Attorney Adam Ansari Wins Illinois Appellate Decision Helping Reiterate the Importance of Procedural Due Process
In a case that will help benefit real estate related litigation defendants, Ansari & Shapiro is pleased to announce that Attorney Adam Ansari successfully argued a case in the Illinois Appellate Court that further solidified the importance of proper service of process on a party defendant to a lawsuit.
Service of process is a fundamental right afforded to both individuals and companies, and necessitates that all defendants be provided proper notice of a suit in order for a court to properly have jurisdiction over the parties. Under certain circumstances, however, Section 2-206 of the Illinois Code of Civil Procedure allows for notice to be effectuated through a newspaper publication where the action is pending. In order for a court to allow service to be performed by publication, a plaintiff, or his or her attorney, must file an affidavit with the court showing that on due inquiry the defendant cannot be found. Publication service is the least suggested method for effectuating service of process in Illinois and is reviewed under a standard of strict scrutiny.
In the case, Mr. Ansari’s Client was a junior mortgage lender and had a nearly $1 million second mortgage on a piece of property. The borrower defaulted on his obligations, and the primary mortgage lender filed foreclosure proceedings against the property and named Mr. Ansari’s Client in order to wipe out its substantial interest on the property. In order to effectuate service upon Mr. Ansari’s Client, the primary mortgage lender utilized publication service and the property was eventually sold to a subsequent Purchaser after a foreclosure auction. Thereafter, Mr. Ansari’s Client learned of the proceeding and immediately moved to vacate the judgment and vacate the sale of the property in order to assert its nearly $1 million interest. Remarkably, the trial court judge vacated the judgment, but refused to vacate the sale. This decision resulted in the peculiar circumstance where the Purchaser remained the owner of the property and Mr. Ansari’s Client had its nearly $1 million mortgage revested.
At that time, Mr. Ansari’s Client filed its own foreclosure action against the property and the Purchaser asserted the defense of Bona Fide Purchaser (“BFP”) status. Under Illinois Law, a subsequent purchaser can assert a BFP argument if it took a piece of property: (1) for value, and (2) without notice of the outstanding interest of the asserting party. The trial court agreed with the Purchaser’s BFP argument and Mr. Ansari appealed the trial court’s decision.
On Appeal, Mr. Ansari argued that the Purchaser could not have successfully asserted a BFP argument, because the Purchaser had inquiry notice that service of process on his Client may have been improper. Generally, in order for a Purchaser to have inquiry notice, there must have been something in the original foreclosure record that would have pointed the Purchaser to the fact that service on a defendant was improper. To support his argument, Mr. Ansari pointed to two documents in the original foreclosure record: (1) a corporation file detail report that indicated the Client could have be served at the registered agent’s address; and (2) the affidavit of the special process server, which indicated that the process server only attempted service at one address prior to publication service and this address was not the registered agent’s address.
After looking at the two referenced documents, the Appellate Court agreed with Mr. Ansari and determined that the Purchaser did have inquiry notice that service may have been improper and reversed the trial court’s decision and remanded the matter for further proceedings.
The case makes clear that procedural due process is a fundamental right that must be afforded to all defendants in a lawsuit, and the failure of which can have drastic consequences for both the original litigating parties and a subsequent purchaser who fails to conduct adequate due diligence.