Proper service of process is a critical first step in any civil lawsuit in Illinois, whether it involves a credit card lawsuit, a foreclosure, or even the revival of judgment. A lawsuit cannot proceed until the defendant is properly served with a summons and complaint in compliance with Illinois law. When this notification is defective, the defendant has the right to challenge the court’s authority to hear the case. This post explains why proper service matters, when and how to file a motion to quash service, and tips for building a strong defense.
What Is “Service of Process”?
“Service of process” is the formal way a defendant is notified that a lawsuit has been filed against them. In Illinois, service typically involves personally delivering a copy of the complaint to the defendant. If service does not happen in a legally valid way, the defendant can challenge it through a motion to quash service—a legal argument that the court should dismiss or invalidate the service because it didn’t comply with the law.
Why Does Proper Service Matter?
- Due Process
Under both Illinois law and the U.S. Constitution, every defendant must receive notice of a lawsuit and have an opportunity to respond. Without valid service, the court cannot enter a judgment that holds legal weight. - Jurisdiction
If the service is defective, the court lacks personal jurisdiction over the defendant. This means it has no power to decide the case or rule against the defendant. - Timing
Challenging improper service must usually happen early. If a defendant waits too long or participates in the case without objecting, they could lose the right to contest jurisdiction.
Methods of Service
In Illinois, service can be made in several ways, each with specific legal requirements:
- By sheriff
- By private process server
- By certified and USPS Mail (in limited cases)
- By posting on the defendant’s residence (common in eviction cases)
- By publication (if the defendant cannot be located and the court approves)
Common Grounds for Quashing Service
A motion to quash usually asserts that service did not comply with the state’s requirements. If the defect isn’t obvious from the existing court documents, the motion should include an affidavit detailing the facts supporting the challenge.
Under 735 ILCS 5/2-301, it must be raised before any other legal pleadings—like an answer or a motion to dismiss. Waiting too long can waive your right to object.
Here are typical grounds:
Improper Personal Service
- The complaint was delivered to the wrong address.
- Someone other than the defendant (with no authority to accept service) received the summons.
- Service occurred outside the court’s jurisdiction without a legal basis.
Improper Substitute Service
- The summons was left with a person who does not live in the defendant’s home.
- The summons was left with someone under 13 years old, violating Illinois law.
- The plaintiff failed to mail a copy of the summons after leaving it with someone else, as required.
Failure to Serve Within the Required Timeframe
- Illinois Supreme Court Rule 103(b) requires plaintiffs to exercise reasonable diligence in serving defendants.
- Significant, unjustified delays—sometimes months or years—can lead to the case being dismissed.
Defective Service on a Business Entity
- Under 735 ILCS 5/2-204, businesses must be served through an authorized agent, officer, or registered agent.
- Serving a random employee or the wrong entity is a valid reason to challenge service.
- If the registered agent cannot be found or the business fails to maintain one, service may be made on the Illinois Secretary of State under 805 ILCS 5/5.25.
- However, for service on the Secretary of State to be valid, the plaintiff must comply with all statutory requirements, including filing an affidavit of compliance, paying the $10 fee under 15.15(b) and mailing notice to the last known business address.
Remember, filing any motion or pleading before a motion to quash often waives your right to challenge jurisdiction. However, motions for an extension of time or certain post-judgment relief motions do not count as a waiver.
Insider Tips for Motions to Quash Service
Building a strong motion to quash requires evidence and attention to detail. Here are some practical strategies:
- Examine the Process Server’s Affidavit
- Check for errors in the address, physical description of the person served, timing and other relevant facts.
- Gather Video Evidence
- Look for footage from Ring doorbells, security cameras, or nearby businesses that could contradict the service details.
- Use Your ID to Challenge the Description
- If the affidavit describes someone who doesn’t match your age or appearance, your state ID or driver’s license can disprove proper service.
- Use Work Records as an Alibi
- Timecards, payroll records, or swipe logs can show you were elsewhere at the alleged time of service.
Motions to Quash Service by Publication
What Is Service by Publication?
When a plaintiff cannot locate a defendant, they may ask the court for permission to serve by publication under 735 ILCS 5/2-206. This involves:
- Demonstrating due diligence in attempting personal service.
- Filing an affidavit detailing failed attempts to find the defendant, for reasons like the defendant living out of state or actively hiding.
- Publishing notice in an approved newspaper for a set number of weeks.
Because the defendant may never see this notice, courts require strict compliance with all procedural steps.
How to Quash Service by Publication
You may challenge publication service if the plaintiff:
- Lacked Due Diligence
- Made only superficial attempts to serve you or used outdated addresses.
- Submitted a Defective Affidavit
- Failed to detail each method of finding you, or provided false or misleading information.
- Failed to Meet Publication Requirements
- Published notice in the wrong newspaper, for too short a period, or with critical errors in the text.
If any of these elements are defective, the court may invalidate the service by publication—even after initially approving it.
Schedule a Consultation with Steven Grace
If you believe you may have grounds to challenge your lawsuit with a motion to quash, schedule your free 15 minute consultation with Steven today. Additionally, a Chapter 13 bankruptcy or a loan modification may also help keep you in possession of your real estate.
