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Illinois: Appellate Court Offers Guidance on the Diligence Requirement for Service by Publication

Posted By USFN, Tuesday, April 17, 2018
Updated: Monday, April 16, 2018

April 17, 2018

by Marcos Posada
McCalla Raymer Leibert Pierce, LLC – USFN Member (Connecticut, Florida, Georgia, Illinois)

An Illinois appellate court recently found that service of process via publication pursuant to 735 ILCS 5/2-206(a) was proper and upheld the trial court’s order denying the defendant’s motion to quash service. [Neighborhood Lending Services v. Griffin, 2018 IL App (1st) 162855 (Mar. 15, 2018)]. In Griffin, the process server made one attempt to serve the defendant — at the only address found for the defendant, where he was told by the defendant’s spouse that the defendant did not live at the property. Thereafter, the plaintiff served the defendant via publication pursuant to Illinois law.

The defendant argued that the plaintiff failed to exercise due inquiry into his whereabouts and, therefore, did not comply with Section 2-206. Contrary to the defendant’s contentions, the plaintiff submitted the requisite affidavits establishing the inquiry into the defendant’s whereabouts. Of note, the appellate court in Griffin cited to precedent regarding statutory prerequisites, specifically quoting Bank of New York v. Unknown Heirs & Legatees, 369 Ill. App. 3d 472, 476 (2006): “Our courts have determined that these statutory prerequisites [of due inquiry and due diligence] are not intended as pro forma or useless phrases requiring mere perfunctory performance but, on the contrary, require an honest and well-directed effort to ascertain the whereabouts of a defendant by inquiry as full as circumstances permit.”

The appellate court then affirmed that because the defendant could not be located at any address other than the property in which service was attempted and the process server was told by the defendant’s spouse that he did not live there and refused to provide additional information, the trial court did not err in permitting service by publication. Moreover, there was no showing as to any requirement for a process server to repeatedly engage in knowingly futile visits before serving via an alternate method of service.

As service via publication is a frequently challenged matter in Illinois with respect to defendants seeking to quash service, Griffin presents additional stability for parties serving via publication, especially when spouses seemingly go out of their way to conceal the whereabouts of the party one is trying to serve. With timelines in Illinois always a challenge, it is imperative to efficiently prosecute cases in compliance with statutory requirements, yet recognize instances (such as in the case described here) to minimize delays.

Editor’s Note: The author’s firm was counsel for the plaintiff at both the trial and appellate levels in the Neighborhood Lending Services v. Griffin case summarized in this article.

© Copyright 2018 USFN and McCalla Raymer Leibert Pierce, LLC. All rights reserved.
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Note for consideration of the USFN Award of Excellence: This article is not a "Feature."


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