In Equity Residential v. Nasolo, 364 Ill.App.3d 26 (1st Dist. 2006), the Court held that four unsuccessful Sheriff service attempts over a six-day period didn’t qualify as “due and diligent inquiry” under the service by posting section of the Illinois forcible statute.
Vacating the possession order, the Court stated the key service of process rules:
– service of process has two purposes: (1) to give a defendant notice that his rights are about to be affected by the plaintiff’s action; and (2) to allow a court to exercise jurisdiction over the person whose rights are to be affected by the litigation;
– constructive notice (like posting or publication) is only allowed where personal service of summons can’t be had and there are no other options”;
– the posting notice statute’s due and diligent inquiry standards require more than superficial efforts at locating a defendant;
– a plaintiff must make as comprehensive an effort as possible to locate a defendant including checking with neighbors, making inquiry into court records and investigating employment information before claiming that he can’t locate a defendant after due or diligent inquiry;
– where a defendant hasn’t been served with process, the court has no jurisdiction over him and any judgment entered is void and can be attacked at any time;
– a defendant’s actual knowledge that a suit is pending is not equivalent to service of summons and doesn’t relieve a plaintiff of his burden of vesting a court with jurisdiction over a defendant;
– where a defendant files a sworn affidavit that challenges plaintiff’s location and service efforts, the court should hold an evidentiary hearing on whether plaintiff has met its burden for establishing grounds for constructive service;
Nasolo, 364 Ill.App. 3d at 33-35
Applying these rules, the Court doubted whether four service attempts was enough to show the landlord made a due or diligent inquiry into the tenant’s location or current residence address. 735 ILCS 5/9-107.
The Court held that the tenant was entitled to an evidentiary hearing since she filed an affidavit that challenged the landlord’s diligence in trying to locate the tenant. This affidavit led the Court to vacate the possession order and remanded the case for an evidentiary hearing on the thoroughness of the plaintiff’s service attempts.
Bank of New York v. Smith (2013 IL App (1st) 120398-U) is a more recent case on the constructive service issue. There, the First District held that the tenant was entitled to an evidentiary hearing on whether she could have been located by the landlord.
The tenant filed an affidavit that contained her sworn testimony that she wasn’t dodging service, that she always answered the door when someone knocked and that she was regularly on the premises.
This was enough to get the tenant an evidentiary hearing on whether the landlord exhausted all normal service channels before it posted.
Synthesizing Nasolo and Bank of New York, four unsuccessful attempts are not enough to justify posting while six tries are borderline.
These cases also show that if a tenant files an affidavit, the Court must hold an evidentiary hearing on whether the landlord met the statutory diligence standards.
To avoid a possible motion to quash or vacate a possession order, I at a minimum try to personally serve the tenant through both the Sheriff and a process server before filing my posting affidavit.
In difficult cases (where a tenant is blatantly dodging service), I have my process server available to give testimony and let the judge decide whether we carried our burden of establishing proof of service on the tenant.