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                                      Appellate Court                        Date: 2017.05.15
                                                                             07:54:36 -05'00'




                 Urban Partnership Bank v. Ragsdale, 2017 IL App (1st) 160773



Appellate Court          URBAN PARTNERSHIP BANK, as Assignee of the Federal Deposit
Caption                  Insurance Corporation, as Receiver for ShoreBank, Plaintiff-
                         Appellee, v. FREDERICK RAGSDALE a/k/a FREDERICK
                         RAGSDALE, JR., NICKOLE RAGSDALE a/k/a NICKOLE J.
                         RAGSDALE, FREESTAR BANK N.A., FOOD & PAPER SUPPLY
                         COMPANY, 1974 DEVELOPMENT, INC., AUTOMOTIVE
                         FINANCE CORPORATION d/b/a AFC AUTOMOTIVE FINANCE
                         CORPORATION d/b/a AFC, EDWARD HINES LUMBER
                         COMPANY, CAPITAL ONE BANK (USA) N.A., UNITED
                         STATES OF AMERICA, THE CITY OF CHICAGO, THE STATE
                         OF ILLINOIS, UNKNOWN OWNERS and NON-RECORD
                         CLAIMANTS, Defendants (Nickole Ragsdale, Defendant-
                         Appellant).



District & No.           First District, First Division
                         Docket No. 1-16-0773



Filed                    March 20, 2017



Decision Under           Appeal from the Circuit Court of Cook County, No. 12-CH-19887; the
Review                   Hon. Bridget A. Mitchell, Judge, presiding.



Judgment                 Order reversed; default and default judgment vacated; cause
                         remanded.
     Counsel on                Law Office of Stephen D. Richek, of Chicago (Stephen D. Richek, of
     Appeal                    counsel), for appellant.

                               Chuhak & Tecson, P.C., of Chicago (Kara Allen, of counsel), for
                               appellee.



     Panel                     JUSTICE HARRIS delivered the judgment of the court, with opinion.
                               Presiding Justice Connors and Justice Simon concurred in the
                               judgment and opinion.


                                                OPINION

¶1          This is an appeal from a mortgage foreclosure action involving residential property owned
       by defendant-appellant, Nickole Ragsdale (defendant). Urban Partnership Bank (plaintiff), as
       successor of ShoreBank, provided defendant with a loan, which was secured by a residential
       mortgage on 4601 S. Vincennes (hereinafter the Subject Property) in Chicago. Defendant
       defaulted on the loan. Plaintiff then filed this foreclosure action to recover the Subject
       Property. The plaintiff failed to personally serve the defendant with a copy of the foreclosure
       action. After several unsuccessful attempts, the plaintiff filed a motion for alternative service,
       which the circuit court granted. The plaintiff then carried out the alternative service, and the
       circuit court entered judgment in favor of plaintiff in July 2014. The Subject Property was sold
       at judicial sale in November 2014, which the circuit court confirmed in February 2015.
¶2          In June 2015, the defendant filed a petition under section 2-1401 of the Code of Civil
       Procedure (735 ILCS 5/2-1401 (West 2014)), seeking to quash service. After a protracted
       briefing schedule, the circuit court denied the petition in March 2016. Defendant now appeals
       from the circuit court order denying her section 2-1401 petition.
¶3          Upon review, we find the circuit court did err in denying the section 2-1401 petition. As set
       forth below, the due diligence affidavit attached to the motion for alternative service failed to
       comply with the requirements set forth in the applicable section. Accordingly, we hold the
       defendant was not properly served and the circuit court did not have personal jurisdiction over
       her.

¶4                                           JURISDICTION
¶5         On March 9, 2016, the circuit court denied defendant’s section 2-1401 petition. On March
       22, 2016, defendant filed her notice of appeal. Accordingly, this court has jurisdiction over this
       matter pursuant to article VI, section 6, of the Illinois Constitution, and Illinois Supreme Court
       Rules 301 and 304(b)(3). Ill. Const. 1970, art. VI, § 6; Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); R.
       304(b)(3) (eff. Feb. 26, 2010).




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¶6                                            BACKGROUND
¶7          Plaintiff loaned defendant $1,000,000 (Loan) on April 17, 2007. Defendant executed a
       note in favor of plaintiff as security for the Loan and a residential mortgage on the Subject
       Property. Defendant defaulted on the Loan when she stopped making payments in October
       2009. As a result of defendant’s default, plaintiff filed a complaint to foreclose mortgage and
       for other relief on May 30, 2012. At the same time, a summons for defendant was issued with
       the Subject Property listed as her service address.
¶8          Plaintiff hired ATG LegalServe, Inc. (ATG) to help effectuate service on defendant. Paul
       Marik of ATG first attempted to serve defendant at the Subject Property on June 20, 2012.
       Even though he observed movement inside the building of the Subject Property and knocked,
       nobody answered the door. Since no one responded, he left his contact card. Marik attempted
       to serve the defendant again at the Subject Property on June 26, 2012. He reported that
       someone inside the garage opened it slightly, but that person would not acknowledge his
       presence or respond to his shouts. The person inside the garage closed the door before Marik
       left. Based on this, Marik concluded the occupants were avoiding service.
¶9          Marik again attempted service for a third time on June 30, 2012. However, no one
       answered the door on this attempt. He did not observe any movement or activity inside the
       Subject Property. He left another contact card. Marik attempted service for a fourth time on
       July 3, 2012, but received no response. Christopher Gornik, also an employee of ATG,
       attempted a fifth service at the Subject Property on August 29, 2012. At this time, he observed
       the Subject Property to be vacant.
¶ 10        On November 28, 2012, plaintiff filed a motion for alternate service of process; however,
       plaintiff continued its attempts to serve defendant. In support of its motion, plaintiff submitted
       the affidavits of three employees with ATG: (1) the affidavit of process server Marik regarding
       his unsuccessful attempts to serve defendant’s husband at the Subject Property, (2) the
       affidavit of process server Gornik regarding his unsuccessful attempt to serve defendant’s
       husband at the Subject Property, and (3) the due diligence affidavit of Nicole Hoffman.
¶ 11        Despite filing the motion for alternate service, plaintiff hired E.L. Johnson Investigations,
       Inc. (ELJ), to continue attempting to serve defendant. On December 2, 2012, a representative
       of ELJ served defendant’s husband at 8323 Arrowhead Farm Drive, Burr Ridge. Between
       December 3 and December 13, 2012, ELJ attempted to serve defendant at the Subject Property
       six times, but each attempt was unsuccessful. On December 17, 2012, ELJ conducted its own
       due diligence search of public records in an attempt to discover a different address to serve
       defendant. The results of the search identified the Subject Property as her last known address.
¶ 12        On February 13, 2013, the circuit court granted plaintiff’s motion for alternate service of
       process. The order called for plaintiff to serve defendant and her husband by posting the
       summons and complaint at the Subject Property and sending both through regular and certified
       mail. On May 1, 2014, a process server from ATG posted the alias summons and complaint for
       defendant at the Subject Property and mailed a copy to the same address the following day.
       The circuit court entered judgment in favor of plaintiff on July 31, 2014. The Subject Property
       sold at judicial sale on November 3, 2014 and confirmed by the circuit court on February 9,
       2015.
¶ 13        Defendant filed her section 2-1401 petition on June 30, 2015. The petition sought to quash
       service and vacate the default and default judgment entered against her. She alleged that on the
       exercise of due diligence, she could have been found at 8323 Arrowhead Farm Drive, Burr

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       Ridge, starting February 2012. After a lengthy briefing schedule, the circuit court denied
       defendant’s petition on March 9, 2016. This timely appeal follows.

¶ 14                                            ANALYSIS
¶ 15        Defendant raises only one issue on appeal—whether the circuit court erred in denying her
       section 2-1401 petition, based on a failure to comply with the statutory requirements for
       service by alternative means. Defendant contends that the circuit court lacked personal
       jurisdiction over her because she was never personally served and because plaintiff failed to
       comply with the statutory requirements necessary to permit alternative service. Based on this,
       she argues that the judgment entered against her on July 31, 2014, is void and cannot be
       enforced against her.
¶ 16        Section 2-1401 allows for relief from final orders and judgments more than 30 days but less
       than two years after their entry. 735 ILCS 5/2-1401 (West 2014). However, this two-year
       period does not apply where the petitioner alleges that the judgment is void. Sarkissian v.
       Chicago Board of Education, 201 Ill. 2d 95, 103 (2002). A party may utilize a section 2-1401
       petition to bring a legal challenge to a final judgment or order. Warren County Soil & Water
       Conservation District v. Walters, 2015 IL 117783, ¶ 31. Where, as in this case, the petitioner
       presents solely a legal claim, such as the judgment should be vacated as void, we review the
       ruling on the petition de novo. Id. ¶¶ 47-48. When no evidentiary hearing occurs, we also apply
       a de novo standard of review to the question of whether the trial court obtained personal
       jurisdiction. Abbington Trace Condominium Ass’n v. McKeller, 2016 IL App (2d) 150913,
       ¶ 10.
¶ 17        Section 2-203 of the Code allows for service of process by leaving a copy of the summons
       with the defendant personally, or by leaving a copy at the defendant’s usual place of abode
       with a family member or a person residing there age 13 or older, along with mailing the
       summons to that address. 735 ILCS 5/2-203 (West 2014). If such service is impractical, the
       plaintiff may request that the trial court allow for alternative service under section 2-203.1 of
       the Code. 735 ILCS 5/2-203.1 (West 2014). A motion for service brought pursuant to section
       2-203.1 must include an affidavit, stating the type of investigation made to determine the
       defendant’s whereabouts and why service is impractical under section 2-203, “including a
       specific statement showing that a diligent inquiry as to the location of the individual defendant
       was made and reasonable efforts to make service have been unsuccessful.” Id. The courts may
       then allow service in any manner consistent with due process. Id. “Courts do not favor those
       who seek to evade service of summons.” In re Marriage of Schmitt, 321 Ill. App. 3d 360, 370
       (2001).
¶ 18        Serving a copy of a summons and complaint on a party-defendant is an essential part of the
       litigation process and allows a court to obtain personal jurisdiction over that defendant. A court
       must have personal jurisdiction over the parties in order to enter a valid judgment. U.S. Bank
       National Ass’n v. Johnston, 2016 IL App (2d) 150128, ¶ 27. Service of process protects a
       party’s right to due process through proper notification and providing an opportunity to be
       heard. Johnston, 2016 IL App (2d) 150128, ¶ 28. “[A] failure to effect service as required by
       law deprives a court of jurisdiction over the person, and any default judgment based on
       defective service is void.” Id. A judgment rendered without personal jurisdiction is void even if
       the defendant had actual knowledge of the proceedings. State Bank of Lake Zurich v. Thill, 113


                                                   -4-
       Ill. 2d 294, 308 (1986). Such a judgment may be attacked at any time, and the waiver rule does
       not apply. Mugavero v. Kenzler, 317 Ill. App. 3d 162, 166 (2000).
¶ 19        Defendant argues that plaintiff failed to comply with the requirements of section 2-203.1
       because the due diligence affidavit submitted in support of the motion for alternative service of
       process failed to set forth facts demonstrating that the affiant engaged in any type of due
       diligence inquiry to determine an alternate location to serve her. In support of her section
       2-1401 petition, both the defendant and her husband averred that they moved to 8323
       Arrowhead Farm Drive, Burr Ridge, IL, in January 2012. They also each state that, on the
       exercise of due inquiry, defendant could have been found there in February 2012. In its
       response brief, the plaintiff argues that defendant’s affidavit is self serving and the affidavits
       attached to the motion for alternative service were sufficient to show due diligence in
       compliance with section 2-203.1.
¶ 20        A review of Hoffman’s due diligence affidavit shows that plaintiff failed to conduct any
       type of inquiry into where defendant may be living after finding the Subject Property vacant.
       While there are no magic words that an affidavit in support of a section 2-203.1 motion must
       include, the affidavit must still set forth facts that demonstrate a diligent inquiry as to the
       location of the defendant. People ex rel. Waller v. Harrison, 348 Ill. App. 3d 976, 980-81
       (2004). The term “ ‘due inquiry’ is not intended as a pro forma or useless phrase, requiring
       only perfunctory performance, but on the contrary, requires honest and well-directed effort to
       ascertain the whereabouts of a defendant by an inquiry as full as circumstances can permit.”
       City of Chicago v. Leakas, 6 Ill. App. 3d 20, 27 (1972). Here, the affidavit does not identify any
       well directed effort to obtain an alternate address for defendant and is therefore fatally
       defective.
¶ 21        Plaintiff argues that Hoffman’s affidavit complies with the diligent inquiry requirements. It
       argues her affidavit shows that ATG’s search did not reveal updated address information for
       defendant because Hoffman states that she “knew of no other address, location, or avenue of
       discovery to pursue in order to successfully serve [defendant].” Despite plaintiff’s argument in
       its brief, the actual affidavit shows that no inquiry was performed. The first four paragraphs
       reiterate the four attempts made by Marik and his notice that the Subject Property was vacant
       by August 29, 2012. It then states, “[w]e know of no other address, location or avenue of
       discovery to pursue at this time to successfully execute service upon Fredrick and Nikole
       Ragdale.” This statement does not fulfill the requirements of section 2-203.1. The statement
       does not identify any type of investigation into defendant’s current location, let alone an honest
       and well-directed one as permitted by the circumstances.
¶ 22        While plaintiff contends that defendant did not show she could have been found via a
       diligent inquiry, the record demonstrates that on December 2, 2012, plaintiff served
       defendant’s husband at 8323 Arrowhead Farm Drive, Burr Ridge, the same place the defendant
       said “on the exercise of due inquiry [she] could have been found there any time after February
       2, 2012.” Moreover, the service on the husband occurred well before plaintiff served the alias
       summons in May 2014 or sought an entry of default against defendant in July 2014. Plaintiff
       reiterated in the motion for default that defendant could not be found. However, plaintiff made
       no attempts to serve defendant at the Burr Ridge address, even after serving her husband there.
       Plaintiff fails to explain how it could serve the husband at that address and yet made no attempt
       to serve the defendant wife.


                                                   -5-
¶ 23       We also reject plaintiff’s reliance on the due diligence affidavit of ELJ employee, Andrew
       Sopkin, which was attached to the motion for default filed on July 31, 2014. While plaintiff
       correctly asserts that the motion is part of the appellate record and does state the affiant
       engaged in a diligent search and inquiry, it completely ignores the fact that this affidavit was
       not part of the motion for alternative service filed November 28, 2012. Furthermore, plaintiff
       fails to cite any case authority for the proposition that this affidavit can be used to support a
       motion filed almost two years prior. The affidavit was not before the circuit court when the
       motion was granted and we will not consider it.
¶ 24       In reaching our decision, this court has reviewed previous cases dealing with section
       2-203.1 and its diligent inquiry requirement. A review of those cases demonstrates the facts
       here mirror those where diligent inquiry was found lacking. In Sutton v. Ekong, the court found
       a lack of diligent inquiry because the plaintiff failed to engage in even a “basic search” that
       would have easily revealed defendant’s business address. 2013 IL App (1st) 121975, ¶¶ 22-23.
       In Mugavero v. Kenzler, the court found plaintiff’s affidavit demonstrated “virtually no
       investigation into defendant’s current whereabouts, much less the ‘diligent inquiry’ that the
       section requires.” 317 Ill. App. 3d at 165. However, in People ex rel. Weller v. Harrison, this
       court found no issue with plaintiff’s affidavit because it averred a search of court records,
       attempts to serve defendant at three different locations, and despite her diligent effort, she
       could find no other location to serve defendant. 348 Ill. App. 3d at 980-81. The affidavit at
       issue here contains deficiencies similar to those affidavits rejected by the court in Ekong and
       Mugavero, and lacks details showing any investigation took place, unlike the affidavit in
       Harrison.
¶ 25       Because plaintiff failed to comply with the diligent inquiry requirements found in section
       2-203.1, defendant was not properly served and the circuit court never obtained personal
       jurisdiction over her. Accordingly, the circuit court lacked jurisdiction to default defendant and
       enter a default judgment against her. We therefore vacate the default and default judgment
       entered against her.

¶ 26                                        CONCLUSION
¶ 27       For the reasons stated above, we reverse the order in which the circuit court denied
       defendant’s section 2-1401 petition, seeking to quash service. Accordingly, we vacate the
       default and default judgment entered against defendant and remand the cause for further
       proceedings consistent with this opinion.

¶ 28      Order reversed; default and default judgment vacated; cause remanded.




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