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Illinois App. Court (1st Dist) Holds ‘Substitute Service’ Effective on Adult With Cognitive Impairment

mortgage lawThe Illinois Appellate Court, First District, recently held that substitute service can be effected under the Illinois Code of Civil Procedure when the summons is left with an adult with a cognitive impairment.

A copy of the opinion in U.S. Bank Trust National Ass’n v. Zofkie is available at: Link to Opinion.

The plaintiff mortgagee filed a foreclosure action against the defendants. The plaintiff served the mortgagor defendants by substitute service – a copy of the summons was delivered to the defendants’ home and left with their adult son.

The defendants’ son has diagnosed autism, and the defendants claimed their son never told them about the summons and complaint, and that they had no knowledge of the foreclosure action before a default judgment was entered against them.

After the default was entered, a judicial foreclosure sale was scheduled. The property was sold at auction, and the plaintiff moved for confirmation of the judicial sale. At that time, the defendants moved to quash service. The trial court struck the motion to quash service and confirmed the judicial sale. The defendants filed an amended motion to quash service, which the trial court also denied.  This appeal followed.

On appeal, the defendants argued that service of process was ineffective because it was effectuated by delivering the summons and complaint to an adult with a cognitive impairment, making it insufficient to satisfy due process.

As you may recall, the Illinois Code of Civil Procedure allows substitute service, through which process can be served by leaving a copy of the summons at a defendant’s abode, with some family member or resident over the age of 13. 735 ILCS 5/2-203(a)(2). The process server must inform that person of the contents of the summons and must also mail a copy of the summons to the defendant at his abode. Id.

The Appellate Court examined the language of the statute and found that there was no requirement that the recipient of the substitute service be mentally competent.  The Court held that it lacked authority to add such a requirement.

The defendants argued that, because the statute includes a minimum age requirement, and a requirement that the process server explain the contents of the summons, it contemplates the mental capacity of the person receiving the summons.

The Court examined other jurisdictions and found that some other states explicitly require a level of competency on the part of the recipient of substitute service. See Wis. Stat. Ann. § 801.11(1)(b)(1) (West 2021); Cal. Civ. Proc. Code § 415.20(b)(West 2018), and that the federal rule requires that the recipient be of “suitable age and discretion.” Fed. R. Civ. P. 4(e)(2)(B).

Although the Appellate Court noted that the defendants’ arguments were reasonable, they could not prevail against the clear language of the statute. The Court also noted the plaintiff’s argument that requiring a process server to assess mental capacity would add a new dimension to service beyond verifiable facts.

In Illinois, a process server’s affidavit is prima facie evidence of proper service. Illinois Service Federal Savings & Loan Ass’n of Chicago v. Manley, 2015 IL App (1st) 143089 ¶ 37.

The defendants never contended that the process server failed to follow the statutory requirements. Instead, they argued only that their son could not understand the importance of the summons.

As a result, the Appellate Court held it did not have the authority to impose a requirement not found in the statute and affirmed the trial court’s ruling in favor of the mortgagee.

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