MOUNT VERNON – St. Clair County Associate Judge Julie Katz ordered foreclosure and sale of an East St. Louis home for a lender that didn’t serve notice on the owner, Fifth District appellate judges ruled on Nov. 23.
They vacated Katz’s judgment against Lashawndra Harris and husband Willie Tidwell, owners of property at 619 N. 7th St.
They found Federal Home Loan Mortgage Corporation resorted to notice by publication without making a diligent effort to serve notice in person.
Justice Thomas Welch wrote, “When a defendant has not been served with process as required by law, the court has no jurisdiction over that defendant and a default judgment against her is void.”
Harris appealed and prevailed without assistance of counsel.
Federal Home Loan filed the action on June 5, 2017.
An investigator with Pro Vest Services, a Florida detective agency, filed affidavits to allow service by publication on June 26.
One affidavit listed 3599 as the last four Social Security numbers of both owners.
Another stated that a process server tried to serve Harris and Tidwell at the home on June 9, and at another location on June 14.
It stated that utilities were off and the yard was overgrown.
A Pro Vest employee filed an affidavit of abandonment on July 28, with a certificate stating the Legal Reporter published notice of the action three times.
Federal Home Loan moved for default judgment on Oct. 16, 2018, and mailed notice to 619 N. 7th St.
An affidavit showed different Social Security numbers for the owners.
Katz granted the motion on Nov. 5, and set a foreclosure sale on Dec. 27.
Scott Air Force Base Flier published notice of the sale three times.
On Dec. 28, Harris entered an appearance and moved to vacate the judgment.
She stated that she wasn’t aware of the proceedings, that she wasn’t notified of a court date, and that the property wasn’t abandoned.
Katz denied the motion on Jan. 24, 2019, but didn’t award immediate possession to Federal Home Loan.
On appeal, Fifth District judges found Federal Home Loan didn’t conduct a diligent inquiry as the law required.
Welch wrote that it merely made two attempts at service, one at each address, and both on weekdays during normal work hours.
He called its efforts casual, routine, and spiritless.
He found the investigator alleged that she searched public records but used a wrong Social Security number.
He wrote that service by publication is the least desirable method and often is no notice at all.
“A party defending notice by publication must show a strict compliance with every requirement of the statute,” Welch wrote.
Justice John Barberis concurred and Justice Judy Cates specially concurred.
Cates wrote that if Harris hadn’t appealed, she would have lost her home without any semblance of due process.
She wrote that Federal Home Loan would have discovered Pro Vest’s errors if it had compared the affidavits with its own records.
She wrote that Pro Vest’s photographs were too dark and shadowed to offer any evidence regarding the condition of the property.
“Unfortunately, service by publication seems to have become more commonplace in mortgage foreclosure cases,” Cates wrote.
“As such, already overburdened trial courts must scrutinize and question the proferred affidavits and other documents underlying the request for service by publication.”
Lisa Bradley of Codilis and Associates in Burr Ridge represented Federal Home Loan.