
The bank argued that the correct interpretation of these subsections provides that it is the county in which the lawsuit is filed controls the authority of the process server, not the county in which service is made. Accordingly, the plaintiff argued, because the complaint in this case was filed in Kankakee County, the restriction in subsection (a), allowing service of process by a private detective in Cook County only if he or she is appointed by the court, does not apply. The Court rejected this argument.
To the contrary, the Court reasoned, section 2-202 is concerned with where process is served on a defendant, not where the underlying suit is filed. Because section 2-202 requires special appointment by a circuit court judge in counties of two million people or more and because Cook County is the only county with more than two million people, “it logically follows that, for a private detective to serve process on a defendant in Cook County, he or she must be specially appointed by the court,” the Court wrote.
The Court also rejected the bank’s argument that any defect in the service of process was excused when the defendant voluntarily submitted to the circuit court’s jurisdiction when he filed a written appearance and appeared in court to object to the bank’s motion to confirm the sale. The Court explained that the defendant’s appearance did not retroactively validate void orders entered prior to his appearance.
In so ruling, the Court acknowledged “the potential inconvenience to a party having to request special appointment of a private detective when the defendant is served in Cook County.” This inconvenience did not justify a different outcome, however, the Court reasoned, because “where the language of a statute is clear, this court is not free to read into it exceptions that our legislature did not express and must give it effect as written.”
The Court’s ruling adds another level of complexity when litigating against defendants that may need to be served in Cook County. Even if the lawsuit has been filed outside of Cook County, if the plaintiff wishes to use a special process server in Cook County, it will now be necessary to file a petition in the Cook County circuit court requesting appointment of a special process server before serving the defendant. Failure to follow this additional step, could put a subsequent judgment in jeopardy of being found void and unenforceable. It also adds an additional defense for defendants seeking to avoid the consequences of a judgment.
The Court’s full opinion is available here.
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