August 23, 2023

Applicability of the Probate Act to Mortgage Foreclosures in Illinois

KK TAKEAWAY: Plaintiffs may achieve service of process on evasive or otherwise hard to find defendants via social media, text, and email.

BACKGROUND: 735 ILCS 5/2-203.1 – Service by Special Order of Court – provides that if service is impractical with traditional efforts, a party may request permission from the court to serve by comparable method:

If service upon an individual defendant is impractical under items (1) and (2) of subsection (a) of Section 2-203, the plaintiff may move, without notice, that the court enter an order directing a comparable method of service. The motion shall be accompanied with an affidavit stating the nature and extent of the investigation made to determine the whereabouts of the defendant and the reasons why service is impractical under items (1) and (2) of subsection (a) of Section 2-203, including a specific statement showing that a diligent inquiry as to the location of the individual defendant was made and reasonable efforts to make service have been unsuccessful. The court may order service to be made in any manner consistent with due process.

In recognition of social media and technology’s increased role in society, the Illinois Supreme Court recently amended Supreme Court Rule 102 to allow for service of summons via social media, text, and email. Ill. Sup. Ct. R. 102(f).

A party seeking to serve under the new amended rule must first show that the party to be served “has access to and the ability to use the necessary technology to receive and read the summons and documents electronically.” If satisfied, the court may enter a special order allowing for service by electronic means; however, a court is not required to allow it.

In addition, whether by social media, email, or text, the party must attach copies of the summons and complaint to the message and clearly provide notice that the party is being sued. A copy of the summons and complaint must also be mailed to the last known address of the recipient.

After service has been effected, a return must be filed with details on how the service was made, including a screenshot or screen-print of the transmission.

Notably, the methods listed in the amendment are not exhaustive, and the court may order a method not listed in the rule, so long as the manner is consistent with due process.

One thing worth noting prior to employing this tactic is that service pursuant to 735 ILCS 5/2-203.1 is not considered “personal” or “individual” service for the purpose of obtaining deficiency judgments against borrowers and guarantors. A defaulted defendant served by this method will need to be pursued in a separate lawsuit in order to collect on any balance remaining after judicial sale.

In summary, a plaintiff may serve defendants via various electronic means of communication, specifically social media, email, and text, when traditional methods have failed by bringing a motion in court to request service by special order of court.

Travis P. Barry
Attorney, Real Estate
Kelley Kronenberg-Chicago
(312) 216-8828
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