When you send something through the U.S. Postal Service by certified mail, return receipt requested, you receive two bits of paperwork. One is a receipt for the certified mailing, which is stamped by the post office and shows proof of mailing. The other is a "green postcard" that is mailed back to you showing that the article you mailed was received at the other end. These are pesky little pieces of paper that can be easy to lose, but sometimes they can be very important.
National City Mortgage v. Hillside Lumber, Inc., 2012 IL App (2d) 101292 (Mar. 8, 2012), illustrates what can happen if you lose those bits of paper. Plaintiff lender brought a foreclosure proceeding against its borrower and joined defendant because it had recorded a mechanic's lien. However, under the Mechanics Lien Act, 770 ILCS 60/24, defendant Hillside was required to serve plaintiff with notice of its mechanics lien. The parties cross-moved for summary judgment, with plaintiff claiming defendant had never served notice of the lien, and Hillside claiming it had. Normally, one would imagine that competing stories like this would preclude the entry of summary judgment. However, that is not the case where the question is whether notice was served. The court noted that in Illinois, service of notice is an issue that can be decided as a matter of law by the judge, under the right circumstances.
Here, the two sides provided competing affidavits that said "I never received notice," and "But I mailed it." At the hearing, the court asked whether the defendant had the receipt or the green card proving mailing or delivery, but defendant had to admit it could not produce them. Based on that, the court granted plaintiff's motion and denied defendant's motion. On appeal, the court held that the Mechanics Lien Act requires service of actual notice, and the burden was on the lienor to prove that notice was complied with. "[O]nce plaintiff asserted its lack of notice at the summary judgment stage, Hillside had to prove that plaintiff actually received notice. Hillside admitted that it could not produce documentation that it even sent notice, let alone documentation that notice was received." Therefore, the court affirmed the victory for plaintiff.
One might ask why the affidavit that the notice was mailed was insufficient to establish a fact issue. After all, there are many situations in which documents are lost, and a sworn affidavit is used to testify to facts even in the absence of the documents. Here, however, it seems that National City Bank stands for the rule that if there are dueling affidavits about whether or not notice of a mechanics lien was properly given, summary judgment is still possible and there is no substitute for producing the actual proof of mailing or proof of delivery documentation.