Motion to Vacate - Service Rules?

[NextLevel]

Noting that I'm in IL, I noticed that the original complaint was served upon me and my wife via certified mail.

I checked the Illinois Civil Rules and checked the service of process rules, and it stated nothing about CMRRR.

Subsequently (before I knew my arse/hole), I glumly accepted the letter, then the default judgement, then the ensuing bankruptcy I was forced into, blah blah balh.

Questions:

(1) Motion to Vacate - legal grounds? Merit?

(2) They'd notice and get right back on it. However, being including in Bankruptcy seems to cloud things. What's the deal with an active Ch13 and a component of that Ch13 being dismissed?

Thx and many thx

[admin]

What exactly do the laws say??

[NextLevel]

735 ILCS 5/2-203. Service on individuals.

Except as otherwise expressly provided, service of summons upon an individual defendant shall be made:

• by leaving a copy of the summons with the defendant personally,

• by leaving a copy at the defendant's usual place of abode, with some person of the family or a person residing there, of the age of 13 years or upwards, and informing that person of the contents of the summons, provided the officer or other person making service shall also send a copy of the summons in a sealed envelope with postage fully prepaid, addressed to the defendant at his or her usual place of abode, or as provided in Section 1-2-9.2 of the Illinois Municipal Code with respect to violation of an ordinance governing parking or standing of vehicles in cities with a population over 500,000.

The certificate of the officer or affidavit of the person that he or she has sent the copy in pursuance of this Section is evidence that he or she has done so. The officer, in his or her certificate or in a record filed and maintained in the Sheriff's office, or other person making service, in his or her affidavit or in a record filed and maintained in his or her employer's office, shall:

• identify as to sex, race, and approximate age the defendant or other person with whom the summons was left and

• state the place where (whenever possible in terms of an exact street address) and the date and time of the day when the summons was left with the defendant or other person.

Any person who knowingly sets forth in the certificate or affidavit any false statement, shall be liable in civil contempt. When the court holds a person in civil contempt under this Section, it shall award such damages as it determines to be just and, when the contempt is prosecuted by a private attorney, may award reasonable attorney's fees. (Source: P.A. 88-340.)

Case Notes:

Return of officer or other authorized person making service of summons on defendant by delivering copy to another person must show strict compliance with every requirement of statute authorizing substituted service. Dec and Aque v. Manning. 618 N.E.2d 367 (1993); appeal denied, 624 N.E.2d 805.

Under this paragraph, strict adherence to technical requirements is a necessity when substituted service of process is attempted upon a nonresident of Illinois. Taylor v. Landsman, 422 N.E.2d 403 (1981); rehearing denied, 425 N.E.2d 218.

735 ILCS 5/2-203.1. Service by special order of court.

If service upon an individual defendant is impractical under items (1) and (2) of subsection (a) of Section 2-203, the plaintiff may move, without notice, that the court enter an order directing a comparable method of service. The motion shall be accompanied with an affidavit stating the nature and extent of the investigation made to determine the whereabouts of the defendant and the reasons why service is impractical under items (1) and (2) of subsection (a) of Section 2-203, including a specific statement showing that a diligent inquiry as to the location of the individual defendant was made and reasonable efforts to make service have been unsuccessful. The court may order service to be made in any manner consistent with due process. (Source: P.A. 87-1165.)

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Seems like service via certified mail doesn't qualify. Now, I can technically author up a nice little motion to vacate based on this. However, this vacates the judgement, but doesn't prohibit the actions of the car company/note holder from pursuing renewed action -- which from past experience I know they surely will, and with vigor.

However, that is an all-together different matter. I know (or at least feel I know) how to fight them better this time - at least tie them up in court and make them feel the burden this time through. Some pressing questions:

(1) How does this affect my Ch13 filing, it at all

(2) What about monies already paid to them under judgement

(3) What about monies already distributed to them under Ch13 trustee duties

And,

(4) Should I do this NEXT year in August *(when the SOL in Illinois hits 4 years for this debt, date of first deliquency leading to chargeoff being 8, 2002).

Last, but not least:

I'd like to be prepared if this does go through and I do get the motion to vacate approved, then I know they'll be right after me, and as a new debt not covered by Bankruptcy (see questions above, related). The primary defense/counter-claim that I'd employ would be for charging the car company storage fees. I offered to voluntarily surrender their vehicle, and they flat-out refused.

Thx again

Nex

[NextLevel]

I'm reading up alot more, because either my post is too boring, people are too busy, or a combination of both.

What I'm reading is the law in Illinois, Compiled Statutes. ILCS 735-5/2-1401 is fairly interesting. It says that DEFAULT JUDGEMENTS cannot be motioned for vacation (haha) after 30 days from judgement. HOWEVER, a Petition for Relief From Default Judgement can be submitted to allow for ... what?

I don't know WHAT happens after that. I believe it's in essence asking the court to "Reconsider the Entire Ordeal, In fact, start from Square One". This means ... what? I'm stating as my reason for petition that original complaint and summons was served by mail, instead of via process server as required by another cool IL statute. (2-201.c), I think.

Geesh. I should probably just finish up the whole thing and become a lawyer while I'm at it. In fact, I'm seriously considering that. I've always been able to argue a point successfully. Seems logical...

anyhow

any help appreciated.