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SECOND DIVISION
June 3, 2003

No. 1-02-0811

JUSTICE BURKE delivered the opinion of the court:

Levy sale purchaser LaSalle Bank N.A. (LaSalle) appeals froman order of the circuit court granting defendant Halina Mauer'smotion to set aside a real estate sale and to extend the redemptionperiod. On appeal, LaSalle contends that the trial court erred insetting aside a sheriff's sale of the property because noirregularity occurred in the sale; in particular, there wasevidence, through an office custom and practice, demonstrating thatMauer received a copy of an appraisal of the property and a 60-daynotice required by section 12-911 of the Code of Civil Procedure(Code) (735 ILCS 5/12-911 (West 1998)). For the reasons set forthbelow, we affirm.

On August 5, 1997, Feligjan Niemiec obtained an ex partedefault judgment against Mauer stemming from a loan Niemiec hadmade to Mauer. On November 4, the trial court issued an orderrequiring Mauer to make installment payments of $200 per month toNiemiec. On April 24, 1998, Niemiec filed a motion requesting alien on Mauer's home located at 8005 North New England, Niles,Illinois, due to Mauer's failure to make the installment paymentsas required. On May 30, Niemiec assigned her judgment to NorthwestDiversified, Inc. (Northwest). On June 29, Northwest issued adirection to levy against Mauer's home. On July 8, the Cook CountySheriff's Office (the sheriff) served the levy upon Mauer bysubstituted service upon Jerzy Nowicki.⁽¹⁾ Personal service uponMauer was attempted three times and the sheriff was finallysuccessful in serving her on September 3. Thereafter, pursuant tostatute, three commissioners were summoned to appraise Mauer'sproperty. The appraisal indicates that the property was valued atmore than $15,000.⁽²⁾ On December 2, Mauer's home was sold at asheriff's sale to Northwest for $10,124, and the sheriff issued acertificate of sale to Northwest.

On June 14, 2000, Northwest assigned the certificate ofsheriff's sale to LaSalle. On June 15, because the period forredemption had expired, a sheriff's deed was issued to LaSalle. OnJuly 13, Mauer filed a motion to set aside the sale of real estateand to extend the period of redemption. Mauer alleged that thesale should be set aside because she had never been served with thelevy, a copy of the certificate of sale, or the appraisal and 60-day notice as required by section 12-911 of the Code. According toMauer's motion, she was unaware of any events in connection withthe sale of her home until June 16, 2000, when she received ademand for possession with a copy of the sheriff's deed fromLaSalle's attorney. Mauer further alleged that the home wasundersold at the sheriff's sale since she, in approximately 1988,paid $141,000 for it and, as of July 2000, it had an appraisedvalue of $250,000. Mauer also alleged that she and her husband,Jerzy Nowicki, were entitled to a homestead exemption since theyresided in the home. It was Mauer's contention that the saleshould be vacated because Illinois law is clear that where the salewas to pay a debt, there were irregularities in the sale, and thehome was undersold, the redemption period may be extended. Attached to Mauer's motion was her affidavit, in which she averredthat she had never been served with the levy, appraisal or 60-daynotice, the notice of sale, the certificate of sale, or thecertification of redemption, or given notice that the propertywould be sold.

In their reply to Mauer's motion to set aside the sale,LaSalle and Northwest merely admitted or denied the allegations ofthe motion; they did not set forth any legal argument. Thereafter,Mauer replied, stating that LaSalle and Northwest failed to presentany evidence or argument to dispute the allegations in her motionand, therefore, her motion should be granted.

On October 19, 2000, pursuant to the trial court's order, thesheriff filed an appearance as well as a response to Mauer's motionto set aside the sale. The sheriff denied that Mauer was notserved with the levy, which was confirmed by the affidavit ofMaureen Moore, attached to the sheriff's response. The sherifffurther argued that it was not his duty to serve a copy of thecertificate of sale upon Mauer and, therefore, admitted that he hadnot done so. Lastly, the sheriff admitted that he had notpersonally served Mauer with a copy of the appraisal and 60-daynotice.

On October 31, 2001, Northwest filed a supplemental responseto Mauer's motion to set aside the sale, contending that Mauer wastwice served with the levy, once personally and once by substitutedservice. Northwest further argued that Mauer had been served withthe appraisal and 60-day notice. Attached to its response was theaffidavit of Carmen Zinke. According to Zinke, from 1998 until2001, it was the practice and procedure of the Real Estate andJudicial Sales Division of the sheriff's office to mail everydebtor the notice required by section 12-911. Zinke further statedthat it was not the practice or procedure of the department to keepa copy of the notices mailed until sometime in 2000.

On November 6, the trial court granted Mauer's motion to setaside the sale and ordered the June 15, 2000, sheriff's deed nulland void. The court ordered LaSalle or Northwest to provide Mauerwith the payoff judgment amount by November 20. On November 21,Mauer filed a motion for a rule to show cause and for sanctionsagainst LaSalle and Northwest because no payoff amount had beenprovided to her.

On November 29, Northwest filed a motion to reconsider theNovember 6 order. Northwest alleged that Mauer had made materialmisstatements in her pleadings, that under section 12-116 of theCode, Northwest did not have notice of any irregularities in thesale and, therefore, such irregularities could not be used tovacate the sale, and that the lack of a copy of the 60-day noticesent to Mauer did not constitute an irregularity. Attached toNorthwest's motion to reconsider were three new affidavits: thoseof Zinke, Salvatore Aloisio, and Kenneth Swiatek, Northwest'spresident.⁽³⁾ Zinke averred that she was responsible for processingdirections to levy and to complete all work necessary to effectuatea sheriff's sale and for the issuance of a sheriff's deed. Zinkestated that she had no personal memory of the particular file atissue, but that she was able to state the procedures she followedin handling it. Upon receiving the direction to levy, she orAloisio opened a file and, upon payment of the necessary fees,placed the levy and a copy of the judgment with the sheriff forservice on the debtor. After service was obtained, she preparedpaperwork to summon three commissioners to appraise the property. The file in the instant case showed that the appraisal was returnedon September 23, 1998. Aloisio then assigned a sale date ofDecember 1, 1998, and gave the file to Zinke. Zinke placed thefile in a particular holder on her desk, which was used only forthose files that needed 60-day notices to be sent. According toZinke, she mailed a 60-day notice to Mauer on the same day Aloisioreturned the file to her. After mailing the 60-day notice, Zinkeplaced the file in a file drawer. According to Zinke, she had beenfollowing this same procedure for 12 years and had followed it onevery levy. Zinke further stated that if the notice had not beensent, the file would still be on her desk in the appropriate fileholder. In addition, there was no indication on the file that thenotice had been returned. Zinke also stated that the fileindicated that a notice of publication was signed on October 9,1998. Lastly, Zinke stated that prior to 1999, she never keptcopies of 60-day notices unless they had been returned by the postoffice.

Aloisio averred in his affidavit that he was Zinke'ssupervisor. Aloisio also stated that upon receipt of the directionto levy on Mauer's home, he placed this along with a copy of thejudgment with the sheriff for service. According to Aloisio, afterthe return of the substituted service on Jerzy Nowicki, Aloisiospoke with Swiatek, who requested that the levy be re-servedpersonally on Mauer. Aloisio then directed the sheriff to re-serveMauer, who was served on September 3. Upon receipt of the returnof service, Aloisio then directed Zinke to summon threecommissioners to perform an appraisal, which was returned onSeptember 23. Sometime between September 23 and October 1, Swiatekappeared in Aloisio's office and picked a date of sale, which wasDecember 1, 1998. Aloisio then made a notation of the date on thelevy file as well as on the sheriff's computer database. Thereafter, he immediately placed the file in its designated spoton Zinke's desk where all files were placed for mailing of the 60-day notices. On October 9, Aloisio pulled the file from the filedrawer, where files were placed after the 60-day notices had beenmailed. According to Aloisio, having found the file in its properplace, he executed the sheriff's notice of publication. Aloisiofurther stated that, at the time the 60-day notice was mailed toMauer, it was not the procedure of the sheriff's office to maintaina copy of the notice, nor to make any notations that the notice hadbeen sent. However, it was his position that 60-day notices werealways mailed in the ordinary course of business and that the onlyway the office kept track of notices was to move the file fromZinke's desk to the filing cabinet. Aloisio also stated that "asSelling Officer ***, [he] will not let a file go to sale unless allestablished procedures in the Sheriff's Office are followed inaccordance with law and in accordance with our ordinary course ofbusiness." Thus, he concluded that Mauer was served with a 60-daynotice.

On February 14, 2002, the trial court denied Northwest'smotion to reconsider. Northwest was again ordered to provide apayoff amount to Mauer by March 14, 2002. This appeal followed.

LaSalle contends that Mauer was not entitled to have thesheriff's sale set aside because there were no irregularities inthe sale; particularly, evidence presented of a custom and practicedemonstrated that Mauer was served with the 60-day notice asrequired by section 12-911 of the Code. Mauer, on the other hand,argues that an irregularity existed because she was not served withthe 60-day notice. Despite other issues raised by the parties, thedispositive issue here is what type of service of the 60-day noticeis required under section 12-911 of the Code and whether thissection was satisfied here.

Generally, our standard of review of a trial court's decisionto set aside a sheriff's sale is whether the trial court abused itsdiscretion. Merchants Bank v. Roberts, 292 Ill. App. 3d 925, 930,686 N.E.2d 1202 (1997). However, where, as here, the trial courtheard no testimony and based its decision entirely on documentaryevidence, "the rationale underlying a deferential standard ofreview is inapplicable, and a reviewing court will make anindependent decision on the facts." Muller v. Firemen's FundInsurance Co., 289 Ill. App. 3d 719, 724, 682 N.E.2d 331 (1997). See also Rosenthal-Collins Group L.P. v. Reiff, 321 Ill. App. 3d683, 687, 748 N.E.2d 229 (2001). In addition, because we arerequired to construe a statute, which involves a question of law,the trial court's ruling is subject to de novo review.

LaSalle argues that the evidence, based upon the custom andpractice of the sheriff's office, demonstrated that Mauer wasserved with the 60-day notice required by section 12-911 of theCode. LaSalle relies on the affidavit of Carmen Zinke. Additionally, LaSalle argues that section 12-150 of the Code doesnot require the sheriff to retain proof of service as the trialcourt held.⁽⁴⁾ LaSalle maintains that no irregularity occurred in theinstant case that would warrant setting aside the sale because theprocedure was the same for every levy sale in Cook County and, werethis court to require the sheriff to retain proof of service, manylevy sales would be subject to collateral attack.⁽⁵⁾ In this regard,LaSalle further argues that it had no notice of any allegedirregularities and, pursuant to section 12-116 of the Code, thesale cannot be voided without such notice to LaSalle.

Mauer argues that an irregularity existed in the sale becauseshe was not given the 60-day notice as required by law. Accordingto Mauer, the sheriff admitted in his response to her motion thathe did not serve her with the 60-day notice.⁽⁶⁾ Mauer further arguesthat neither LaSalle nor Northwest presented any physical evidencethat she had been served with this notice. With respect to Zinke'saffidavit (the second one), Mauer maintains that Zinke admitted shewas unfamiliar with Mauer's sale and, thus, she had no personalknowledge, thereby making her affidavit insufficient. Mauerfurther maintains that when an irregularity exists and a home isundersold, the deed must be voided.

LaSalle responds that section 12-911 of the Code does notrequire the sheriff to keep a copy of the notice, nor require anyparticular mode of service as the trial court erroneouslyconcluded. LaSalle maintains that service can be proven by methodsother than a physical copy of the notice, which Northwest didthrough the affidavits it submitted. As such, LaSalle contendsthat it proved service on Mauer by proof of an office custom. Specifically, LaSalle argues that the affidavits of Zinke, Aloisio,and Swiatek established an office custom. LaSalle further arguesthat there is a presumption that if something is put in the mail,and not returned, it was received.⁽⁷⁾ LaSalle also argues thatMauer's claim that she did not receive the 60-day notice isuncredible in light of her deceptive testimony in the priorforeclosure proceeding, i.e., that she was on a plane at the timeof the alleged service upon her, but evidence demonstrated that theflight had been cancelled, as well as her insistence that Nowickiwas entitled to the homestead exemption.

"The sale of one's property to satisfy his debt to another isa drastic remedy, and the provisions of the law by which it isbrought about must be strictly complied with, and, where this isnot done, courts will, where the price is inadequate, allowredemption upon equitable terms though the period of redemption hasexpired." Block v. Hooper, 318 Ill. 182, 187, 149 N.E. 21 (1925). See also Mohr v. Sibthorp, 395 Ill. 418, 424, 69 N.E.2d 487 (1946). In Mohr, the court further stated:

"The policy in this State, where noinnocent parties are involved, is to permit ajudgment debtor to redeem upon equitable termseven though the period of redemption hasexpired, where the provisions of the law havenot been complied with and the judgmentcreditor would otherwise gain a benefit towhich he is not entitled. [Citations.] Likewise, where land has sold for aninadequate price, irregularities will beseized up to set aside an execution orjudicial sale and to permit the judgmentdebtor to redeem. We will protect judicialsales to the end that creditors be paid theirdebts and that the purchasers at such salesshall not lose, and such sales will not be setaside for inadequacy of price, alone. However, we have also announced the policythat it is not the primary or other purpose ofthe law to protect one who seeks thedisproportionate benefit of procuring avaluable property for little or no outlay.

*** This court has held that aredemption, although a statutory privilege andto be exercised in substantial compliance withthe statute, is nevertheless looked upon withfavor and unless injury is to result to thepurchaser at the sale a liberal constructionwill be given redemption laws." Mohr, 395Ill. at 424.

As previously stated above, this case requires us to construea statute and our review is de novo. As such, the parties'arguments with respect to credibility, or lack thereof, areirrelevant and need not be further addressed.

The primary goal of statutory construction is to ascertain andgive effect to the intent of the legislature and the most reliableindication of the legislature's intent is the plain language of thestatute itself. Premier Property Management, Inc. v. Chavez, 191Ill. 2d 101, 121, 728 N.E.2d 476 (2000). We must examine thelanguage as a whole and consider each part or section in connectionwith every other part or section. Antunes v. Sookhakitch, 146 Ill.2d 477, 484, 588 N.E.2d 1111 (1992). Where the legislature usescertain words in one instance and different words in another, thelegislature intends different results. People ex rel. Ryan v.McFalls, 313 Ill. App. 3d 223, 227, 728 N.E.2d 1152 (2000). Wemust construe the statute so that no word or phrase is renderedmeaningless. Westcon/Dillingham Microtunneling v. WalshConstruction Co. of Illinois, 319 Ill. App. 3d 870, 875, 747 N.E.2d410 (2001). Additionally, "[i]f possible, courts must give effectto every word, clause, and sentence and may not read a statute soas to render any part inoperative, superfluous, or insignificant." Newland v. Budget Rent-A-Car Systems, Inc., 319 Ill. App. 3d 453,456, 744 N.E.2d 902 (2001). "The court, however, must construe thestatute as written and may not, under the guise of construction,supply omissions, remedy defects, annex new provisions, addexceptions, limitations, or conditions, or otherwise change the lawso as to depart from the plain meaning of the language employed inthe statute." In re County Treasurer and Ex-Officio Collector ofCook County, 323 Ill. App. 3d 1044, 1049, 753 N.E.2d 363 (2001). Where the language of a statute is clear, the court need look nofurther than the language itself. Puszkarska v. Chicago TransitAuthority, 322 Ill. App. 3d 75, 79, 748 N.E.2d 755 (2001).

Prior to a sheriff's sale taking place, the homeowner orjudgment debtor is forewarned and given an opportunity to avoid thesale. First, after the judgment creditor issues a direction tolevy, the sheriff's office, upon proof that the judgment lien wasproperly recorded, prepares a certificate of levy in the formdescribed in section 12-153 of the Code. 735 ILCS 5/12-153 (West1998). This certificate notifies everyone that by virtue of ajudgment against the judgment debtor, the judgment creditor haslevied against the premises specifically described in thecertificate. Pursuant to statute, this certificate of levy is thento be filed in the office of the recorder in the county in whichthe real estate is located. 735 ILCS 5/12-152 (West 1998). Noservice upon the judgment debtor, in any manner, of thiscertificate of levy is required by statute. However, it has beennoted that the "levy should be personally served upon the judgmentdebtor if possible." Raymond Ostler, Enforcing Judgments AgainstReal Estate in Illinois: A Step-By-Step Guide, 89 Ill. B.J. 234,237 (2001). This is so because the Illinois Supreme Court "haslong held that the statutory provisions that allow a judgmentdebtor to timely assert exemptions strongly favor service 'wheneverpracticable.' [Citation.]" Raymond Ostler, Enforcing JudgmentsAgainst Real Estate in Illinois: A Step-By-Step Guide, 89 Ill. B.J.at 237. See Rogers v. Barton, 386 Ill. 244, 249, 53 N.E.2d 862(1944). Presumably, based upon this latter principle, it is, andhas been, the custom and practice of the sheriff's office topersonally serve the certificate of levy upon the judgment debtor. In the instant case, both Zinke and Aloisio, in describing theirpractice with respect to every levy, averred that the judgmentalong with the levy is placed with the sheriff for service on thedebtor. Based upon the above principles espoused by our supremecourt, we believe that personal service of the levy, although notrequired by statute, is appropriate and the better practice giventhe vital nature of this notification to a homeowner that herproperty is subject to loss.

Next, when a homestead exemption applies, as in the instantcase, three commissioners are summoned to appraise the property. 735 ILCS 5/12-910 (West 1998). This is where the section at issuecomes into play. Section 12-911 of the Code provides:

"In case the value of the premises is, inthe opinion of the commissioners, more than$7,500, and cannot be divided as is providedfor in Section 12-910 of this Act, they shallmake and sign an appraisal of the valuethereof, and deliver the same to the officer,who shall deliver a copy thereof to thejudgment debtor, or to some one of the familyof the age of 13 years or upward, with anotice attached thereto that unless thejudgment debtor pays to such officer thesurplus over and above $7,500 on the amountdue on the judgment within 60 days thereafter,such premises will be sold." (Emphasisadded.) 735 ILCS 5/12-911 (West 1998).

This provision gives a homeowner a last chance to avoid the sale ofher home and the possible loss of her property in its entirety. Thus, we believe this, too, is a vital notification to thehomeowner. See Bullen v. Dawson, 139 Ill. 633, 643, 29 N.E. 1038(1892) ("[i]f such demand had been made or notice given, [theowner] would have had an opportunity, by paying off the judgment,to save his property from sacrifice").

No case in Illinois has addressed the type of service requiredunder section 12-911 of the Code. Contrary to LaSalle's argumentthat this section does not require any particular mode of service,we believe that it does. Although section 12-911 does not containthe term personal service, we find that the express language ofsection 12-911 mandates personal service. Section 12-911 uses theterm "deliver." It does not use the terms "send" or "mail," or anyother term synonymous with providing notice through the mail. Again, it uses the term "deliver." "Deliver" means to "give,transfer: yield possession or control of: make or hand over; makedelivery of." Webster's Third New International Dictionary 597(1993). "Deliver" has also been defined as "[t]o surrender toanother, hand over" and "[t]o take to the intended recipient." American Heritage Dictionary 378 (2d ed. 1985). These definitionsimply face-to-face or personal service. In addition, section 12-911 provides a mechanism for substituted service, i.e., uponsomeone 13 years of age or older that is a family member. Thislatter language alone demonstrates that personal service isrequired. If the sheriff were simply required to mail the notice,there would be no need to include such additional language in theprovision. To interpret section 12-911 in any other way would beto ignore this language and to render it meaningless. Thus, again,although the term personal service is not used, the actual languageof the provision connotes personal service. Lastly, the languageof section 2-203 of the Code, addressing service of processfollowing the commencement of a lawsuit, is instructive andsupports such a conclusion. The language of section 2-203 issimilar to that set forth in section 12-911. Specifically, section2-203 provides that service shall be made "by leaving a copythereof with the defendant personally," or "by leaving a copy atthe defendant's usual place of abode, with some person of thefamily, of the age of 13 years or upwards." 735 ILCS 5/2-203 (West1998). Clearly, section 2-203 provides for personal service orsubstituted service, which, too, must be personal.

Accordingly, we find that the 60-day notice, along with theappraisal, are required to be served by the sheriff upon theproperty owner personally or through substituted service. Based onthis conclusion, even were we to find that the affidavits offeredby Northwest in support of its motion to reconsider are proper,which they are not because they were offered by Northwest for thefirst time in connection with its motion to reconsider and withoutreasonable explanation as to why they were not timely submitted(Cabrera v. First National Bank of Wheaton, 324 Ill. App. 3d 85,101, 753 N.E.2d 1138 (2001); Woolums v. Huss, 323 Ill. App. 3d 628,640, 752 N.E.2d 1219 (2001); Montano v. City of Chicago, 308 Ill.App. 3d 618, 622, 720 N.E.2d 628 (1999)) and, even were we to findthat these affidavits clearly established and proved a custom andpractice on the part of the sheriff's office to mail a copy of the60-day notice to all homeowners, such custom and practice isnonetheless irrelevant. This custom and practice is insufficientto satisfy the mandates of section 12-911 of the Code and incontravention of the express language of that provision. Here, thesheriff's department has admitted, in its response to Mauer'smotion to set aside the sale, that there was no personal service onMauer. Accordingly, the statute was not strictly complied with andan irregularity existed in the sale.

We also conclude that Mauer's property was in fact sold at a grossly inadequate price. As stated above, the home was sold toNorthwest for $10,124. The commissioners' appraisal itself valuedthe property at greater than $15,000. Moreover, an examination ofthe public records in connection with the property would havedemonstrated that, in 1988, it was worth $141,000. Thus, evenbased on that outdated figure, Northwest paid only 7% of the valueof the property. We further note that although Mauer contends thatthe value of the property was $250,000, the inadequacy of the pricefocuses upon the value on the date of the sale and not a datesubsequent thereto. Bankers Trust Co. v. Chicago Title & TrustCo., 89 Ill. App. 3d 1014, 1021, 412 N.E.2d 660 (1980).

Based on our conclusion that an irregularity existed in thesale based on the fact Mauer was not personally served with the 60-day notice and Mauer's home was sold at a grossly inadequate price,we find that there were sufficient grounds to set aside the sale. Accordingly, the trial court did not err in doing so.

For the reasons stated, we affirm the judgment of the circuitcourt of Cook County.

Affirmed.

CAHILL and GARCIA, JJ., concur.

1. Nowicki and Mauer were married on February 13, 1999.

2. The appraisal form does not provide for an exact amount. Itmerely contains two lines to mark; either the property is valued atless than $15,000 or it is valued at $15,000 plus.

3. Although Swiatek attempted to show a custom and practice in the sheriff's office through his averments, this was improperbecause he was not an employee of that office. Swiatek alsooutlined his conduct in following the course of the proceedings andhis visits and contacts with the sheriff's office.

4. This section was not raised by LaSalle or Northwest beforethe trial court. Thus, it is deemed waived. Jones v. Chicago HMO,Ltd. of Illinois, 191 Ill. 2d 278, 306, 730 N.E.2d 1119 (2000). Inany event, there is nothing in this provision pertaining to serviceand, more particularly, pertaining to service of the 60-day notice.

5. Whether this is true or not is irrelevant if the statuterequires otherwise. The sheriff is presumed to know and follow thelaw as written.

6. We note that the sheriff only admitted that he had notpersonally served Mauer with a copy of the notice. He argued thathe had served her through the mail, based upon his office's customand practice.

7. Again, neither Northwest nor LaSalle raised this argumentbefore the trial court. In fact, LaSalle did not raise the issuehere until its reply brief. Thus, this issue has been waived. Hartmarx Corp. & Subsidiaries v. Bower, 309 Ill. App. 3d 959, 969,723 N.E.2d 820 (1999) (issues not raised until the reply brief arewaived).