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euphoric85 last won the day on February 16 2017

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  1. The initial hearing on my Motion to Quash came and went.. I presented case law affirming that Affidavits of substitute service are not prima fascia evidence, as Affidavits of personal service are considered, and that lacking any counter-affidavits from the process server, when challenged, the original Affidavit is worth diddly. So we now have an evidentiary hearing scheduled next month to determine the evidence of whether or not I was sufficiently served. So far I have Affidavits from my wife, myself, my brother-in-law and my landlord (with their property tax bill as proof they own the house), together stating that I'm the only adult male living at the house, I don't match the description given in the Affidavit of Service and that I wasn't home at the time of claimed service. I'm going to bring at least one of those affiants with me to testify in court. I'm assuming the Plaintiff will try to get the process server in court to testify as well. Can y'all think of any other ammunition I could get together to better prove any of the above? I investigated the smartphone suggestion, and confirmed that Apple (supposedly) doesn't store that location information on their end and can't provide it. Google maps doesn't show any of that history since I'm using an iPhone. The process server made a comment on the Affidavit of service that he had served me a few months prior, so I'm going to pull that Affidavit of service and see what he claimed there. Might be a way to catch him in his lies.
  2. Yea in this instance, I filed a motion and the judge set a date to hear arguments and specifically mentioned bringing case law to support. It's a Small Claims case so I'd reckon it's a bit less formal of a process than normal?
  3. So would you draw up something like "Brief in Support of Defendant's Motion of Whatever" that would just have excerpts from relevant cases with citations? Or does it need not be that formal?
  4. Thanks for this, I've already scared Midland away once with a MTC Arb, so if I can do a preemptive strike like you mention here with Cavalry, if I can get the current case dismissed first, I'll definitely give it a shot. I've found some pretty solid case law on my side of the Motion to Quash, but does anyone know exactly how I'd present it in court? Do I print out copies of each entire case, perhaps highlighting relevant passages? Or is just printing out the relevant passages with citations sufficient? When I bring these up during oral arguments I give a copy to both the clerk/judge and the opposing counsel, yes? This will potentially be my first time actually arguing a case so I really don't want to F it up! Lol
  5. Just to clarify with an example here. Here is an excerpt from West v. H.P.H., Inc., 596 N.E.2d 1, 231 Ill. App. 3d 1, 172 Ill. Dec. : "As a general rule, the sheriff's return should be considered prima facie evidence that the process was properly served upon the defendant in person, and it should not be set aside unless the return has been impeached by clear and convincing evidence. (In re Jafree (1982), 93 Ill. 2d 450, 67 Ill. Dec. 104, 444 N.E.2d 143.) The general rule, however, does not apply in the case of substitute service. When a return on substitute service is challenged by affidavit, and there are no counter-affidavits, the return itself is not even evidence. (Sullivan v. Bach (1981), 100 Ill. App. 3d 1135, 56 Ill. Dec. 450, 427 N.E.2d 645.)" Here is the relevant excerpt from Sullivan v. Bach, cited above: Where personal jurisdiction is based on constructive service, strict compliance with every requirement of the statute must be shown. (Clinton Co. v. Eggleston (1979), 78 Ill. App. 3d 552, 555.) Unlike personal service, no presumption of validity of service arises from serving a member of defendant's family at his usual place of abode. (Harris v. American Legion John T. Shelton Post No. 838 (1973), 12 Ill. App. 3d 235, 237.) When the return is challenged by affidavit and there are no counteraffidavits, the return itself is not even evidence and, absent testimony by the deputy, the affidavit must be taken as true and *1140 purported service of summons quashed. (First Federal Savings & Loan Association v. Brown (1979), 74 Ill. App. 3d 901, 906; Harris.) So these cases are drawing the same conclusions, but do I need to keep drilling down to these cases that are cited in the excerpts? Or just present these and/or any others that say the same thing?
  6. Also, I've found multiple cases that say the same thing but cite different source cases, do I need to dig into all these and find the original source? Or since they're all higher court cases, does it strengthen my point to just present all of them?
  7. This is a really great idea re: the smartphone! I wish I'd have thought of that before I wiped my phone last week arghh! By arbitration papers, you're referring to, for example, the JAMS application, etc? So if I go that route obviously it's unlikely they'll follow me into arbitration, but how does that usually play out? They just never respond to JAMS, the arbitration essentially remains open thus removing their right to take me back to small claims?
  8. I've got more of procedural question here.. how exactly does one present case law in open court, beyond citations you've already made in your motion? Do you print out the entire Opinion and highlight the relevant portions? Or is it sufficient to just print out the relevant sections with citations? And you give copies to both the judge and the opposing counsel/party?
  9. So I decided to file a Motion to Quash the process service and Dismiss. The Affidavit of Service claims that they served a John Doe who was sitting on my porch and wouldn't give his name, but confirmed he and I both live there. This is a complete fabrication. There are no other 13+ males at my house, the description the server gave for the man he served does not match mine, and we weren't even home when he claims to have made service. I submitted several Affidavits from myself and 2 others asserting those facts. A new hearing has been scheduled for the court to hear arguments on my Motion. The judge went on to say that Affidavits of Service are prima fascie evidence so a clear and convincing argument would need to be made to refute it. The judge also made a point to say to both I and the Plaintiff's attorney that any case law we could find on the subject should be presented at that time. I filed my own Affivadit stating I was not personally served, no other male adult lives at my house, the fact that I'm both 4 inches taller and ~100lbs heavier than the man the Server described, and establishing my whereabouts when I wasn't home at the time of supposed service. I filed an Affidavit from my wife stating there are no other residents than the two of us and our infant son and also establishing her and my whereabouts. One more Affidavit from the man of the house of the house we were at that night instead of being at home. Got all these notarized and attached to my Motion. Question is, what else can I provide to support my position here? I'm looking for case law on personal/substitute service but that will take a bit. I want to show up armed to the gills with whatever I can to get this to go through.
  10. I did find this from another IL OP post, wondering if after some editing this might work? But if I file a MTD, I'm told I cannot then file a MTC Arb "you cannot have a substantive motion ruled on and then file a motion to compel arbitration. That’s deemed “waiver.” " So perhaps combine them into one motion? i.e. "Motion to Dismiss, or in the alternative Compel Private Contractual Arbitration" That just sucks because, in one motion denial, my whole case is shot lol Motion To Dismiss Anon..doc
  11. Ahh that's what I was trying to determine was whether that was actually ambiguous or not. Sounds like it's not. Thanks! Yes, it's a Small Claims Summons with the case number marked "SC" which according to the courts website is consistent with a Small Claims case. Their website has a Civil Fee Schedule which lists the filing fees for an Appearance/Answer for "Claim Does Exceed $1,500.00 but not $15,000" as $198 Apparently it's just expensive to defend yourself in court in my county
  12. Right, but ambiguity in a contract will effect its enforceability
  13. My initial thoughts.. I could file a Motion to Quash for improper service, but I have a feeling that would be a waste of time. I don't know if the credit agreement they sent me during DV is actually for my account, but it and every Citi agreement I can find from 2014 have a Small Claims exclusion in the arbitration clause. Motion to Compel Arb got me a dismissal last time, so I was hoping I could do it again here, but perhaps not. Has anyone noticed that the SC arb exclusion in Citi's agreements is contradictory though? "What Claims are subject to arbitration? All Claims relating to your account, a prior related account, or our relationship are subject to arbitration, including Claims regarding the application, enforceability, or interpretation of this Agreement and this arbitration provision. All Claims are subject to arbitration, no matter what legal theory they are based on or what remedy (damages, or injustive or declaratory relief) they seek..." "What about Claims filed in Small Claims Court? Claims filed in a small claims court are not subject to arbitration, so long as the matter remains in such court and advances only an individual (non-class, non-representative) Claim." ...How can they say ALL Claims are subject, then say small claims are not? The evidence they submitted with the Complaint is pretty lacking, but what they sent me for DV was pretty exhaustive, so I know they have the documents to back up their claim, but they didn't include much with their Complaint. One concern about this is, the filing fee for an Appearance/Answer for this case would be $198. Is it at all possible to avoid paying that without a fee waiver? You can't get a waiver here without being on some govt program. If I file a MTD, and then they voluntarily dismiss, do I still have to pay the Appearance filing fee?