Kreisman Law Offices Professional Corporation
Slawomir Lubowicki and his wife, Agnieszka Lubowicka, held a mortgage from the plaintiff, CitiMortgage (Citi) in the amount of $329,000 for their home in Mount Prospect, Ill. In August 2009, Citi filed a lawsuit alleging that Lubowicki and his wife were in default in the payment of their mortgage and sought a writ of foreclosure on the property.
The special process server hired to deliver service of summons on the Lubowicki family testified that he served Lubowicki’s wife on Aug. 18, 2009, though his description of the time at which he served it was inconsistent with his affidavits. Further, the process server claimed that he mailed a copy of the summons and complaint in a sealed envelope, addressed to Lubowicki at his residence in Mount Prospect.
On Aug. 30, 2009, the court found that Lubowicki and his wife were in default for failing to appear or plead and entered a judgment for foreclosure and sale of the property. Subsequently, the property was sold in a judicial foreclosure sale that was confirmed by the trial judge on March 10, 2011.
On Sept. 12, 2011, Ms. Lubowicka filed an appearance with a motion to quash service and to vacate the default judgment. In the wife’s affidavit and from her employer, it was claimed that on the date that the process server claimed he served the wife, she was at work. That was alleged to be true the two times that the process server said he served process.
Citi filed a response claiming that Lubowicka (the wife) had failed to produce clear and convincing evidence that she was not served. The court denied Lubowicka’s motion and denied her motion to reconsider.
On April 5, 2012, Lubowicki filed a motion to quash service of summons. He claimed that the person served at his residence was not wife, but his sister. He also claimed that since both he and his wife were the named party defendants, the process server was obliged to leave two copies of the summons and complaint.
According to the process server, only one copy of the complaint and summons was delivered at the time of his service. The trial court denied Lubowicki’s motion and he took this appeal.
The Illinois Appellate Court found that jurisdiction is obtained only if process is properly served. Where there is no jurisdiction, the court’s order can have no effect on the property that once belonged to Lubowicki. Lubowicka was not a party to the appeal. Lubowicki was not personally served, but instead service was made by substituted service. The law requires that a process server deliver a copy of the complaint and summons at the defendant’s usual residence with either a family member or a person residing there who is over 13 years old. Under the law, the recipient must be told about the contents of the summons and the process server must mail a copy in a sealed envelope to the defendant at his/her usual residence.
Here, the process server was in compliance with all of the requirements of substitute service. Regardless as to whether the wife was served or a sister, copies of the complaint and summons were left there, and according to the unchallenged testimony of the process server, another copy was mailed to the residence.
The court concluded that it appeared that the process server followed the rules for substitute service, and the decision of the trial judge was affirmed.
CitiMortgage, Inc. v. Slawomir Lubowicki, 2013 IL App. (1st) 121576-U.
Kreisman Law Offices has been handling commercial litigation and business disputes for individuals and businesses for more than 37 years in and around Chicago, Cook County and its surrounding areas, including Morton Grove, Bolingbrook, Matteson, Chicago (Rogers Park), Chicago (Andersonville), Chicago (Lincoln Square), Chicago (Irving Park), Barrington, Chicago Ridge, Cary and Elmhurst, Ill.
Related blog posts:
Opposing Statutes of Limitation Chosen in Appellate Court Case; Advanced Credit v. Linares