                                        2014 IL App (1st) 133553
                                              No. 1-13-3553
                                                                                          Fifth Division
                                                                                     September 26, 2014


                                             IN THE
                                  APPELLATE COURT OF ILLINOIS
                                    FIRST JUDICIAL DISTRICT


     JPMORGAN CHASE BANK,                                 )    Appeal from the Circuit Court
     NATIONAL ASSOCIATION,                                )    of Cook County.
                                                          )
                  Plaintiff-Appellee,                     )    No. 10 CH 022214
                                                          )
           v.                                             )    The Honorable
                                                          )    David B. Atkins and
     KONSTANTIN IVANOV,                                   )    Lisa A. Marino,
                                                          )    Judges Presiding.
                   Defendant-Appellant.                   )


                 JUSTICE GORDON delivered the judgment of the court, with opinion.
                 Presiding Justice Palmer and Justice Taylor concurred in the judgment and opinion.

                                              OPINION

¶1        Defendant Konstantin Ivanov appeals the trial court’s order confirming the sale of a

       condominium in a mortgage foreclosure action brought by plaintiff JPMorgan Chase Bank,

       National Association (the bank). On appeal, defendant claims: (1) that the trial court did not

       obtain personal jurisdiction over defendant by service by publication because plaintiff failed

       to meet the requirements of section 2-206(a) of the Illinois Code of Civil Procedure (735

       ILCS 5/2-206(a) (West 2010)) and Rule 7.3 of the circuit court of Cook County (Cook Co.

       Cir. Ct. R. 7.3 (Oct. 1, 1996)) and (2) that the trial court failed to properly consider

       defendant’s affidavits when ruling on his motion to quash service by publication and motion

       to reconsider. For the following reasons, we reverse.
     No. 1-13-3553


¶2                                             BACKGROUND

¶3                                          I. Complaint to Foreclose

¶4          On June 27, 2007, defendant borrowed $273,000 from the bank, secured by a mortgage

        on a condominium unit located at 1675 Mill Street Unit No. 202, Des Plaines, Illinois 60616.

¶5          On May 25, 2010, Chase Home Finance, LLC, 1 filed a complaint to foreclose the

        mortgage against defendant as the mortgagee under section 15-1208 of the Illinois Code of

        Civil Procedure (735 ILCS 5/15-1208 (West 2010)), alleging that defendant was in default in

        the amount of $272,802.57 in unpaid principal. Plaintiff also named River Mill

        Condominium Association and unknown owners and nonrecord claimants as defendants in

        order to terminate their interest in the mortgaged property.

¶6                                          II. Service by Publication

¶7          On February 17, 2010, the trial court entered an order appointing the following private

        detective agencies certified under the Private Detective, Private Alarm, Private Security,

        Fingerprint Vendor, and Locksmith Act of 2004 (225 ILCS 447/5-3 et seq. (West 2010)) as

        standing special process servers in cases filed by the bank’s attorneys in the mortgage

        foreclosure section of the chancery division until May 31, 2010: (1) Pro-Vest, Inc., (2)

        Firefly Legal, Inc., (3) Amicus Professional Legal Services Inc., and (4) United Processing,

        Inc. On May 25, 2010, plaintiff filed a motion to appoint Pro-Vest, Inc., Firefly Legal, Inc.,

        and United Processing, Inc., as special process servers pursuant to section 2-202 of the

        Illinois Code of Civil Procedure (735 ILCS 5/2-202 (West 2010)) in the case at bar.


            1
                On May 23, 2011, Chase Home Finance filed a motion to substitute JPMorgan Chase
     Bank, National Association, as plaintiff, stating that “[s]ubsequent to filing the complaint, [Chase
     Home Finance] merged into JPMorgan Chase Bank, National Association.” On June 23, 2011,
     the trial court entered an order substituting JP Morgan Chase Bank, National Association, as
     party plaintiff.
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       No. 1-13-3553


¶8            On June 11, 2010, plaintiff filed two affidavits to allow service by publication, alleging

          that it had tried three times over Memorial Day weekend to serve defendant without success.

          The record on appeal does not contain a motion by plaintiff moving the trial court to allow

          service by publication. However, it contains two affidavits to allow service by publication,

          both of which were filed by plaintiff on June 11, 2010.

¶9                                             A. Attorney’s First Affidavit

¶ 10          The first affidavit was dated June 10, 2010, and entitled “Affidavit to Allow Service by

          Publication Pursuant to 735 ILCS 5/2-206.” 2 It stated the following:

                       “[Bridget O’Neill], the undersigned attorney, on oath states as to

                  Defendants:

                       Konstantin Ivanov

                       Unknown Owners and Nonrecord Claimants

                       1. Defendants reside or have gone out of this State, or on due inquiry

                  cannot be found, or are concealed within this State, so that process cannot be

                  served upon them.

                       2. Diligent inquiry has been made as to the whereabouts of all the

                  aforesaid Defendants.




              2
                 Section 2-206(a) of the Illinois Code of Civil Procedure provides that “plaintiff or his
       or her attorney shall file *** an affidavit showing that the defendant resides or has gone out of
       this State, or on due inquiry cannot be found, or is concealed within this State, so that process
       cannot be served upon him or her, 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, the clerk shall
       cause publication to be made in some newspaper published in the county in which the action is
       pending. *** The clerk shall also, within 10 days of the first publication of the notice, send a
       copy thereof by mail, addressed to each defendant whose place of residence is stated in such
       affidavit.” 735 ILCS 5/2-206(a) (West 2010).
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                        3. That upon diligent inquiry, the place of residence of the aforesaid

                  Defendants cannot be ascertained and/or their last known place of residence

                  is:

                        Konstantin Ivanov, 1675 Mill Street Unit #202 Des Plaines, IL 60016

                        Unknown Owners and Nonrecord Claimants, 1675 Mill Street Unit #202

                  Des Plaines, IL 60016[.]”

          This affidavit did not specify what “diligent inquiry” had been made.

¶ 11                                          B. Attorney’s Second Affidavit

¶ 12          The second affidavit was also dated June 10, 2010, and entitled “Affidavit to Allow

          Service by Publication Pursuant to Local Rule 7.3.” 3 It stated the following:

                        “[Bridget O’Neill], the undersigned attorney, on oath states as to

                  Konstantin Ivanov:

                        1. Konstantin Ivanov resides or has gone out of this State, or on due

                  inquiry cannot be found, or is concealed within this State, so that process

                  cannot be served upon them. Service upon Konstantin Ivanov has been

                  attempted by United Processing, Inc., the Court Appointed Special Process

                  Server (see exhibit B).

                        2. Diligent inquiry has been made as to the whereabouts of Konstantin

                  Ivanov, (see exhibit A).

              3
                Rule 7.3 of the circuit court of Cook County states that “[p]ursuant to 735 ILCS 5/2-
       206(a), due inquiry shall be made to find the defendant(s) prior to service of summons by
       publication. In mortgage foreclosure cases, all affidavits for service of summons by publication
       must be accompanied by a sworn affidavit by the individual(s) making such 'due inquiry' setting
       forth with particularity the action taken to demonstrate an honest and well directed effort to
       ascertain the whereabouts of the defendant(s) by inquiry as full as circumstances permit prior to
       placing any service of summons by publication.” Cook Co. Cir. Ct. R. 7.3 (Oct. 1, 1996).
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                       3. That upon diligent inquiry, the place of residence of Konstantin Ivanov

                 cannot be ascertained and/or their last known place of residence is: 1675 Mill

                 Street Unit #202 Des Plaines, IL 60016[.]”

          This affidavit also did not specify what “diligent inquiry” had been made but it did attach two

          supporting affidavits as Exhibits A and B.

¶ 13         The first affidavit, or exhibit A, is dated June 4, 2010, and is signed by Corey Fertel, a

          well-known owner of a process-serving company. Although Fertel signed the affidavit, the

          affidavit stated that an individual named Matt Cunningham recounted the actions that Fertel

          took to find defendant. The affidavit stated the following:

                       “Before me, the undersigned authority, this day, personally appeared, Matt

                 Cunningham, who upon being first duly sworn, upon his/her oath, deposes and

                 says:

                       ‘A diligent search and inquiry to discover the name and residence of

                 Konstantin Ivanov was performed by the following acts set forth, as

                 particularly as is known to Corey Fertel, below.’

                       After diligent search and inquiry by affiant, the residence of the subject

                 person is unknown to affiant.”

          However, Fertel searched only for “new addresses or phone numbers” and “new results for

          the named defendant” in whitepages.com, local and federal prisons, “a private database that

          utilizes thousands of different public records databases and other resources,” and the “SS

          Death Index.” (Emphases added.) Fertel also performed the following searches to find “new”

          results for defendant’s name: national phone directory, hunting licenses, "UCC" liens, voter




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       No. 1-13-3553


          registration, aircraft, boaters, and bankruptcies, among others. The following is a portion of

          the aforementioned list of inquiries performed by Fertel to locate defendant:

                “The following searches were done for the defendant:

                1. Aircraft- No new results.

                2. Bankruptcies- No new results.

                3. Judgments- No new results.

                4. Liens- No new results.

                5. Boaters- No new results.

                6. Business Phones- No new results.

                7. Concealed Weapons- No new results.

                                                    ***

                23. National Security Watch Lists – No new results.”

¶ 14         In addition, the affidavit of Mark Wiebe, a court-appointed special process server, is

          dated June 3, 2010, and attached as exhibit B to the attorney’s second affidavit. Mark Wiebe

          of United Processing, Inc., stated that he had been “unable to effect service of the within

          Mortgage Foreclosure Summons and Complaint to Foreclose Mortgage on Konstantin

          Ivanov.” The affidavit then provided a table showing that Wiebe visited defendant’s property

          three times: (1) May 27, 2010, at 11:15 a.m.; (2) May 28, 2010, at 8:35 a.m.; and (3) May 30,

          2010, at 9:55 a.m.

¶ 15         We take judicial notice of the fact that these visits occurred on a Thursday, a Friday, and

          a Sunday over the Memorial Day weekend, and that all visits occurred within the same

          timeframe, namely, between 8:30 a.m. and 11:30 a.m. in the morning.



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       No. 1-13-3553


¶ 16         On May 27, 2010, Wiebe observed that: “4 story multi unit secured building. Def in bell

          system ings [sic] disconnected phone. Unit appears to be vacant, will return to confirm.” On

          May 28, 2010, he observed that: “[u]nit still appears vacant.” On May 30, 2010, he observed

          that: “[t]his visit confirms to me the unit is vacant.” Below the table, the affidavit stated:

          “Comments/Prev. Attempts: Unit is vacant, phone is disconnected, one neighbor says he

          heard he went back to his family in Poland. Pics [sic] attached.” Two photographs were

          attached: (1) the first showed the interior of the apartment building’s lobby through glass

          doors and (2) the second showed the exterior of the apartment building.

¶ 17         It is unclear from the “disconnected phone” statement in the affidavit whether that means

          that the intercom was not connected to a landline or that the intercom handset was not

          working. Also, the “one neighbor” is not identified by name or address. The affidavit does

          not indicate whether the “neighbor” lived in the same building.

¶ 18                                         III. Default

¶ 19         The bank published a notice of the pending action against defendant in the Chicago Daily

          Law Bulletin on June 17, 2010, June 24, 2010, and July 1, 2010. Almost a year later, on May

          23, 2011, it filed a motion for entry of an order of default and for judgment of foreclosure

          and sale against defendant for failure to appear and answer. On June 23, 2011, the trial court

          entered an order of default and judgment for foreclosure and sale against defendant.

¶ 20         On August 18, 2011, a notice of sale was mailed to defendant at 1675 Mill Street Unit

          No. 202, Des Plaines, Illinois, 60616, informing him that a judgment of foreclosure and sale

          had been entered against him and that the property would be sold at public auction a month

          later on September 27, 2011. Defendant’s brief on appeal stated that: “this was the first time

          that [defendant] became aware of the lawsuit.”


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       No. 1-13-3553


¶ 21         We note that section 15-1502.5 of the Illinois Code of Civil Procedure (735 ILCS 5/15-

          1502.5 (West 2010)) requires that the mortgagee send the mortgagor notice of a grace period

          before filing a foreclosure suit. This notice informs mortgagors that their loan is more than 30

          days overdue and they have a 30-day grace period to obtain approved housing counseling.

          735 ILCS 5/15-1502.5(c) (West 2010). “Until 30 days after mailing the notice *** no legal

          action shall be instituted under Part 15 of Article XV of the Code of Civil Procedure.” 735

          ILCS 5/15-1502.5(d) (West 2010). In the case at bar, the record on appeal contains no

          information regarding a grace period notice and defendant’s brief on appeal stated that he

          first learned of the foreclosure action when the notice of sale was mailed to him on August

          18, 2011.

¶ 22                                         IV. Motion to Quash

¶ 23         On October 17, 2011, defendant filed a motion to quash service and to vacate the

          judgment for foreclosure, claiming that the service made by publication was invalid since

          defendant resided at the property and was not personally served. In support of his motion,

          defendant filed two affidavits. The first affidavit, dated October 17, 2011, stated that he had

          “resided at 1675 Mill Street Unit # 202, Des Plaines, Illinois 60616 *** continuously since

          [he] purchased the condominium in June 2007. Specifically, [he] resided at the Property at all

          times, on, before and after May 25, 2010.”

¶ 24         Defendant’s second affidavit, dated December 5, 2011, stated that the bank could have

          served him at the property before or after working hours, during the week, and on weekends;

          plaintiff would have found the property to be occupied if it had looked because the property

          contained defendant’s personal belongings and was his primary place of residence; and




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       No. 1-13-3553


          plaintiff could have asked defendant’s neighbors or the property manager regarding

          defendant’s residence.

¶ 25         On December 15, 2011, the trial court denied defendant’s motion to quash in a short

          written order, which does not indicate the trial court’s reasons for denying defendant’s

          motion to quash but does state that the trial court was “fully advised on the premises.”

¶ 26                                          V. Motion to Reconsider

¶ 27         On January 13, 2012, defendant filed a motion to reconsider, attaching a third affidavit,

          dated January 13, 2012, stating that defendant has “not attempted to conceal his whereabouts

          or leave the state to avoid litigation.” In response to Wiebe’s affidavit, which stated that “one

          neighbor says he heard [defendant] went back to his family in Poland,” defendant’s third

          affidavit stated that he is “Bulgarian, not Polish. [He has] never resided in Poland, nor does

          any of [his] family reside in Poland.” Moreover, the affidavit stated that “at all times on,

          before, and after May 25, 2010,” the property address was listed as defendant’s address on

          his Illinois driver’s license, bank accounts, paychecks from his employer, and his active

          Comcast cable and Internet account. Accordingly, defendant attached copies of his driver’s

          license, November 2011 earnings statement, November 2011 Comcast Internet bill, and an

          undated blank check listing the property as his address.

¶ 28         On March 28, 2012, the bank filed a motion for the entry of an order approving the report

          of sale and distribution pursuant to section 15-1508 of the Illinois Code of Civil Procedure

          (735 ILCS 5/15-1508 (West 2010)).

¶ 29         On April 10, 2012, the bank filed a response to defendant’s motion to reconsider,

          claiming that defendant’s motion to reconsider “fails to establish any of the three bases for

          the granting of a motion to reconsider”: (1) newly discovered evidence that was unavailable


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          at the time of the motion to quash, (2) changes in the law, or (3) errors in the court’s

          application of the law.

¶ 30         On May 24, 2012, defendant filed a reply in support of his motion to reconsider, claiming

          that (1) the trial court erroneously placed an unlawful burden on defendant, requiring him to

          show that he resided at the property; (2) the bank failed to comply with the statutory

          prerequisites for service by publication; and (3) the trial court, in ruling on defendant’s

          motion to reconsider, should consider a new case, Deutsche Bank National Trust Co. v.

          Brewer, 2012 IL App (1st) 111213, which held that an affidavit was insufficient to justify

          service by publication because it failed to identify the individuals who attempted service on

          the defendant. Brewer, 2012 IL App (1st) 111213, ¶ 21.

¶ 31         On July 19, 2012, the trial court denied the motion to reconsider in a written order,

          finding that “plaintiff’s service of process affidavit is not inconsistent with Cook County, Ill.

          Cir. Ct. R. 7.3” and current case law. The trial court stated that: “[Defendant’s] only proof

          offered to support his position” challenging the bank’s service by publication in defendant’s

          motion to quash “consisted of two self-serving affidavits regarding his place of residence.”

          The trial court did not mention either defendant’s third affidavit or the documents, which

          were attached to his motion to reconsider.

¶ 32         On March 28, 2012, the bank filed a motion for an entry of order approving the report of

          sale and distribution and for an order of possession against defendant and River Mill

          Condominium Association. The bank was the highest bidder at the public auction, which

          occurred on March 9, 2012, and purchased the property for $113,600. On October 10, 2013,

          the trial court approved the sale and entered an order of possession. This appeal follows.




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       No. 1-13-3553


¶ 33                                              ANALYSIS

¶ 34         Defendant appeals the trial court’s order confirming the sale of property in a mortgage

          foreclosure action brought by the bank. On appeal, defendant claims: (1) the trial court did

          not obtain personal jurisdiction over defendant by service by publication because plaintiff

          failed to meet the requirements of section 2-206(a) of the Illinois Code of Civil Procedure

          (735 ILCS 5/2-206(a) (West 2010)) and Rule 7.3 of the circuit court of Cook County (Cook

          Co. Cir. Ct. R. 7.3 (Oct. 1, 1996)) and (2) the trial court failed to properly consider

          defendant’s affidavits when ruling on his motion to quash service by publication and motion

          to reconsider. For the following reasons, we reverse.

¶ 35                                             I. Jurisdiction

¶ 36         As a preliminary matter, we consider the bank’s argument that this court lacks

          jurisdiction to review the trial court’s denial of defendant’s motion to quash service. The

          bank argues that since defendant’s notice of appeal states that he is appealing the trial court’s

          judgment dated October 10, 2013, this court’s jurisdiction is limited to reviewing only that

          judgment. As noted, October 10, 2013, is the date that the trial court approved the sale of the

          property and entered an order of possession, and not the date the trial court denied

          defendant’s motion to quash service.

¶ 37         Illinois Supreme Court Rule 303 (eff. May 30, 2008) states that a notice of appeal “shall

          specify the judgment or part thereof or other orders appealed from and the relief sought from

          the reviewing court.” Filing a notice of appeal “ ‘is the jurisdictional step which initiates

          appellate review.’ ” People v. Smith, 228 Ill. 2d 95, 104 (2008) (quoting Niccum v. Botti,

          Marinaccio, DeSalvo & Tameling, Ltd., 182 Ill. 2d 6, 7 (1998)). “Unless there is a properly

          filed notice of appeal, the appellate court lacks jurisdiction over the matter and is obliged to


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       No. 1-13-3553


          dismiss the appeal.” General Motors Corp. v. Pappas, 242 Ill. 2d 163, 176 (2011) (citing

          Smith, 228 Ill. 2d at 104). “A notice of appeal confers jurisdiction on a court of review to

          consider only the judgments or parts of judgments specified in the notice of appeal.” Pappas,

          242 Ill. 2d at 176 (citing People v. Lewis, 234 Ill. 2d 32, 37 (2009)).

¶ 38          The purpose of a notice of appeal “ ‘is to inform the prevailing party that the other party

          seeks review of the trial court's decision.’ ” Pappas, 242 Ill. 2d at 176 (quoting Lewis, 234

          Ill. 2d at 37). "The notice of appeal ' "should be considered as a whole and will be deemed

          sufficient to confer jurisdiction on an appellate court when it fairly and adequately sets out

          the judgment complained of and the relief sought, thus advising the successful litigant of the

          nature of the appeal." ' " Pappas, 242 Ill. 2d at 176 (quoting Smith, 228 Ill. 2d at 105 (quoting

          Lang v. Consumers Insurance Service, Inc., 222 Ill. App. 3d 226, 229 (1991))).

¶ 39          “Although a notice is jurisdictional, our supreme court has held that we must construe a

          notice liberally.” Filliung v. Adams, 387 Ill. App. 3d 40, 49 (2008) (citing Smith, 228 Ill. 2d

          at 104). “Our supreme court has held that a reviewing court should find that a defect is not

          fatal to the appeal if: (1) a notice's defect is a defect in form rather than in substance; and (2)

          the defect has not prejudiced the opposing party.” Filliung, 387 Ill. App. 3d at 49 (citing

          Smith, 228 Ill. 2d at 105).

¶ 40          “In addition to the exception for form defects, there is also an exception for rulings that

          were necessary steps to the judgment named in the notice [of appeal].” Filliung, 387 Ill. App.

          3d at 49 (citing Burtell v. First Charter Service Corp., 76 Ill. 2d 427, 436 (1979)). “In

          Burtell, our supreme court held that an unspecified judgment was reviewable if the specified

          judgment ‘directly relates back to [it].’ ” Filliung, 387 Ill. App. 3d at 49 (quoting Burtell, 76

          Ill. 2d at 434).


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¶ 41         Defendant’s notice of appeal is sufficient to confer jurisdiction on this court to review the

          trial court’s denial of defendant’s motion to quash service of process. While the notice of

          appeal states that the date of the judgment appealed is October 10, 2013, the notice of appeal

          also states that defendant is seeking the “reversal of entry of order confirming sale, reversal

          of judgment for foreclosure, and reversal of order denying motion to quash service.”

          (Emphasis added.) Moreover, the denial of defendant’s motion to quash service of process

          was a necessary step for the trial court’s October 10, 2013, judgment approving the sale of

          defendant’s property.

¶ 42         As a result, the notice of appeal adequately set out the judgments that defendant appeals

          and fairly informed the bank of the nature of the appeal.

¶ 43                                      II. Service by Publication

¶ 44         Defendant argues that the trial court did not obtain personal jurisdiction over defendant

          because the bank failed to meet the statutory requirements for service by publication under

          section 2-206 of the Code of Civil Procedure (735 ILCS 5/2-206 (West 2010)) and local rule

          7.3 (Cook Co. Cir. Ct. R. 7.3 (Oct. 1, 1996)). The bank argues that it met the statutory

          requirements for service by publication.

¶ 45         We review de novo whether the trial court obtained personal jurisdiction. BAC Home

          Loans Servicing, LP v. Mitchell, 2014 IL 116311, ¶ 17 (citing In re Detention of Hardin, 238

          Ill. 2d 33, 39 (2010)). De novo consideration means we perform the same analysis that a trial

          judge would perform. Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011).

¶ 46         Where “ ‘a court lacks *** personal jurisdiction over the parties, any order entered in the

          matter is void ab initio and, thus, may be attacked at any time.’ ” In re Dar. C., 2011 IL

          111083, ¶ 60 (quoting In re M.W., 232 Ill. 2d 408, 414 (2009)); see also Johnston v. City of


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          Bloomington, 77 Ill. 2d 108, 112 (1979) (where a court lacks personal jurisdiction, “the

          proceedings are a nullity and no rights are created by them and they may be declared void

          when collaterally attacked”). “When a defendant has not been served with process as

          required by law, the court has no jurisdiction over that defendant and a default judgment

          entered against him or her is void.” Equity Residential Properties Management Corp. v.

          Nasolo, 364 Ill. App. 3d 26, 32 (2006) (citing First Federal Savings & Loan Ass'n of

          Chicago v. Brown, 74 Ill. App. 3d 901, 905 (1979), and Bank of Ravenswood v. King, 70 Ill.

          App. 3d 908, 913 (1979)).

¶ 47         “Personal jurisdiction may be established either by service of process in accordance with

          statutory requirements or by a party's voluntary submission to the court's jurisdiction.” BAC

          Home Loans Servicing, LP v. Mitchell, 2014 IL 116311, ¶ 18 (citing In re Marriage of

          Verdung, 126 Ill. 2d 542, 547 (1989)). “Providing effective service is a means of protecting

          an individual's right to due process by allowing for proper notification of interested

          individuals and an opportunity to be heard.” In re Dar. C., 2011 IL 111083, ¶ 61 (citing

          Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950)). “ ‘Every defendant in

          an action filed against him in this State is entitled to receive the best possible notice of the

          pending suit and it is only where personal service of summons cannot be had, that substituted

          or constructive service may be permitted.’ ” Nasolo, 364 Ill. App. 3d at 31 (quoting Bell

          Federal Savings & Loan Ass'n v. Horton, 59 Ill. App. 3d 923, 927 (1978)).

¶ 48         Personal jurisdiction acquired by publication is only allowed in limited cases where

          personal service could not be achieved, and then, only after strict compliance with statutory

          requirements. Bell Federal Savings & Loan Ass’n, 59 Ill. App. 3d at 926. Section 2-206 of

          the Code of Civil Procedure allows service by publication in actions affecting property. 735


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          ILCS 5/2-206 (West 2010). Under section 2-206, the plaintiff must file an affidavit

          “showing” that the defendant “on due inquiry cannot be found, or is concealed within this

          State, so that process cannot be served upon him or her, 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.” 735 ILCS 5/2-206(a) (West 2010). The Cook County circuit court has adopted

          a rule that elaborates on the requirement for the affidavit. Rule 7.3 provides in relevant part

          as follows:

                        “Pursuant to 735 ILCS 5/2-206(a), due inquiry shall be made to find the

                 defendant(s) prior to service of summons by publication. In mortgage

                 foreclosure cases, all affidavits for service of summons by publication must be

                 accompanied by a sworn affidavit by the individual(s) making such ‘due

                 inquiry’ setting forth with particularity the action taken to demonstrate an

                 honest and well directed effort to ascertain the whereabouts of the

                 defendant(s) by inquiry as full as circumstances permit prior to placing any

                 service of summons by publication.” Cook Co. Cir. Ct. R. 7.3 (Oct. 1, 1996).

¶ 49         “Our courts have determined that these statutory prerequisites are not intended as pro

          forma or useless phrases requiring mere perfunctory performance but, on the contrary,

          require an honest and well-directed effort to ascertain the whereabouts of a defendant by

          inquiry as full as circumstances permit.” Bank of New York v. Unknown Heirs & Legatees,

          369 Ill. App. 3d 472, 476 (2006) (citing Graham v. O'Connor, 350 Ill. 36, 41 (1932), and

          City of Chicago v. Leakas, 6 Ill. App. 3d 20, 27 (1972)). “Where the efforts to comply with

          these statutory provisions have been casual, routine, or spiritless, service by publication is not

          justified.” Bank of New York, 369 Ill. App. 3d at 476 (citing Home State Savings Ass’n v.


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          Powell, 73 Ill. App. 3d 915, 917 (1979), and Bell Federal Savings & Loan Ass’n, 59 Ill. App.

          3d at 927).

¶ 50         In the case at bar, the bank did not demonstrate a well-directed effort to ascertain the

          whereabouts of defendant by inquiry as full as the circumstances permitted. First, plaintiff’s

          attempts to serve defendant at his residence were “casual, routine, [and] spiritless.” Bank of

          New York, 369 Ill. App. 3d at 476. According to Wiebe’s affidavit, plaintiff attempted to

          serve defendant at his residence three times: (1) Thursday, May 27, 2010, at 11:15 a.m.; (2)

          Friday, May 28, 2010, at 8:35 a.m.; and (3) Sunday, May 30, 2010, at 9:55 a.m. Each attempt

          took place within four days and during the same three-hour timeframe on a Memorial Day

          weekend. The bank neither attempted to serve defendant at another time of the day when

          defendant might more likely be at home nor demonstrated any attempt to ascertain

          defendant’s work hours. The bank made no attempt to contact the condominium association

          to find defendant’s whereabouts, nor attempted to ascertain his employment from their

          records or from reliable others. Each attempt of service was made during traditional working

          hours or during a holiday weekend. While the bank attempted to serve defendant once on a

          weekend, plaintiff made this attempt on a holiday weekend when travel is not uncommon. As

          a result, we cannot say that the three attempts to serve defendant at those times and on those

          dates demonstrate a well-directed effort to ascertain the whereabouts of defendant by inquiry

          “as full as circumstances permit.” Bank of New York, 369 Ill. App. 3d at 476.

¶ 51         Moreover, Wiebe’s affidavit failed to demonstrate that there was no reason to return to

          defendant’s residence to attempt service again on a different day and at a different time. After

          the first attempt, Wiebe noted that defendant’s residence was located in a “4 story multi unit

          secured building. Def in bell system ings [sic] disconnected phone,” then noted that the “unit


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          still appears vacant.” After the second attempt, Wiebe noted that “[t]his visit confirms to me

          the unit is vacant”; however, he did not state any facts that would lead to this conclusion.

          Finally, after the third visit, Wiebe stated that defendant’s residence “is vacant, phone is

          disconnected, one neighbor says he heard he went back to his family in Poland.” Wiebe then

          attached two pictures of the building where defendant’s condo is located to the affidavit: (1)

          the first showed the interior of the condo building’s lobby through glass doors and (2) the

          second showed the exterior of the building.

¶ 52         We cannot say that a vague statement about a “disconnected phone” demonstrates that

          defendant had vacated his residence and could not be served in person with further attempts.

          The statement is not clear whether it is a mobile phone, a landline, or one connected to an

          intercom system in defendant’s building. Even if the statement was clear, we question how a

          disconnected landline demonstrates that defendant has vacated his residence. Inherently,

          mobile phones are not tied to one location, and intercom systems can malfunction. Moreover,

          we acknowledge defendant’s observation that “landline telephone usage has significantly

          decreased in the modern cell-phone era.”

¶ 53         We also cannot say that a statement from an unidentified neighbor that “he heard

          [defendant] went back to his family in Poland” demonstrates that defendant vacated his

          residence and that the bank made inquiry to his whereabouts as full as the circumstances

          permitted. Not only was the “neighbor” unidentified, but no address was provided for him or

          her so we do not know how far away he or she lived from defendant’s building or whether

          the neighbor lived in the building. The neighbor’s knowledge of defendant’s whereabouts

          was admittedly secondhand, and there is no indication in the record that Wiebe or the bank




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          made any attempts to corroborate the neighbor’s statement or confirm that defendant’s family

          even lives in Poland.

¶ 54          Neither do the pictures attached to the affidavit demonstrate that defendant had vacated

          his residence. Photographs of a multiunit building’s lobby and exterior do not demonstrate an

          inquiry into defendant’s whereabouts as full as the circumstances permitted.

¶ 55          We acknowledge the bank’s extensive records search as demonstrated by the Fertel

          affidavit, and that the law does not require a specific number of attempts or unduly

          exhaustive efforts to locate the whereabouts of a defendant. However, the bank searched only

          for “new” addresses, thereby confirming defendant’s claim that he has not lived anywhere

          else for years.

¶ 56          Accordingly, service by publication was not justified, the trial court lacked personal

          jurisdiction over the defendant, and any order entered by the trial court is void ab initio.

¶ 57                                       III. Defendant’s Burden

¶ 58          The bank argues that only after the defendant “file[s] an affidavit showing that upon due

          inquiry he could have been found *** must the plaintiff show it conducted a due inquiry.” In

          support of this argument, plaintiff cites Household Finance Corp. III v. Volpert, 227 Ill. App.

          3d 453, 455 (1992), and First Bank & Trust Co. of O’Fallon v. King, 311 Ill. App. 3d 1053,

          1057 (2000).

¶ 59          We do not find this argument persuasive. First, section 2-206 plainly requires the bank to

          file an affidavit “showing that the defendant resides or has gone out of this State, or on due

          inquiry cannot be found” before service by publication is justified. 735 ILCS 5/2-206(a)

          (West 2010). Moreover, the statement the bank cites from Volpert concerns when a plaintiff

          must produce evidence to establish due inquiry. Volpert, 227 Ill. App. 3d at 455 (“A


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          defendant may challenge such affidavit by filing an affidavit showing that upon due inquiry

          he could have been found. [Citation.] Upon defendant's challenge, plaintiff must produce

          evidence establishing due inquiry.”). Finally, King is easily distinguishable from the case at

          bar as the defendant in King failed to file any affidavit showing that upon due inquiry she

          could have been found. King, 311 Ill. App. 3d at 1057. Although a defendant is not required

          to file affidavits in order for the trial court to find a plaintiff’s affidavits insufficient,

          defendant in the present case did file affidavits showing that upon due inquiry he could have

          been found. Indeed, “[a] defendant may challenge a plaintiff’s section 2-206(a) affidavit by

          filing an affidavit showing that upon due inquiry, he could have been found.” Bank of New

          York v. Unknown Heirs & Legatees, 369 Ill. App. 3d 472, 476 (2006).

¶ 60                                        IV. Defendant’s Affidavits

¶ 61          Even if a defendant must “file an affidavit showing that upon due inquiry he could have

          been found *** before the plaintiff [must] show it conducted a due inquiry,” the defendant in

          the present case met this burden, and thus, the trial court erred in finding that all three of

          defendant’s affidavits were self-serving.

¶ 62          We evaluate the trial court’s decision as to the affidavits de novo. People ex rel. Waller v.

          Harrison, 348 Ill. App. 3d 976, 985 (2004) (“When the trial court rules on the

          legal sufficiency of an affidavit, we review de novo the trial court's ruling ***.”). We are not

          persuaded by the bank’s claim that this court should employ the manifest weight of the

          evidence standard. Deutsche Bank National Trust Co., 2012 IL App (1st) 111213, ¶ 17.

¶ 63          “Findings of fact are reviewed under the manifest weight of the evidence standard.”

          Cyclonaire Corp. v. ISG Riverdale, Inc., 378 Ill. App. 3d 554, 559 (2007). “This deferential

          standard is grounded in the reality that the circuit court is in a superior position to determine


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          and weigh the credibility of the witnesses, observe the witnesses’ demeanor, and resolve

          conflicts in their testimony.” People v. McDonough, 239 Ill. 2d 260, 266 (2010).

¶ 64         In the case at bar, we are reviewing only documentary evidence. “[W]here the

          evidence before a trial court consists of depositions, transcripts, or evidence otherwise

          documentary in nature, a reviewing court is not bound by the trial court’s findings and may

          review the record de novo.” Addison Insurance Co. v. Fay, 232 Ill. 2d 446, 453 (2009);

          People ex rel. Waller, 348 Ill. App. 3d at 985 (“Generally, the manifest weight of the

          evidence standard of review applies if the trial court heard courtroom testimony, but a de

          novo standard applies when the trial court heard no testimony and ruled solely on the basis of

          documentary evidence.”). We are just as competent to review the documentary evidence as

          the trial court. Addison Insurance Co., 232 Ill. 2d at 453 (“Without having heard live

          testimony, the trial court was in no superior position than any reviewing court to make

          findings, and so a more deferential standard of review is not warranted.”).

¶ 65          In addition, appellate courts review legal questions de novo (Ogden Chrysler Plymouth,

          Inc. v. Bower, 348 Ill. App. 3d 944, 951 (2004)) and the sufficiency of an affidavit is a legal

          question. Roe v. Jewish Children’s Bureau of Chicago, 339 Ill. App. 3d 119, 128 (2003)

          (“[A] court's determination of whether an affidavit offered in connection with a motion for

          summary judgment complies with Rule 191 is a question of law subject to de novo review.”).

          Therefore, our standard of review on appeal is de novo, which means that we perform the

          same analysis that a trial judge would perform. Khan v. BDO Seidman, LLP, 408 Ill. App. 3d

          564, 578 (2011).




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¶ 66                                    A. Defendant’s First Affidavit

¶ 67         Defendant disputes the trial court’s characterization of his first affidavit as “self-serving,”

          claiming that it showed that the bank could have found him upon due inquiry. See Bank of

          New York, 369 Ill. App. 3d at 476.

¶ 68         Illinois Supreme Court Rule 191(a) provides in relevant part that “affidavits submitted in

          connection with a motion to contest jurisdiction over the person *** shall be made on the

          personal knowledge of the affiants; [and] shall set forth with particularity the facts upon

          which the claim, counterclaim, or defense is based; shall have attached thereto sworn or

          certified copies of all documents upon which the affiant relies; shall not consist of

          conclusions but of facts admissible in evidence.” Ill. S. Ct. R. 191(a) (eff. Jan. 4, 2013).

¶ 69         In Young v. Chicago Federal Savings & Loan Ass’n, 180 Ill. App. 3d 280, 282-83 (1989),

          the defendant savings and loan association claimed that the plaintiff assignee failed to

          establish an assignment of a title policy where the savings and loan association’s vice

          president mailed a copy of the title policy to the plaintiff. In support of the defendant’s

          motion for summary judgment, the defendant attached an affidavit, which the appellate court

          found to be self-serving. Young, 180 Ill. App. 3d at 284. The affidavit stated that the savings

          and loan association’s vice president " 'sent the Title Policy in question *** for informational

          purposes only.' " Young, 180 Ill. App. 3d at 284. The appellate court found that the affidavit

          “fail[ed] to set forth the facts surrounding the assignment transaction. [It] merely state[d] that

          the policy was sent for informational purposes, which is a self-serving conclusion.” Young,

          180 Ill. App. 3d at 284. The appellate court also noted that “[d]efendant's claim that the

          policy was sent for informational purposes only is not supported by the record.” Young, 180

          Ill. App. 3d at 284.


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¶ 70         In contrast, in Doria v. Village of Downers Grove, 397 Ill. App. 3d 752, 755 (2009), the

          plaintiff argued on appeal that the affidavit of the defendant’s traffic engineering manager

          violated Supreme Court Rule 191. The appellate court held that the following statements

          from the traffic engineering manger’s affidavit established “his conclusion that the gravel lot

          was not intended for parking” (Doria, 397 Ill. App. 3d at 756) and, therefore, the affidavit

          was in compliance with Supreme Court Rule 191:

             “he was the traffic engineering manager for [the] defendant and that his job duties

             included ‘determining the intended use of various property’ within Downers Grove ***.

             [He] noted that the lot in question in this case had been unpaved for ‘the past 20 years’

             and that defendant had never placed parking meters, ‘public parking’ signs, concrete

             parking bumpers, or painted yellow parking lines in the lot.” Doria, 397 Ill. App. 3d at

             754.

          The appellate court stated that “ ‘[i]f, from the document as a whole, it appears that

          the affidavit is based upon the personal knowledge of the affiant and there is a reasonable

          inference that the affiant could competently testify to its contents at trial, Rule

          191 is satisfied.’ ” Doria, 397 Ill. App. 3d at 756 (quoting Kugler v. Southmark Realty

          Partners III, 309 Ill. App. 3d 790, 795 (1999)).

¶ 71         Moreover, in Prudential Property & Casualty Insurance Co. v. Dickerson, 202 Ill. App.

          3d 180, 183 (1990), the defendant filed a motion to quash service of process and an affidavit

          in support. “In the affidavit, [the defendant] denied that he resided at the address where the

          service was made and averred that at the time of the alleged service, he resided at [a different

          address].” Dickerson, 202 Ill. App. 3d at 185. The appellate court found that “the appellant

          placed the validity of the substituted service in issue through his affidavit. Where such an


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          affidavit stands unrebutted or uncontradicted, as here, it serves as a proper basis for quashing

          service of process.” Dickerson, 202 Ill. App. 3d at 185.

¶ 72          In reviewing defendant’s first affidavit, dated October 17, 2011, we conclude that it is

          more like the affidavit in Doria than the affidavit in Young. In the case at bar, defendant’s

          first affidavit stated that he “resided at 1675 Mill Street Unit # 202, Des Plaines, Illinois

          60616 *** continuously since [he] purchased the condominium in June 2007. Specifically,

          [he] resided at the Property at all times, on, before and after May 25, 2010.” In Doria, the

          appellate court stated that “ ‘[i]f, from the document as a whole, it appears that

          the affidavit is based upon the personal knowledge of the affiant and there is a reasonable

          inference that the affiant could competently testify to its contents at trial, Rule

          191 is satisfied.’ ” Doria, 397 Ill. App. 3d at 756 (quoting Kugler, 309 Ill. App. 3d at 795).

          Accordingly, it is clear that defendant has personal knowledge of his own residence and he

          could competently testify to his residence at trial. Although the traffic engineering manager’s

          affidavit provided more detail than defendant’s affidavit, more information was needed to

          show that the traffic engineering manager had personal knowledge that the gravel lot was not

          intended for parking. Thus, it is clear that defendant’s affidavit is based on his own personal

          knowledge of his residence, which he can competently testify to in trial. Burks Drywall, Inc.

          v. Washington Bank & Trust Co., 110 Ill. App. 3d 569, 576 (1982) (“[R]ule [191] is satisfied

          if from the document as a whole it appears that the affidavit is based upon the personal

          knowledge of the affiant and there is a reasonable inference that the affiant could

          competently testify to its contents at trial.”).

¶ 73          In contrast, the case at bar is distinct from Young where “[d]efendant’s claim that the

          policy was sent for informational purposes only is not supported by the record.” Young, 180


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          Ill. App. 3d at 284. Here, the record does not contradict defendant’s claim that he resided at

          the property since the process server’s attempts occurred over the Memorial Day weekend

          and within the same timeframe, namely, between 8:30 a.m. and 11:30 a.m. In addition, Fertel

          claims that he searched only for “new” addresses for defendant and could not find any,

          thereby corroborating defendant’s affidavit that there was no other address for him.

¶ 74         Furthermore, it was not necessary for defendant to attach additional evidence to his

          affidavit to confirm his residence. In Dickerson, the appellant’s affidavit “denied that he

          resided at the address where the service was made and averred that at the time of the alleged

          service, he resided at [a different address].” Dickerson, 202 Ill. App. 3d at 185. The appellate

          court found his affidavit to be a “proper basis for quashing service of process” because it

          “[stood] unrebutted or uncontradicted.” Dickerson, 202 Ill. App. 3d at 185. Similarly,

          defendant’s first affidavit stated that he resided continuously at the property when the process

          server attempted to serve him. In addition, the bank did not file an affidavit to contradict

          defendant’s affidavits.

¶ 75         Thus, it was error for the trial court to disregard defendant’s first affidavit as self-serving.

¶ 76                                          B. Defendant’s Second Affidavit

¶ 77         Defendant also disputes the trial court’s characterization of his second affidavit as “self-

          serving.” See Bank of New York, 369 Ill. App. 3d at 476. In reviewing defendant’s second

          affidavit, we also conclude that it is more like the affidavit in Doria than the affidavit in

          Young. For instance, in Doria, the traffic engineering manager stated that “he was the traffic

          engineering manager for [the] defendant and that his job duties included ‘determining the

          intended use of various property’ within Downers Grove ***. [He] noted that the lot in

          question in this case had been unpaved for ‘the past 20 years’ and that defendant had never


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       No. 1-13-3553


          placed parking meters, ‘public parking’ signs, concrete parking bumpers, or painted yellow

          parking lines in the lot.” Doria, 397 Ill. App. 3d at 754.

¶ 78         Similarly, defendant’s second affidavit, dated December 5, 2011, made detailed

          statements to confirm his residence. For example, defendant stated that the process server

          could have served him at the property before or after working hours, during the week, and on

          weekends and that the process server would have found the property to be occupied if he had

          looked inside because the property contained defendant’s personal belongings and was his

          primary place of residence. Moreover, defendant specifically excluded holidays from the list

          of times he could have been found at the property. In addition, defendant’s statement, that

          plaintiff would have found the property occupied if it had looked inside because it contained

          his personal belongings and was his primary place of residence, is a statement that defendant

          has personal knowledge of and can reasonably testify to during trial. Doria, 397 Ill. App. 3d

          at 756.

¶ 79         Unlike the affidavit in Young that provided no factual information (Young, 180 Ill. App.

          3d at 284), defendant’s second affidavit provided detailed information that satisfied Supreme

          Court Rule 191. Ill. S. Ct. R. 191(a) (eff. Jan. 4, 2013) (“affidavits *** shall be made on the

          personal knowledge of the affiants; shall set forth with particularity the facts upon which the

          claim, counterclaim, or defense is based.”). Thus, the trial court erroneously disregarded

          defendant’s second affidavit as self-serving.

¶ 80         We need not consider defendant’s third affidavit on this appeal, since we conclude that

          the trial court erred in disregarding defendant’s first two affidavits as self-serving and that

          defendant has shown that plaintiff could have found him upon due inquiry.




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¶ 81                                           CONCLUSION

¶ 82         In sum, (1) defendant’s notice of appeal adequately sets out that it appeals the trial court’s

          denial of defendant’s motion to quash service by publication; (2) the trial court failed to

          obtain personal jurisdiction over defendant because plaintiff failed to meet the statutory

          prerequisites for service by publication under section 2-206; and (3) although defendant had

          the burden of showing he could have been found upon due inquiry, defendant met this burden

          and the trial court erred in disregarding defendant’s affidavits, and service is quashed.

¶ 83         Reversed and remanded.




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