ILLINOIS OFFICIAL REPORTS
Appellate Court
MB Financial Bank, N.A. v. Ted & Paul, LLC, 2013 IL App (1st) 122077
Appellate Court MB FINANCIAL BANK, N.A., Plaintiff-Appellee, v. TED & PAUL,
Caption LLC, FLORIN LELA, TUDOR BERCE, UNKNOWN OWNERS AND
NONRECORD CLAIMANTS, Defendants-Appellants.
District & No. First District, Fourth Division
Docket No. 1-12-2077
Filed May 2, 2013
Held The trial court’s denial of defendants’ petition for relief from a default
(Note: This syllabus judgment entered for plaintiff in a mortgage foreclosure action was
constitutes no part of reversed, notwithstanding the fact that plaintiff mortgagee had already
the opinion of the court purchased the property and sold it to a third party and service of process
but has been prepared on two individual defendants appeared to be proper, since the return of
by the Reporter of service showing that the mortgagor, a corporation, was served by service
Decisions for the on the corporation’s agent was challenged by affidavits asserting that the
convenience of the person served was not an agent for receipt of service but the trial court
reader.)
failed to conduct an evidentiary hearing to resolve that factual issue;
therefore, the cause was remanded for such a hearing.
Decision Under Appeal from the Circuit Court of Cook County, No. 09-CH-26861; the
Review Hon. Jean Pendergast Rooney, Judge, presiding.
Judgment Reversed and remanded.
Counsel on Wesley E. Johnson, of Goodman Law Offices, LLC, of Chicago, for
Appeal appellants.
Eric S. Rein and Megan M. Mathias, both of Horwood, Marcus & Berk,
Chtrd., of Chicago, for appellee.
Panel JUSTICE FITZGERALD SMITH delivered the judgment of the court,
with opinion.
Presiding Justice Lavin and Justice Pucinski concurred in the judgment
and opinion.
OPINION
¶1 Following the entry of a default judgment in a mortgage foreclosure action against
defendants-appellants Ted & Paul, LLC, Florin Lela and Tudor Berce (defendants or as
named), as obtained by plaintiff-appellee MB Financial Bank, N.A. (plaintiff), the subject
property was eventually sold to a third party and confirmed by court order. In response,
defendants filed a petition for relief from judgment, which was denied. Defendants appeal,
contending that the trial court erred in denying their petition due to lack of personal
jurisdiction, and ask that we reverse the trial court’s order. For the following reasons, we
reverse and remand.
¶2 BACKGROUND
¶3 On August 4, 2009, plaintiff filed a “Complaint to Foreclose Commercial Mortgage and
For Other Relief” against defendants regarding commercial property located at 5351 North
Damen Avenue in Chicago. This cause, which is the underlying cause in the instant appeal,
was assigned case number 09 CH 26861 (the 61 case). On the same date, plaintiff filed a
second, similar complaint to foreclose against defendants regarding a different property. That
cause, which is not subject to the instant appeal, was assigned case number 09 CH 26866 (the
66 case). Plaintiff then filed a motion to appoint E. L. Johnson Investigations as a special
process server. The trial court granted plaintiff’s motion and appointed E. L. Johnson
Investigations to be the special process server for both cases.
¶4 Regarding the 61 case, which, again, is the underlying cause in the instant appeal, on
March 5, 2010, plaintiff filed a “Motion for Order of Default,” seeking an order of default
against defendants for their failure to appear, answer or respond to the complaint. To this
motion, plaintiff attached three separate documents each entitled “Summons and Complaint
Affidavit.” The first was for defendant Ted & Paul, LLC; it was signed by Vince Soto from
E. L. Johnson Investigations, dated September 11, 2009, and stated that corporate service was
completed upon Mariana Berce, a 56-year-old white female, as that corporation’s agent. The
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second was for defendant Tudor Berce; it was again signed by Soto, dated September 11,
2009, and stated that abode service was completed upon Mariana Berce, with the same
physical description. And, the third summons and complaint affidavit was for defendant
Florin Lela; it, too, was signed by Soto and dated September 11, 2009, and stated that
personal service was completed on defendant Lela, a 40-year-old white female.
¶5 On March 24, 2010, the trial court granted plaintiff’s motion and entered an order for
default against defendants. The court found that defendants “were served with Summons and
Complaint on September 11, 2009; and, therefore, [they] are now in default for failure to
timely appear, answer or otherwise plead to [p]laintiff’s Complaint.” The trial court then
entered a judgment of foreclosure and sale, stating that it “specifically [found] service of
process in each instance was properly made in accordance with the [Illinois] Code of Civil
Procedure,” and that it had “jurisdiction over all the parties hereto and the subject matter
presented herein.” The court noted that the total balance due on the property was
$2,832,708.17, and that defendants could be personally liable for any deficiency, which
plaintiff had the right to seek. The court gave defendants until June 22, 2010 to redeem the
property.
¶6 Defendants did not redeem the property. Accordingly, a judicial sale was held and
plaintiff purchased the property for $700,000, leaving a deficiency of $2,196,969.57. The
trial court entered an order approving the report of sale and distribution and, per plaintiff’s
decision not to pursue collection, no deficiency judgment was entered. Then, on October 19,
2010, plaintiff sold the property to Ballina Development, Inc.1
¶7 On April 2, 2012, defendants filed a petition for relief from judgment pursuant to section
2-1401 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2010)),
seeking relief from the trial court’s March 24, 2010 order of default and judgment of
foreclosure and sale. To their petition, defendants attached copies of the three “Summons and
Complaint Affidavits” from the underlying 61 case, as well as copies of three “Summons and
Complaint Affidavits” from the 66 case. Among the summonses from the 66 case, the first
was for defendant Ted & Paul, LLC; it was signed by Vince Soto from E. L. Johnson
Investigations, dated August 29, 2009, and stated that corporate service was completed upon
defendant Berce, a 50-year-old white male, as that corporation’s agent. The second was for
defendant Berce, personally; it was signed by Soto, dated August 31, 2009, and stated that
personal service was completed upon him, with the same physical description. And, the third
summons and complaint affidavit in the 66 case was for defendant Lela; it, too, was signed
by Soto and dated August 31, 2009, and stated that personal service was completed on
defendant Lela, this time described as a 38-year-old Hispanic female.
¶8 In addition to the six summons and complaint affidavits, defendants also attached three
affidavits to their section 2-1401 petition. Defendant Berce provided an affidavit stating that
he was not served with a summons or complaint in the 66 case, and that he did “not believe”
he was ever served in the 61 case. He also attested that Mariana Berce, his wife, has never
1
Ballina Development, Inc., which bought the property for $700,000, is not a party to this
appeal.
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been an agent of defendant Ted & Paul, LLC. Mariana Berce provided an affidavit stating
that she was not served with a summons or complaint in the 61 case, that she has never been
an agent of defendant Ted & Paul, LLC, and that she was 44 years old in September 2009.
And, defendant Lela provided an affidavit stating that he is male and that he was not served
with a summons or complaint in either the 61 or the 66 case.
¶9 Based on all this, defendants asserted that, as evidenced by “significant inconsistencies
and errors in the affidavits” of service, they “were not actually served” and, thus, the trial
court’s order of default and judgment of foreclosure and sale were void ab initio since the
court lacked personal jurisdiction over them due to improper service. In its response to
defendants’ petition, plaintiff attached a copy of the real estate sale and purchase agreement
for the sale of the property (in the underlying 61 case) by plaintiff2 to Ballina Development,
Inc., dated October 19, 2010 for the amount of $700,000, as well as a copy of the special
warranty deed for the property identifying it as the grantor and Ballina Development, Inc.,
as the grantee, with a stamp showing this deed had been recorded with the Cook County
recorder of deeds. Via these documents, plaintiff argued that, because the property had been
sold to a bona fide purchaser, defendants’ petition was barred by section 2-1401(e) and,
because defendants filed their petition more than two years after the court’s March 24, 2010
orders from which they now sought relief, the petition was also barred by section 2-1401(c).
¶ 10 Upon consideration of defendants’ petition for relief from judgment and plaintiff’s
response, the trial court denied defendants’ petition, stating that it based its decision “on the
briefs and § 401(e).”
¶ 11 ANALYSIS
¶ 12 As a threshold matter, the parties agree that the appropriate standard of review here is de
novo. They are correct. When a trial court enters either a judgment on the pleadings or a
dismissal in a section 2-1401 proceeding, that order is reviewed on appeal de novo. See
People v. Vincent, 226 Ill. 2d 1, 18 (2007). In the instant case, as the parties note, the trial
court denied defendants’ section 2-1401 petition based on the briefs before it; the court did
not hold any sort of evidentiary hearing but, rather, ruled based on the pleadings alone.
Accordingly, de novo review should be applied. See Vincent, 226 Ill. 2d at 17-18 (explaining
the shift from abuse of discretion standard to de novo standard in such circumstances); see
also OneWest Bank, FSB v. Hawthorne, 2013 IL App (5th) 110475, ¶ 19 (where party
appealed denial of petition for relief from judgment of foreclosure and sale and order
approving sale pursuant to section 2-1401, de novo standard of review applied).
¶ 13 On appeal, defendants contend that their petition for relief from judgment should not
have been denied. The main crux of their argument focuses on the trial court’s reliance on
section 2-1401(e). They assert that plaintiff has no basis to raise a bona fide purchaser
defense since this is a right belonging to Ballina Development, Inc., and not plaintiff; that
no bona fide purchaser has been identified; and that, even if there was a bona fide purchaser
2
Plaintiff is identified in this document, as well as in the special warranty deed, as MB841,
LLC.
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of the property in question, this does not preclude their right to relief from judgment against
plaintiff because the trial court did not have personal jurisdiction over them. In addition,
defendants argue that, since there was no dispute that service was improper, their petition
was further not barred by the two-year statute of limitations as set forth in section 2-1401(c).
For its part, plaintiff asserts that the trial court’s decision here was proper because the relief
defendants request is not available since the property has been sold to a bona fide purchaser
without any evidence on the face of the record as to improper service and, thus, as to any lack
of jurisdiction over them. Moreover, plaintiff claims that, regardless, because defendants
waited more than two years to file their petition for relief from judgment, it would have been
properly denied pursuant to section 2-1401(c), as well.
¶ 14 The existence of a bona fide purchase here and the impact of the two-year statute of
limitations of section 2-1401(c) are really only secondary matters. Instead, the primary issue
is that raised by defendants at the trial level in their section 2-1401 petition, namely, whether
they were properly served by plaintiff, thereby permitting the trial court to have the necessary
jurisdiction over them to effectuate the orders it issued herein. Again, the trial court found
as much, but based solely on the pleadings before it. Because, upon review of the
circumstances of the instant appeal as well as the facts in the record before us, we feel that
this was questionable, at least with respect to one of the defendants, we must conclude that
reversal of the trial court’s denial of defendants’ section 2-1401 petition and remand for an
evidentiary hearing are required.
¶ 15 Section 2-1401 of the Code provides a mechanism for a party to belatedly challenge and
avoid a trial court’s final judgment. That is, it creates an exception to the general rule that
a court cannot review its own judgment after the expiration of 30 days from the date of entry.
See Malkin v. Malkin, 301 Ill. App. 3d 303, 310 (1998). Generally, the party filing a section
2-1401 petition must prove up three elements in order to succeed: the existence of a
meritorious defense or claim, due diligence in pursuing that claim before judgment, and due
diligence in pursuing the claim or defense after judgment. See Malkin, 301 Ill. App. 3d at
310. Even so, section 2-1401(c) warns that an action under this portion of the Code must be
filed not later than two years after the entry of the original order or judgment. See 735 ILCS
5/2-1401(c) (West 2010).
¶ 16 In the instant cause, defendants’ section 2-1401 petition sought relief from the trial
court’s order of default and judgment of foreclosure and sale more than 30 days from the date
of their entry. The basis of their petition was their claim that they were never served by
plaintiff with the required summonses and thus, the court lacked personal jurisdiction over
them and its orders were void. Essentially, then, defendants’ petition comprises a motion to
quash service. A motion to quash for lack of jurisdiction that is made more than 30 days after
final judgment seeks relief similar to that of a regular section 2-1401 petition–to belatedly
undo, or avoid, the final judgment. See OneWest Bank, FSB v. Topor, 2013 IL App (1st)
120010, ¶¶ 12-15 (discussing the relationship between a motion to quash service and a
section 2-1401 petition).
¶ 17 In Sarkissian v. Chicago Board of Education, 201 Ill. 2d 95, 104-05 (2002), our state
supreme court held that a pleading to challenge a void judgment based on invalid service
must be brought under section 2-1401. See also Topor, 2013 IL App (1st) 120010, ¶ 14. And,
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recognizing that a void judgment may be attacked at any time, even far more than two years
after its entry, the supreme court held that some of the general requirements for a valid
section 2-1401 petition cannot, and do not, apply to a petition to invalidate service of
process. See Sarkissian, 201 Ill. 2d at 104; see also Topor, 2013 IL App (1st) 120010, ¶ 14.
In particular, it found that a party who files a section 2-1401 petition challenging a void
judgment in the nature of a motion to quash (i.e., attacking the validity of service) does not
need to allege the general elements of either a meritorious defense or due diligence, and may
bring the petition at any time, not just within the two-year limitations period set forth in
section 2-1401(c). See Sarkissian, 201 Ill. 2d at 104; see also Topor, 2013 IL App (1st)
120010, ¶ 14 (citing Protein Partners, LLP v. Lincoln Provision, Inc., 407 Ill. App. 3d 709,
715 (2010), which notes that an untimely postjudgment motion must be viewed as a section
2-1401 motion on appeal because this is the only means a party may use once the 30 days has
expired). Applying Sarkissian here, not only do we not need to discuss whether defendants
satisfied the general elements in order to prove up their section 2-1401 petition since they are
irrelevant (and which, in fact, neither party addressed on appeal), but we also do not need to
discuss the parties’ arguments regarding the two-year bar of section 2-1401(c), since it, too,
does not apply.3
¶ 18 With that said, we turn now to our recent decision of Deutsche Bank National Trust Co.
v. Brewer, 2012 IL App (1st) 111213, which is very similar to the instant cause and provides
much guidance here. In Brewer, the plaintiff bank filed a complaint against the defendant
property holder seeking to foreclose her mortgage. The plaintiff served the defendant via
publication. When she did not respond, the trial court entered a default judgment and ordered
a judicial sale of the property, which was sold to the plaintiff. Thereafter, the defendant
moved to quash the service of process by publication, arguing that the plaintiff did not meet
the requirements for this type of service and, thus, that the trial court never acquired personal
jurisdiction over her and its orders were void. The trial court denied the motion to quash. See
Brewer, 2012 IL App (1st) 111213, ¶¶ 5-10.
¶ 19 On appeal, while the defendant argued that the trial court did not have jurisdiction over
her when it entered its final judgment, the plaintiff argued that the reviewing court did not
need to address this because section 15-1509 of the Illinois Mortgage Foreclosure Law barred
any challenge to the foreclosure and sale. See Brewer, 2012 IL App (1st) 111213, ¶ 13. After
reviewing section 15-1509, which states that any vesting of title by deed shall bar all claims
of parties to the foreclosure, we nonetheless directly disagreed with the plaintiff’s claims that
the statute barred the defendant from contesting the sale of the property even if the trial court
3
We recognize that the recent case of U.S. Bank National Ass’n v. Prabhakaran, 2013 IL
App (1st) 111224, held that section 2-1401 petitions are generally barred by section 15-1509 of the
Illinois Mortgage Foreclosure Law (735 ILCS 5/15-1509 (West 2008)) after judicial confirmation
of the sale of the property. However, Prabhakaran did not involve a section 2-1401 petition based
solely on a lack of jurisdiction concerning service of process, as did defendants’ section 2-1401
petition did herein. This critical contrast makes Prabhakaran distinguishable and inapplicable to the
instant cause. See Topor, 2013 IL App (1st) 120010, ¶ 12 n.1 (distinguishing Prabhakaran in the
same manner).
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lacked personal jurisdiction over her when it entered the judgment approving the sale. See
Brewer, 2012 IL App (1st) 111213, ¶ 15. This is because we found the basic legal principle
that a judgment entered without jurisdiction over the parties is void ab initio is one that
cannot be overcome. See Brewer, 2012 IL App (1st) 111213, ¶ 15. Thus, not even section
15-1509 could protect a bona fide purchaser when the underlying foreclosure and sale orders
were void because the mortgagor was never properly served. See Brewer, 2012 IL App (1st)
111213, ¶ 15 (therefore, section 15-1509’s protection applies only to valid judgments entered
with jurisdiction over the parties). Accordingly, we concluded that the defendant’s
jurisdictional challenge to the trial court’s judgment–even though the property had been
sold–was not barred. See Brewer, 2012 IL App (1st) 111213, ¶ 15 (holding that foreclosure
judgments are not meant to be effective and deprive owners of their properties when the trial
court lacks personal jurisdiction over the owners).
¶ 20 Having so held, we were then left with the question of the propriety of service, i.e., had
the plaintiff bank adequately served the defendant mortgagor in order to effectuate personal
jurisdiction over her? The trial court had found that the plaintiff met the requirements for
service by publication (the chosen method of service in that cause); this is why it had denied
the defendant’s motion to quash. See Brewer, 2012 IL App (1st) 111213, ¶ 17. However,
after reviewing the strict requirements of service by publication, as well as the facts in the
record regarding the plaintiff’s actions in this regard, we disagreed with the trial court’s
finding. Instead, we reviewed the affidavits filed by the plaintiff in support of its motion for
service by publication, as contained in the record, and noted that they failed to identify who
attempted to serve the defendant, which is a requirement for this type of service. See Brewer,
2012 IL App (1st) 111213, ¶¶ 20-21 (when service is by publication, an affidavit from the
person making service must be provided and must specify the steps taken to effect service).
Thus, the plaintiff bank had not complied with the requirements for service of process by
publication. Accordingly, we concluded that, because this lack of proper service of the
defendant translated into a lack of personal jurisdiction over her, the trial court erred when
it denied her motion to quash. See Brewer, 2012 IL App (1st) 111213, ¶ 31 (holding that,
without jurisdiction over the mortgagor, the entry of default and the judgment approving the
sale of the mortgagor’s property were void and remand was required).
¶ 21 The instant cause places us in the same predicament in which we found ourselves in
Brewer. Having already discussed that we are to treat defendants’ section 2-1401 petition for
relief from judgment due to lack of personal jurisdiction as a motion to quash, the fact
pattern and legal argument are virtually identical: plaintiff bank sought to foreclose on
defendants’ mortgage; it claimed it properly served the defendants; and, when they did not
respond, the trial court entered a default judgment and ordered a judicial sale of the property,
which was sold to plaintiff. Thereafter, just as the defendant in Brewer, defendants here
sought relief from these orders, arguing that they were not properly served and, thus, the
court never acquired personal jurisdiction over them and its orders were void, while plaintiff
argued that defendants’ claims were barred since the property had been sold. And, just as the
trial court in Brewer, the trial court in the instant cause, without more, denied relief.
¶ 22 In light of the strikingly similar factual circumstances and legal arguments, we find no
reason to depart from the judicial reasoning and framework we developed in Brewer.
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Applying the principles we established in that cause, we note that, because a judgment
entered without jurisdiction over the parties is void ab initio, plaintiff’s argument here does
not hold water; not even the fact that the property in question has been sold–first, to plaintiff
and later, to Ballina Development, Inc.–protects plaintiff if the underlying default judgment
and foreclosure and sale order were void because defendants were never properly served.
Accordingly, just as in Brewer, we are left with the question of propriety of service. As we
noted at the outset of our discussion, it all comes down to this: did plaintiff adequately serve
defendants in order to effectuate personal jurisdiction over them?
¶ 23 In the instant cause, the record reflects that plaintiff allegedly served each of the three
defendants here differently: defendant Ted & Paul, LLC, the listed mortgagor, through
corporate service via Mariana Berce, whom plaintiff insists was its agent; defendant Berce
through abode service via Mariana Berce as his wife; and defendant Lela through personal
service. As such, each situation involves its own different, and critical, implications.
¶ 24 For example, beginning with defendant Lela, we note that, in the context of personal
service, return of summons is prima facie proof of proper service. See Winning Moves, Inc.
v. Hi! Baby, Inc., 238 Ill. App. 3d 834, 838 (1992); accord Freund Equipment, Inc. v. Fox,
301 Ill. App. 3d 163, 166 (1998). Courts are required to indulge in every reasonable
presumption in favor of the return, and the uncorroborated testimony of the party upon whom
service is made is not enough to set aside this evidence. See Winning Moves, 238 Ill. App.
3d at 838; accord Freund, 301 Ill. App. 3d at 166 (party’s uncorroborated testimony that he
was never served “is insufficient to overcome the presumption of service”); see also Paul v.
Ware, 258 Ill. App. 3d 614, 617-18 (1994) (to attack underlying default judgment on ground
that court never obtained personal jurisdiction over the defendant, evidence must be
presented to impeach the affidavit of service; an uncorroborated defendant’s affidavit simply
stating that he was not personally served is insufficient to overcome presumption of valid
service and default judgment will not be set aside on only this evidence).
¶ 25 Here, the record contains a copy of the return of summons plaintiff, via investigator Soto,
personally served on Lela. In opposition, defendants assert that this is clearly incorrect and,
essentially, fraudulent because the summons in the 61 case differs from that in the 66 case
since the former lists Lela as a white female and the latter lists Lela as an Hispanic female,
and because Lela is not a female at all; he is a male. However, the only evidence of this
presented by defendants is Lela’s affidavit–his uncorroborated, incredibly brief affidavit
stating, conclusorily, that he was not served in the 61 case and he is male. His evidence
consisted of nothing else but his flat denial that plaintiff, via Soto, served him. Again, in the
context of personal service, without more, Lela’s bare affidavit is simply insufficient to set
aside the trial court’s determination that plaintiff properly served him. Therefore, we find that
the trial court had personal jurisdiction over defendant Lela and, thus, its default judgment
and order of foreclosure and sale regarding the property, as to him, was properly entered.
¶ 26 Next, we examine plaintiff’s alleged service of defendant Berce via abode service on
Mariana Berce (as his wife). Unlike with personal service, abode service, also referred to as
substitute service, does not carry the same presumption of validity since it is not the
defendant himself being served, but someone in his stead living at his abode. See State Bank
of Lake Zurich v. Thill, 113 Ill. 2d 294, 309 (1986). Thus, the return or affidavit of service
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must affirmatively state that a copy of the summons was left at the usual abode with a family
member over the age of 13, that this family member was informed of the content of the
summons, and that the process server sent a copy of the summons in a sealed envelope with
postage fully paid and addressed to the defendant at his usual place of abode. See Thill, 113
Ill. 2d at 310. The failure to recite any of these renders the abode service defective. See Thill,
113 Ill. 2d at 310 (because the in-person service of a party is, essentially, being substituted
by service to another on the party’s behalf, strict compliance with each of these requirements
is mandatory). While the certificate of the process server that he sent the copy of summons
is evidence that he did so, this may be overcome by contradictory affidavit. See Thill, 113
Ill. 2d at 312. Therefore, where the return of abode service is challenged by affidavit, and
there is no counteraffidavit to address this challenge, the return of service itself is not enough
evidence; instead, the affidavit must be taken as true and the service of summons must be
quashed. See Thill, 113 Ill. 2d at 310; see also Clinton Co. v. Eggleston, 78 Ill. App. 3d 552,
555-57 (1979) (quashing substituted service where the defendant’s affidavit attacked this
service as improper for various reasons and no counteraffidavit was presented to dispute the
defendant’s challenge); accord Harris v. American Legion John T. Shelton Post No. 838, 12
Ill App. 3d 235, 237 (1973).
¶ 27 In the instant cause, the return of service as contained in the record demonstrates that,
when serving defendant Berce with abode service via Mariana Berce, investigator Soto
recited the three mandatory requirements of abode service. Under this type of service, then,
defendants had an opportunity to attack Soto’s service as improper with an affidavit. In this
way, Soto’s return of service alone, without a counteraffidavit from plaintiff to address
defendants’ challenge in this regard, would not have been enough for plaintiff to prevail on
the service issue, since the affidavit would have been taken as true and service quashed.
¶ 28 Defendants did attach affidavits to their section 2-1401 petition regarding Soto’s abode
service on defendant Berce: one from Berce himself and one from Mariana. And, there was
no counteraffidavit provided from Soto or plaintiff to address defendants’ challenge.
However, upon examination of the affidavits defendants provided, any court would be hard-
pressed to say that they sufficiently attacked the propriety of the abode service that occurred
here with any credible merit. Instead, in another unbelievably short affidavit submitted by
defendants, while Berce unequivocally states that he was not served with a summons or
complaint in the 66 case, he does not say the same regarding service in the case at issue.
Rather, he states only that he does “not believe” he ever received a summons in the mail for
the 61 case. In addition to this less-than-compelling statement, he never affirmatively rebuts
any of the three elements of abode service that the return verified. For example, Berce does
not rebut that Soto properly left a copy of the summons or complaint at Berce’s usual abode
with Mariana, a family member over the age of 13; he does not challenge that Soto properly
informed Mariana of the content of the summons; and he never denies that Soto sent a copy
of the summons in a sealed envelope with postage fully paid and addressed to him at his
home. Moreover, even considering Mariana’s affidavit, this, too, does little to attack
plaintiff’s abode service as improper. While Mariana does state that she was not served with
a summons or complaint in the instant case, this is all she asserts. Just like Berce’s,
Mariana’s extremely limited affidavit does not address, let alone attack, any of the
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requirements of abode service. For example, she does not claim that Soto did not properly
serve Berce pursuant to abode service via her. Nor does she aver that Soto did not leave a
copy of the summons in the instant case at their home, that this was not Berce’s usual abode,
that she was not his family member, that Soto did not inform her of the content of the
summons, or that Soto did not send a copy of the summons in a sealed envelope with postage
fully paid and addressed to the defendant at his home. Clearly, both Berce’s and Mariana’s
affidavits are simply insufficient to effect any real challenge to Soto’s return of abode
service. Based on our review of this return, which is contained in the record, and in light of
defendants’ failure to provide any challenge to it via at least one substantive and challenging
affidavit from the person or persons served, we must hold that plaintiff properly served
defendant Berce via abode service. See Thill, 113 Ill. 2d at 310, 312 (where return or
affidavit of service affirmatively states the three abode service requirements, and since
certificate of process server that he sent copy of summons is evidence that he did so, it is
assumed, without contradiction, that abode service was proper). Accordingly, then, the trial
court here had personal jurisdiction over defendant Berce and, thus, its default judgment and
order of foreclosure and sale regarding the property, as to him, was also properly entered.
¶ 29 Although we have just concluded that plaintiff properly served defendant Lela via
personal service and defendant Berce via abode service and, thus, that the trial court properly
had personal jurisdiction over them, there is one last defendant in this cause: Ted & Paul,
LLC. Just as plaintiff chose to serve defendant Lela differently than it served defendant
Berce, plaintiff served defendant Ted & Paul, LLC, in yet another manner: via corporate
service. A private corporation may be served by leaving a copy of the process (i.e., the
summons or complaint) with its registered agent or any officer or agent of the corporation
found anywhere in the state. See Dei v. Tumara Food Mart, Inc., 406 Ill. App. 3d 856, 862
(2010); see also Island Terrace Apartments v. Keystone Service Co., 35 Ill. App. 3d 95, 98
(1975). Generally, a return of service is prima facie evidence that proper service was
effected. See Dei, 406 Ill. App. 3d at 862; Island Terrace, 35 Ill. App. 3d at 98. However,
when a corporation is sued, a return is not conclusive as to the fact of agency. See Dei, 406
Ill. App. 3d at 862; Island Terrace, 35 Ill. App. 3d at 98. Instead, for service of process on
a corporation to have been properly made upon an agent of the defendant, the agent must
have had actual authority to accept service on behalf of the corporation. See Dei, 406 Ill.
App. 3d at 862; Island Terrace, 35 Ill. App. 3d at 98. Accordingly, even in the face of a
return, a challenge to or denial of agency within the corporate service context can call the
ultimate issue of the propriety of this service and, consequently, whether the trial court had
personal jurisdiction over the corporation, into question. See Island Terrace, 35 Ill. App. 3d
at 98.
¶ 30 In the instant cause, the record contains investigator Soto’s return of service on defendant
Ted & Paul, LLC. It names defendant Berce as the corporation’s registered agent, but states
that service was upon Mariana, whom Soto lists as “agent.” While this return would
generally be enough proof that service was properly completed on defendant Ted & Paul,
LLC, defendants clearly challenged the question of Mariana’s agency in their section 2-1401
petition, specifically denying that she had the necessary actual authority to accept service on
behalf of the corporation. In her affidavit, Mariana states not only that she was never served
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with a summons or complaint in this cause (in any capacity), but also that she has never been
a director, officer, agent or registered agent of defendant Ted & Paul, LLC. In addition,
defendant Berce states in his affidavit that he is the president of that corporation and
confirms that Mariana has never been a director, officer, agent or registered agent of it.
¶ 31 We find ourselves in a precarious position here. While there is a return of service
showing that defendant Ted & Paul, LLC, was served via corporate service upon Mariana
as its agent, we have two affidavits challenging Mariana’s capacity as that corporation’s
agent. Under these circumstances, the return is not conclusive and, thus, plaintiff’s service
of defendant Ted & Paul, LLC, has now been placed into question. Moreover, whether
someone is a corporate agent is a factual question. See Island Terrace, 35 Ill. App. 3d at 99.
Here, whether Mariana was an agent of defendant Ted & Paul, LLC, for the purpose of
receiving service of process on behalf of that corporation is a question of fact–one best left
for a trial court to determine. See Island Terrace, 35 Ill. App. 3d at 99. In turn, then, since
an issue has been raised as to the propriety of plaintiff’s service of one of the defendants, an
issue, too, has been raised as to the ultimate question of whether the trial court had personal
jurisdiction to effectuate its judgment of default and order of foreclosure and sale in this
cause.
¶ 32 Accordingly, whereas we found that plaintiff properly served defendants Lela and Berce,
we find that a question of fact remains with respect to the propriety of plaintiff’s service of
defendant Ted & Paul, LLC. Thus, while the trial court properly had personal jurisdiction
over the former two defendants upon which to enter its judgment of default and order of
foreclosure and sale, it is unclear whether it did so regarding this last defendant. The trial
court never addressed the matter of the propriety of corporate service on defendant Ted &
Paul, LLC, with respect to the question of Mariana’s agency. Because, in light of the
circumstances, this is a question of fact, we find that the trial court must do so via an
evidentiary hearing discussing all the pertinent matters regarding the question of agency. This
is particularly critical due to the fact that, of all the defendants in this matter, it is defendant
Ted & Paul, LLC, that is listed as the mortgagor of the property at the center of this appeal.
¶ 33 CONCLUSION
¶ 34 In conclusion, then, we find that the trial court’s denial of defendants’ section 2-1401
petition was in error as a question of fact remains and, thus, that a further hearing is required
as described herein.
¶ 35 Reversed and remanded.
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