Page 20 - John Hundley 2013

► If the agent received the documents but did not send them on, whether the neglect was excusable
would depend in part on whether the transferee contracted and paid for a competent service. “If it was
trying to get by on the cheap, it must bear the consequences.”

► If documents were misaddressed by the agent, or properly addressed but lost in transit between the
agent and the transferee, whether the neglect was excusable could depend on what kind of service
the agent promised to provide. “Did [transferee] require the agent to use a service with a tracking
number . . . ? If [transferee] paid the agent only to send documents by ordinary mail, and not to use a
trackable shipment (or electronic delivery . . .), it must accept responsibility.”

► If the documents reached the transferee’s mailroom and were misrouted, despite its use of ordinary
care, that might establish excusable neglect, the court said. However, if transferee failed to tell the
agent who within its administrative office should receive the papers, or supplied the agent with an
incorrect name, it was responsible and “could not use Rule 60(b)(1) to get another chance.”

► If the documents came to the designated recipients, who filed them away without action, the transferee
“must accept the consequences,” the court said.

Family Member Need Not Live At Abode To Accept Service There

A defendant’s family member is not required to reside in the defendant’s household in order to accept
service of process under the “abode” service statute (735 ILCS 5/2-203(a)(2)), a panel in the Appellate
Court’s First District has ruled.

In Central Mort. Co. v. Kamarauli, 2012 IL App (1st) 112353, service was made on defendant’s
mother, who was at defendant’s abode but lived elsewhere. Relying on a 1994 statutory amendment, the
panel said that was good enough. Under the amended statute, it said, “the process server can leave the
summons with either a family member or a person who lives in the household. There is no requirement
that the family member reside in the defendant’s household to accept the summons” (court’s emphasis).

Failure to Reference Employee Status Doesn’t Void Service

Failure of an original process return to recite that the individual process server was an employee of an
approved detective firm does not void the service or resultant judgment where a supplemental affidavit
shows that the process server in fact was so employed, another panel of the Appellate Court has ruled.

In Deutsche Bank Nat’l T. Co. v. Akbulut, 2012 IL App (1st) 112978, the court distinguished cases
where the server was not so employed and said the trial court was entitled to rely upon the supplemental
affidavit in refusing to quash the service.

Deputy May Sign Clerk’s Name to Summons

A summons is not invalid because the name of the Circuit Clerk is signed by a deputy, a panel in the
Appellate Court’s Second District has ruled.

In Deutsche Bank Nat’l T. Co. v. Gryc, 2012 IL App (2d) 111015, defendant attempted to seize upon a
deputy’s signing of the clerk’s name to invalidate the summons, judgment and foreclosure sale, but the
panel extended Nat’l City Bank v. Majerczyk, 2011 IL App. (1st) 110640, to cover handwritten signatures
of the clerk’s name placed upon the summons by a deputy acting under the authority of the clerk.

- John T. Hundley, jhundley@lotsharp.com, 618-242-0246
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