Sep 7, 2012

Additional service requirements for financial institutions in Illinois mortgage foreclosure cases

NOTE: The following case is an unreleased Opinion and is subject to Revision or Withdrawal

Citimortgage, Inc. v. Cotton, 2012 IL App. (1st Dist.) 102438 (Aug. 28, 2012)


Approximately a month before a mortgage foreclosure action was initiated, the Mortgagee, Citimortgage, Inc. (“Citimortgage”), received a letter from an attorney confirming that the attorney had been granted power of attorney on the mortgage account of Ernest Cotton (“Cotton”). Citimortgage then filed a complaint to foreclose mortgage and attempted to serve Cotton 19 times over the next two months. Citimortgage attempted service at two different addresses, including the property address and at various dates and times but was unsuccessful. Citimortgage then filed a motion for alternative service with an affidavit attached which stated Cotton could not be found after due inquiry. Cotton was then served by publication and notices of the action were mailed to the property address and an alternative address. Citimortgage was subsequently granted an order of default against Cotton and the property was sold. The attorney, who originally sent the power of attorney letter, then filed an appearance on Cotton’s behalf and filed a motion to vacate default judgment, rescind the sale and quash service by publication. The attorney argued that Cotton could have been located through his attorney or his place of employment. Cotton’s motion to quash was denied and his request for an evidentiary hearing was denied. Cotton appealed the trial court’s decision.


The Appellate Court held that to properly execute an affidavit in support of its motion for service by publication, it must conduct both diligent inquiry in ascertaining the defendant’s residence and due inquiry in ascertaining the defendant’s whereabouts. The Court applied this requirement to Cotton’s case and determined that Citimortgage should have attempted to serve Cotton at his place of employment, as Citimortgage possessed that information. Furthermore, Citimortgage should have contacted the attorney who sent the original power of attorney letter to try to ascertain Cotton’s whereabouts. The nineteen attempts of service, at the property address and alternative address, were insufficient to meet the diligent inquiry and due inquiry requirements alone.

Accordingly, the Appellate Court reversed the judgment of the circuit court and remanded the case to the circuit court for an evidentiary hearing to determine whether diligent inquiry and due inquiry were conducted in an effort to locate Cotton prior to the court granting leave for service by publication.


Although the decision in Citimortgage v. Cotton is not yet released, it provides insight into the Appellate Court’s view on the elements to meet “due inquiry” and “diligent inquiry.” Attempted service at the mortgagor’s last known address or last known addresses is insufficient, even if the service attempts are at various times of the day. Rather the Plaintiff-mortgagee is required to attempt service at the mortgagor’s place of employment, if known, and/or attempt to contact any attorney who has been associated with the case. An attorney may limit its representation to pre-foreclosure loss mitigation efforts or, in the event a foreclosure complaint is filed, continue to represent the mortgagor in the foreclosure litigation. Although there is no way to predict if the attorney will extend representation to the mortgage foreclosure litigation, financial institutions and their attorneys are responsible for reaching out to the mortgagor’s attorney in an attempt to ascertain the whereabouts of the mortgagor.

While the service requirements for Plaintiff-mortgagees are exigent, the recent Appellate Court opinion implies accountability for attorneys representing mortgagors in foreclosure litigation. In an Illinois mortgage foreclosure case, sometimes the objective is to delay the foreclosure process and litigation to allow the mortgagor to remain in the property for as long as possible. If a Plaintiff-mortgagee is unable to ascertain the whereabouts of a mortgagor or the mortgagor is avoiding service, the foreclosure process could become a very lengthy process. The recent case suggests that Plaintiff-mortgagees must reach out to an attorney representing a Defendant-mortgagor to request contact information and, in turn, the attorney representing the Defendant would be required to provide information regarding the whereabouts of his or her client. If the attorney is held accountable for service avoidance issues it may reduce the instances of service avoidance many financial institutions face.

Due to the recent opinion, financial institutions need to take an active role in supplying contact information to process servers. Relying solely on the searches done by the process server’s employer is no longer a viable defense to a motion to quash service.

Please feel free to contact me with any questions regarding this opinion or any other recent opinion related to Illinois Mortgage Foreclosure Law.

This Chuhak & Tecson, P.C. communication is intended only to provide information regarding developments in the law and information of general interest. It is not intended to constitute advice regarding legal problems and should not be relied upon as such.

Client Alert authored by: Sarah K. Lash, Esq.

Contributing editor: Lindsey Paige Markus

Contributing editor: Anel Bautista