Foreclosed without notice: How a court order could be violating homeowners' due process (UPDATED)

(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.

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  • A point that was not elaborated is that the statute is clear regarding service of process and who may serve. The Illinois Compiled Statute states that the Sheriff shall serve process, then states that the Sheriff if disqualified renders the responsibility over to the coroner. This is in essence what the first sentence clarifies. There is a period at the end of this sentence. The next paragraph clearly identifies that the next portion refers to a population of one million or less. Cook County has a population of over 5 million according to the Census. There are transcripts regarding attempted amendments that clarify that only the Sheriff can lawfully and by statute serve process in Cook County not private process servers or detectives. The 3rd party process servers are freely allowed in counties of less than one million.The statutes pertaining to service as written are open to interpretation dependent on the reader. Usually interpreted to the readers favor which may be incorrect. Especially if it is a judge using discretion and a possible misinterpretation. To avoid this one goes to the illinois general assembly website to look up the legislative history to discover the legislative intent versus blind interpretation. What is there is very different from what the courts are forcing on the general public in foreclosure. The special standing order (2007-3) that bypasses the statutes can be considered legislation from the bench. Interestingly enough there is no State or Federal agency who has stepped up to look at the real intent of the statute or the effects of it's misinterpretation. The legislative intent clarifies that process servers that are trained by the Cook County Sheriff could be appointed, problem is the Cook County Sheriff does not and will not train anyone and does not want to participate in the training process as stated in the Legislative transcript! Meaning, no one has been trained by the Cook County Sheriff rendering all process servers an inability to serve in Cook County!

    it is in the transcripts. Where is the misunderstanding? There is a transcript in which there was a bill passed to allow persons over the age of 18 not a party to the suit to serve process. Yet it again states that it does not apply to Cook County in clear and conspicuous language! So how does the court, attorneys or anyone else get off forcing process by persons who are barred by statute to do so? In a court of law it is all about procedures derived from the statutes. If a regular person fails to follow the statute he or she will lose automatically. If the same person misinterprets the statute again he or she loses. Now when the big 12 go into court for the banks all interpretation in favor of the creditors is fair game. Forget what our legislatures intended it's about taking homes as fast as possible. The rights of the people are secondary to the clogged dockets and the wants of the foreclosing lenders. They say that there are 45,000 new foreclosure cases, 95% of the people in foreclosure never go to court. These cases are rubber stamped immediately,the case is called, no one shows, it gets the stamp. Less than 2 minutes before the court. The cases go smooth. the remaining 5% = 2250 cases have some sort of appearance in court by the public. This 5% is a problem for the court and foreclosing attorneys. They get paid to hear these cases too why look to short circuit the process. Without the special standing order it is possible that the fear is that more than 5% of the foreclosure defendants may show up to defend their homes, property and equity if the process is done properly. Who benefits? Your guess is as good as mine. Another issue for another time is the fact that even when the process servers claim to serve properly the attorneys still publish the notice of foreclosure, just incase someone goes to court and claims service was bad the foreclosing attorney can claim publication of service. John or Jane Q. Public out of luck again! Crook county at it again? Operation Greylord and Silvershovel need to come back for the protection of the citizens in foreclosure and the statutes made to protect them.

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    I am pretty sure that a non judicial foreclosure process allows lenders to sell a property in default without having to file a lawsuit. This is allowed because the mortgage contains a "power of sale" clause. Basically, the borrower per-authorizes the sale of the property to pay off the balance of the loan if it would end up in default. The lender will record a notice of default with the county recorder and mail it to the borrower. The borrower then has between 15 and 35 days to pay off the default and stop the foreclosure.

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