JPMorgan Chase Bank National Association v. Ivanov

(citing Home State Savings Ass’n v.

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,

. 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, or 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 the circumstances permit.” Bank of New York,

227 Ill. App. 3d 453, 455

16 No. 1-13-3553

¶ 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

appears to be vacant.” After the second attempt, Wiebe noted that “this 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

17 No. 1-13-3553

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

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,

(1992), and First Bank & Trust Co. of O’Fallon, Illinois 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

18 No. 1-13-3553

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, Ill. App. 3d at 455 (“[A] 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 VI. 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

19 No. 1-13-3553

¶ 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, 569

(2007). “This deferential

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

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,

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

20 No. 1-13-3553

same analysis that a trial judge would perform. Khan v. BDO Seidman, LLP,

408 Ill. App. 3d 564, 578

(2011).

¶ 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,

180 Ill. App. 3d 280, 282-83

¶ 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; 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,

(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,

. The affidavit stated that the savings

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

purposes only.” Young,

. 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,

. The appellate court also noted that “[d]efendant's claim that the

21 No. 1-13-3553

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

309 Ill. App. 3d 790, 795

¶ 70 In contrast, in Doria v. Village of Downers Grove, 397 Ill. App. 3d at 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” 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

754-56.

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,

(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

22 No. 1-13-3553

address].” Dickerson,

. The appellate court found that “the appellant

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

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

service of process.” Dickerson,

110 Ill. App. 3d 569, 576

¶ 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.,

(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.”).

23 No. 1-13-3553

¶ 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,

. 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,

. The appellate

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

“[stood] unrebutted or uncontradicted.” Dickerson,

. 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,

. 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

24 No. 1-13-3553

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.

¶ 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 (