Crouch and Schuetz Defend Process Server, Achieve Dismissal of Action Alleging Fabricated Affidavit of Service

Kate Crouch and Steve Schuetz, two old dogs, learned and demonstrated a new trick in earning dismissal of a Fair Debt Collection Practices Act and the Illinois Consumer Fraud and Deceptive Business Practices Act case in Cook County.  Plaintiff claimed that our client, a process server, falsified an affidavit of service and did not act reasonably in serving a person who claimed to be another.  Through a cavalcade of acts and omissions, Plaintiff was overlooked as a potential heir to her deceased brother’s estate, which allowed his home to fall into foreclosure and be sold.

Crouch and Schuetz dug deeply into the case law regarding these two statutes, as well as the state’s requirements for process servers.  We use these services daily in litigation, but there was much to understand about the process of identifying and serving legal process.  A large bank and its counsel were also implicated here, with all parties allegedly acting in concert and failing to use due diligence.  Making our work harder was a foreclosure court finding that cast our client’s efforts as “sewer service.”

After vigorous briefing, the Court granted our motion to dismiss.  We argued that Plaintiff’s entire cause of action rested on assumptions about what knowledge our client had when effectuating service and a nefarious coordinated effort with the bank and its counsel.  Plaintiff was correct that the proper person was not served by our client.  However, we successfully argued that Plaintiff could not prove that the process server intended for the plaintiff to rely on a deceptive or unfair practice.  The Court further agreed that Plaintiff’s complaint had a fundamental deficiency where she could not prove actual damages.  She was an unknown heir before the erroneous service; proper service would not have changed that fact or given her the opportunity to contest the foreclosure of her brother’s property.

Plaintiff banged on the table loudly in her complaint and her response to our motion, but LPP attorneys were able to lower the temperature, direct the Court’s attention to the statute, and secure a dismissal for a deserving client.  The Court’s ruling also averted an incalculable exposure for actual damages, statutory damages, attorney’s fees, injunctive relief, and punitive damages.