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I have not been personally served Summons re: foreclosure case. Should I show up to court so I am not a "no show"

Chicago, IL |

Chase's attorney mailed me a "notice of initial case management conference" but I have not been officially served. The county court docket states "alias summons issued and returnable". Will the judge enter a default judgment against me because I haven't filed my appearance? Or will the judge tell the Chase attorney that I must be officially served first? Should I go to court and request additional time to retain an attorney even though I haven't been officially served?

Attorney Answers 4

  1. Best answer

    You have received great advice. You might have some options, but what path you take will really depend on what you like to accomplish. What are the realistic goals: loan modification, no judgment against you, extra time to relocate, eliminate other debts, etc? I would definitely see a foreclosure/bankruptcy attorney asap. You will certainly benefit from understanding you realistic legal options, both in short term and long term. Good luck.

  2. You have the right to be served. You cannot be found in default until you are served. If you have no interest in regaining the property, then it may be in your best interest to not be served. If Chase files an affidavit stating it cannot locate you after making diligent effort, it can proceed to have you served by publication.

    If you are served by publication you are at risk of losing the collateral. However, a deficiency judgment ( the difference between what you owe and what the house sells for at the foreclosure sale) cannot be entered against you when service has been accomplished by publication only. The court only has jurisdiction to deal with the real estate and not the debt you may owe.

    Good luck.

    This response is being provided for information purposes only and does not constitute an attorney client relationship. Furthermore, I am only licensed to practice law in the State of Illinois. While there are oftentimes similarities between States' laws, there can also be large differences. You should not rely on this response as legal advice and are highly encouraged to speak to an attorney licensed in your State for an accurate legal answer.

  3. Check the court file to see if a return of service has been filed and if so what it says. The only way the other side can get a personal deficiency judgment against you is if you are personally served (unless your appearance is on file in the foreclosure action). Our appellate court has interpreted the phrase “personal service” in this context to include substituted service as well (which occurs when the sheriff or process server leaves a copy of the complaint and summons at the defendant's usual place of abode with a person of the family or a person residing there who is at least 13 and apprises that person of the contents and also mails a copy to the defendant). Good luck.

    Robert T. Kuehl
    Kuehl Law, P.C.
    Chicago, Illinois

  4. If you have not been served, you do not have the obligation to show up to any proceeding. The docket/[court file] must eventually contain this "alias summons" with an "endorsement" that you have been served.

    A default judgment could only be entered after a proper/legal service of summons. So, no, the Court could not.

    If you go to court and do anything but object to service, you are officially in the case as you will be deemed to have made an general appearance in the case.

    The Complaints for Foreclosure have many flaws in them. There are multiple "affirmative attacks" you can assert at the outset in order to dismiss the action altogether.

    You need to find an attorney ASAP.

    The author provides the preceding information as a service to the public. Author's response, as stated above, should not be considered legal advice. An initial attorney-client conference, based upon review of all relevant facts/documents, will be necessary to provide legal advice upon which the client should then rely.

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