“Abode Service” Constitutes “Personal Service” Under The Illinois Mortgage Foreclosure Law

January 10, 2013

In Metrobank v. Cannatello, 2012 IL App (1st) 110529 (January 9, 2012), the First District Appellate Court adopted a definitive standard for “personal service” in foreclosure cases.  Section 5/15-1508(e)[1] of the Illinois Mortgage Foreclosure Law (“IMFL”) provides that a personal deficiency judgment may be entered for any balance of money that may be found due to the plaintiff, over and above the proceeds of the judicial sale, only in cases where there was personal service on the persons liable for the mortgage indebtedness, unless they had entered their appearance in the foreclosure action.  In practice, many courts at the trial level were interpreting “personal service” to require service on the individually named party, and finding that service on persons of legal age residing at the party’s abode was insufficient to meet this standard.

Plaintiff-appellant, Metrobank, filed its complaint against defendant-mortgagor, Frank R. Canatello, praying for a judgment of foreclosure, sale of the property, and a personal judgment for any deficiency balance found due after sale.  The Cook County Sheriff served the complaint on Cantello by leaving a copy with a member of his family at his usual place of abode, and by mailing a copy to the same address.  Canatello failed to appear in the foreclosure action and answer the complaint, and a default judgment of foreclosure and sale was entered in favor of Metrobank.  After the property was sold at a judicial sale, a deficiency balance remained in the amount of $51,956.89, which Metrobank sought to recover against Canatello when it filed its motion to confirm the sale.  The circuit court confirmed the sale of the property, but denied the request for a personal deficiency judgment, finding that “abode service” and not “personal service” was had on the defendant.

Metrobank timely appealed the decision, arguing that the circuit court erred in determining that abode service was insufficient to obtain a personal deficiency judgment against a defendant under section 5/15-1508(e) of the IMFL.  As no Illinois case had previously addressed whether a personal deficiency judgment may be entered against a defendant who was defaulted in a foreclose action after abode service, this raised a matter of first impression for the Court.  The Court reviewed section 2-203(a)[2] of Article II of the Code of Civil Procedure which provides that service shall be made 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 some person of the family or a person residing there, 13 years or older, and informing that person of the contents of the summons, and mailing a copy to the defendant at his or her usual place of abode. The Court reasoned that because abode service has been found to meet the requirements of due process in a foreclosure action, and can confer personal jurisdiction over a defendant, it is also sufficient for a personal deficiency judgment to be entered against the defendant.  Specifically, the Court found that “personal service” as contained in section 15-1508(e) encompasses both procedures set forth in section 2-203.

This finding is an important clarification for lenders who might otherwise be required to make numerous service attempts to serve a specific named party, and not another household member, in order to preserve their ability to obtain a personal judgment for a deficiency.

[1] See 735 ILCS 5/15-1508(e)
[2] See 735 ILCS 5/2-203(a)