ITT Thorp Corp. v. Hitesman

450 N.E.2d 11, 115 Ill. App. 3d 202, 70 Ill. Dec. 798, 1983 Ill. App. LEXIS 1870
CourtAppellate Court of Illinois
DecidedMay 26, 1983
Docket82-480
StatusPublished
Cited by7 cases

This text of 450 N.E.2d 11 (ITT Thorp Corp. v. Hitesman) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
ITT Thorp Corp. v. Hitesman, 450 N.E.2d 11, 115 Ill. App. 3d 202, 70 Ill. Dec. 798, 1983 Ill. App. LEXIS 1870 (Ill. Ct. App. 1983).

Opinion

PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

Plaintiff ITT Thorp Corporation filed a complaint for foreclosure of a real estate mortgage against defendant Mary Louise Hitesman and other parties not germane to this appeal. After defendant failed to appear, plaintiff obtained a default judgment for foreclosure and sale. Thereafter defendant filed an answer to the original complaint and a motion to set aside the default judgment, which was granted. After the subsequent bench trial on the merits, the circuit court of Peoria County granted judgment in defendant’s favor.

On December 4, 1980, defendant mortgaged certain properties to secure a loan from plaintiff. In June 1981, she was stricken with a heart ailment and was thereafter unable to continue her employment. As a result of this, defendant was unable to make her monthly loan payments after September 1981. She thereafter contacted plaintiff to see if she could increase the term of the loan to lower her payments. Defendant was advised that increasing the term would not benefit her due to the amount of interest, and that plaintiff might be forced to commence a foreclosure action against her. On March 5, 1982, it did so,

Among the various instruments defendant admitted to signing on December 4, 1980, was an application for insurance and notice to loan applicant. By means of this instrument, a borrower was able to apply for credit disability, credit life, and property insurance. Defendant’s application reflected her election to be covered by single decreasing credit life insurance. Near the top of the printed form appears the following in red letters:

“INSTRUCTIONS: This request For Insurance Must Be Filled In And Signed BEFORE The Note Is Completed. Applicants) Must Initial Appropriate Box If Insurance Is Requested.” (Emphasis added.)

Accordingly, the box next to the elected life insurance was initialed. No other box was. Near the bottom of the form appears the printed statement “I [we] desire Credit Life Insurance,” immediately below which is a line for a date and signature. On defendant’s application, the date and her signature appear on this line. There are other such lines, including one above which appears on the printed statement “I desire Credit Disability Insurance.” On defendant’s application, none of these other lines are dated or signed.

In her answer and in her trial testimony, defendant responded that the mortgage and note in question were signed in blank and completed at a later time. As for the insurance application, defendant offered the following explanation on direct examination as an adverse witness:

“Q. And it states here on the application then, that you are applying for single decreasing credit life with premium of $1625 for 120 months?
A. Yes.
Q. Or over ten years?
A. He had me initial that.
* * *
Q. Also, I’d like to point out, there were other alternatives here where it says ‘Credit Disability Insurance will cost,’ that is all crossed out and then amount of monthly disability is crossed out. Do you recall that?
A. Being crossed out? No, sir, I don’t.
Q. Then also further down, we have some signature lines here and below the signature where it says, T or we desire Credit Life Insurance,’ then you signed that?
A. Yes, sir. As a transaction I had with him or anybody, I have always had disability insurance and credit life. * * *
Q. Well, now, down here where it says, ‘I desire disability insurance,’ there is a place to sign for this, and date it. That was not signed; is that correct?
A. It is dated 12-4-80.
Q. That is under the box where it says, ‘I desire credit life insurance.’ Could it have been that maybe you were just mistaken and you forgot to apply for credit?
A. No. I surely wouldn’t jeopardize my home, no.
Q. But you knew enough to apply for credit life insurance, though, and you even applied for an additional life insurance.
A. They have never denied me disability insurance, and I was under the assumption that I would be totally covered.”

On behalf of plaintiff, assistant manager Joney Pruss testified that corporate policy was that all forms must be completed before they are signed, and Nancy Remmert, a cashier, secretary, and notary public, testified that “[o]ur papers are always filled out.” Neither of the witnesses to the transaction, the office manager and defendant’s sister, were called to testify. The court found the documents were signed in blank and held in defendant’s favor.

The first issue presented for our review is whether the trial court erred in vacating the default judgment for foreclosure and judicial sale. Plaintiff disputes defendant’s claim that the court failed to obtain personal jurisdiction over her for want of proper service. While numerous arguments and counterarguments have been advanced by the parties regarding the propriety of service herein, we need consider but one.

The trial court granted plaintiff leave to employ “Steven D. Logue and/or his agent” as a private process server in this cause. Abode service pursuant to section 13.2(l)(b) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 13.2(l)(b)) was effected by Robert E. Sorrells of S. D. Logue and Associates. Where personal jurisdiction is based on constructive service, strict compliance with every requirement of the statute must be shown. (Sullivan v. Bach (1981), 100 Ill. App. 3d 1135, 427 N.E.2d 645; Clinton Co. v. Eggleston (1979), 78 Ill. App. 3d 552, 397 N.E.2d 183; Bank of Ravenswood v. King (1979), 70 Ill. App. 3d 908, 388 N.E.2d 998.) Section 13.1(1) of the Act (Ill. Rev. Stat. 1979, ch. 110, par. 13.1(1)) provides, inter alia, that “[t]he court may, in its discretion upon motion, order service to be made by a private person over 18 years of age and not a party to the action.” The statute confers upon the court the power to order service to be made by a “person,” rather than persons, and the limiting language “over 18 years of age” implies a corporate entity is not contemplated. This latter conclusion is supported by the fact that when the General Assembly lowered the age of emancipation to 18, the statute was amended to reduce the minimum age of a private process server from 21 to that age. (See Ill. Ann. Stat., ch. 110, par. 2—202, Historical and Practice Notes, at 129 (Smith-Hurd 1983).) Nowhere in the statute is there a provision allowing the person ordered by the court to effect service to designate another person to fulfill this duty; yet Steven D. Logue designated Robert E.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

West Suburban Bank v. Advantage Financial Partners, LLC
2014 IL App (2d) 131146 (Appellate Court of Illinois, 2015)
West Suburban Bank v. Advantage Financial Partners, LLC
2014 IL App (2d) 131146 (Appellate Court of Illinois, 2014)
C.T.A.S.S.&U. Federal Credit Union v. Johnson
891 N.E.2d 558 (Appellate Court of Illinois, 2008)
Schorsch v. Fireside Chrysler-Plymouth, Mazda, Inc.
527 N.E.2d 693 (Appellate Court of Illinois, 1988)
Sterne v. Forrest
495 N.E.2d 1304 (Appellate Court of Illinois, 1986)
State Bank v. Thill
481 N.E.2d 1215 (Appellate Court of Illinois, 1985)

Cite This Page — Counsel Stack

Bluebook (online)
450 N.E.2d 11, 115 Ill. App. 3d 202, 70 Ill. Dec. 798, 1983 Ill. App. LEXIS 1870, Counsel Stack Legal Research, https://law.counselstack.com/opinion/itt-thorp-corp-v-hitesman-illappct-1983.