(Originally published 7/22/10 at 5:20 p.m.) Chicagoan Rich Gregory figured it was only a matter of time before he'd hear from his bank after falling behind on his second mortgage. But when he was summonsed to foreclosure court in 2008, he realized his bank wasn't interested in negotiating.
Gregory noticed something "goofy" about the summons. Attached to it was a copy of the server's credentials, issued on the letterhead of former Cook County Circuit Court Clerk Morgan Finley, a man convicted of extortion and ousted from office more than two decades earlier. "I thought, 'This guy's not licensed. He's not authorized to do it," Gregory said.
Turns out that Cook County Judge Dorothy Kinnaird, who oversees the Chancery Division, issued a court order in June 2007, allowing lenders and servicers to sidestep the Cook County Sheriff's office and hire private agencies to deliver foreclosure summons. The idea was to free up a flood of new foreclosure cases. Lawmakers had toyed with the idea decades earlier. Ultimately, they decided that having a neutral party - primarily the Sheriff's office - delivering court documents would avert the sort of conflict that's brewing in the Cook County court system. Homeowners are now challenging the legitimacy of their summonses, and some are saying that they were never called to court to plead their case.
We hear that a lawsuit is coming down to challenge the court's use of special process servers.
As far as Marty Stack, legal council to the Sheriff's office is concerned, these questionable summonses could threaten the legitimacy of potentially thousands of local foreclosure cases. "Basically, all of these people could come back to vacate their case," Stack said. "The judge has no right to take away their due process."
The Chicago Reporter submitted a Freedom of Information request more than a month ago to find out if the homeownership default rate is higher for cases handled by private process servers. The answers, which we'll post on this blog as soon as we get the data, could help explain why some Chicagoans like Zabrina Worthy have gone into default without realizing their house was in foreclosure.
Worthy, who lives on the South Side, came home in the winter of 2008 to find her bungalow boarded up. "I knew I was headed toward foreclosure," she said. After falling behind on her monthly payments, which ballooned from $1,500 to $2,100, she applied for a home loan modification. Her plan B was to sell the home. "I had hired a realtor and we were going back and forth on a modification and the house was boarded up."
According to court records, the firm hired to deliver the summons made four attempts. Three were delivered to homes that were thought to be Worthy's relatives. A special process server reported that he delivered another summons to her house, which he noted was vacant with no furniture, according to a court affidavit.
Worthy's court file is indeed chock full of evidence that her home was not vacant as the special process server noted. Under a judge's order, she was eventually allowed to go back into the house to retrieve her belongings, many of which were ruined by squatters who broke into the house in the meantime, according to Worthy and court documents.
Worthy's attorney Kelli Dudley, who also works with the Fair Housing Legal Support Center at the John Marshall Law School, said she thinks that the mortgage company's "hired guns" submitted "bogus" documents to the court confirming that they delivered the summons.
Gregory also filed a lawsuit earlier this year. According to the suit, the summons was delivered by an unlicensed party and the documents were certified by an unlicensed notary, which Gregory believes should render them invalid.
The problem, according to the Sheriff's Assistant Chief Bill Henrichs, is that special process servers are operating without oversight. Technically, the firms are supposed to register with the sheriff's office before carrying out a summons. Only one has, according to Henrichs.
Chicago Democrat State Sen. Jackie Collins introduced a bill in late May aimed at further strengthening registration requirements.
"Nobody keeps track of how many, how they do it or what they do," Henrichs said. "Is it due process? Absolutely not."
UPDATE: The Chicago News Co-op has more on the aforementioned lawsuit. Check it out their report here.