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HELP Illinois Small Claims Filed in TIME CRUNCH

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OK let me clarify my previous post, and give you some more info.

Here is what you do for now.

1. file appearance, and;

2. appear in court on the return date.

Their attorney will talk to you about settling. Tell them at this point 'no,' deny the allegations and when the case is called, tell the judge you want a trial. Tell the judge you want a date 90 days out or so.

In illinois, there is no need to file an answer in small claims. you appearing serves as a general denial, unless the notice to defendant on the summons states otherwise.

Read up on il supreme court rules 281-289.

if you file a 615 motion, you will need to file a motion for leave, same if you file a mixed motion under 619. An affidavit cannot accompany a 615 motion to dismiss.

So for now, just go to court and show up. i would like to know in more detail what evidence was attached to the complaint.

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Allright! So much for proof reading my own work! I wish I could take credit for the motion but as HOWUCAN2 stated it was written by someone else, I just took the parts I thought I needed. This guy is just a dumb old cop that is familiar with criminal courts and research. I am grateful for everones help and comments.

Again as my proof reading sucks if you could edit the name out of your posts or tell me how to redacte it I would be grateful.

We plan to file an appearance and other paperwork tomorrow. I will let everyone know how this works so others can use the wonderful advice I have been blessed with.

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PART 7.00 SMALL CLAIMS

(Effective December 1, 2006)

7.01 Forms of Summons and Complaint

7.02 Default

7.03 Contested Cases - Lake County

7.04 Motions and Special Appearances

7.05 Referral to Arbitration When a Jury is Demanded

7.06 (Amended) Dismissal for Want of Prosecution

7.07 Costs in Small Claims

7.08 (Amended) Small Claims Mediation

7.04 MOTIONS AND SPECIAL APPEARANCES

Motions shall be noticed and heard in accordance with Part 2.00. Any motion shall be noticed for a hearing on a date prior to the trial date. If, with leave of court, a motion is scheduled for hearing on the trial date, the parties shall be prepared to proceed to trial immediately after hearing of said motion.

Local Court Rules: Part 2 - Motions Notice

Make sure you follow the procedure.

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Hey, I want to thank you all for your insight and help. after several sleepless nights and learning way more than I ever wanted to know about Small Claims Court I have my wife squared away.

She file her paperwork yesterday and set a date for the first hearing on her motions.

We opted to do the following:

Mailed NOTICE OF ARBITRATION ELECTION to both the OC & JDC's attorney CMRR

File DEFENDANT'S ANSWER & AFFIRMATIVE DEFENSES w/ copy of above letter attached as evidence.

Filed MotionTO COMPEL PRIVATE/CONTRACTUAL ARBIRTRATION AND DISMISS OR IN THE ALTERNATATIVE, TO STAY PENDING ARIBITRATION a copy of the ArbitrationAgreement was attached as evidence with quoted portions highlighted. I choose to use the long, detailed version I posted. I understand while the Judge may not read it in it's entirity the JBD's attorney will be forced to.

I liked the idea of cutting the snakes head off. So she also file Motion to Strike Affidavit stating Plaintiff's Motion is Incompetent. A copy of the AFFIDAVIT was attached as evidence. Again I used the longer version I posted so the JDB's attorney has something to read and a bunch of case law to review. I think while this may have been unnecessary with the request for Arbirtration it demonstrates our resolve and forces the Judge to take a harder look at this case and maybe cases he sees down the road.

Her hearing is set for next month, so I will let you know how it goes. Anyone wanting copies of what I used please PM me. Again Thanks xdancex

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No we did not attach a motion for leave. I guess I'm lost why would we need to file a Motion for Leave in conjunction with our Motion to Compel? What would counsel's objection be? Is this some thing we should do? Our court date has been rescheduled for the middle of November.

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In small claims, no motion can be filed without leave of court unless it is a 619motion--affirmative defense, or motion for summary judgment.

I previously posted the applicable small claims rules for you to read, but again here it is:

Rule 287. Depositions, Discovery and Motions

(B)Motions. Except as provided in sections 2--619 and 2--1001 of the Code of Civil Procedure, no motion shall be filed in small claims cases, without prior leave of court.

The appropriate method would have been to attach the motion for leave to the motion to compel asking the court to accept the motion to compel instanter. motions for leave are almost always granted, but I saw a well written and well argued motion go down in flames up here because the pro-se didnt ask for leave, and instead the judge just gave it a trial date.

As I also had mentioned, you are not required to answer a complaint for small claims unless it is otherwise stated on the summons. Filing an answer isn't that tricky, but if not done correctly you can hang yourself real good real fast. And considering that rule 286 essentially serves as a general denial, it's both a waste of time for the court and for you to have filed an answer at all.

Rule 286. Appearance and Trial

If the defendant appears, he need not file an answer unless ordered to do so by the court; and when no answer is ordered the allegations of the complaint will be considered denied and any defense may be proved as if it were specifically pleaded.

Yes, so you showing up on the return date served as your denial to the allegations. Admission is not showing up. I am not an arbitration person. Never done it. Considered it, but never done it. The judge may have a tough question for you to answer when you have your motion hearing though.

If you want to send this case to arb., why did you file an answer and list affirmative defenses if you do not want the case tried in this courtroom?

If you feel that you have affirmative defenses, and you probably do, you should have just filed a 619 motion to dismiss.

You are creating WAAAAAAAAAYYYY too much work for yourself here.

some people don't like it here, but in IL standing IS an affirmative defense, AND unless it is timely raised, the Defendant will waive his right to raise it before the trial court.

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So what are you saying OP should do?

I have not dealt with small claims court (always big boys court) but I'd come across people who do file answers in small claim court and motion to compel arbitration at the same time. The only important matter is the ruling must be on the motion first, before anything else, after MTC is granted all other matters are moot, b/c Court lacks jurisdiction.

This is a good read for OP (same JDB and law firm )

Grant-hill et.al vs Cavalry (ND IL 2012)

- Google Scholar

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So what are you saying OP should do?QUOTE]

I'm not really sure. It MAY be possible to ask the clerk to strike the motion on its own, then refile the motion with the motion for leave attached. Otherwise, if the judge denies the motion, the OP should be prepared to orally ask the judge for leave to file MTC, or feel out the judge about refiling the motion.

My suggestion would be the following.

1. sit in court once or twice ahead of the hearing to feel out the judge.

2. hope the attorney doesn't bring up the leave issue.

3. if 2 happens, revert to last sentence of paragraph above.

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So if the opponent doesn't catch it Op is good to go ?

98% of the time opponent is too busy filing SJ and won't detect, if OP doesn't remind them of the flaw it will (most likely) not be noticed. After all Shindler is a law Mill , look up Pacer and see how many times sued by consumer. The case I posted is just one of many.

This is my understanding , opinion and experience only, YMMV.

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Funny I've never made it to big boy court. I have only been in SC, but maybe one day ill get out of pull-ups and make it to underwear.

Cautiously, I would say the OP is in good shape if it isn't caught. I can't speak for that judicial circuit or the judge.

You're right that theses firms are too busy doing other things--like scamming, stealing, and using the courts as a veiled disguise to their thuggery.

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Just recieved a notice of filing form Shindler Law firm. In a nut shell it states:

Plaintiff objested to bringing this motion cited Rule 287 section 2-619 and 2-10001 "No motion Shall be filed without leave of court. Plaintiff is not aware of any LEAVE.

RE first motion DEfendant refers to Arbirtration Agreement Attorney notes a "Claims Excluded fro Arbitration" provision " any claims where all parties collectively seek monetary relief in the aggregate of $15,000.00 or less in total relief, including but not limited to compensatory, statutory.... or any claim brought in and subject to the jurisdiction of a small claims court, so long as such matter remains in such court and advances only an individual, non-class claim. He then explains the Dollar amount states that because it is under &15,000 it is excluded from arbitration and is the juristiction of Small Claims.

The second motion again noted brought with out leave of court alleges that the plaintiff complaint relies exclusively on an affidavit. The affidavit is verification in support of the allegations in the complaint , not evidence. The Court may rely on the facts contained, ....... but if the caes proceeds to trial the Plaintiff will have to prove it's case through written documentary evidence and witness testimony.

Defendant attempts to make objections to admissibility of evidence as if this were a trial. Whether Plaintiff will be able to prove its case at trial is not the issue here. Plaintiff has done enough to put Defendant on notice as to it cause of action. Plaintiff also believes that this motion was brought without the Defendant having done requisite research of the issues. If defendant had bothered to read the entire Agreement before filing this motion Plaintiff's Counsel would not have to had to spend time responding to said motion.

Wherefore, Plaintiff respectfully requests that Defendant's Motion to Compel Arbitration or Dismiss and strike be denied.

Well, I guess the cheap shot means We have their attention. I can provide a redacted copy if necessary. Are we dead, is there another course of action. I am rereading the Arbitration Agreement, I have to say I am confused the loan was for less that the amount that they allege is excluded but Citifinancial required an arbitration agreement for the loan. Can the motions be refiled asking for leave of court? again please HELP!

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I guess it's time to ask for forgiveness.;)

This is me and please keep in mind I have not been to small claims,I would file motion to leave, apologizing for my short span memory to attach it with the rest of my filing !

What is the title of their motion ?

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If you are in the same boat as me you may want to read this case, I think it contains extremely valuable information, especially for those of us in Illinois.

It may help you prepare your defense and will show what type of JDB and Law Firm you are dealing with.

CAROLE GRANT-HALL, PAUL J. ASIAMA, CORNELIUS GRAY, AND JENA PERRY, ON BEHALF OF THEMSELVES AND THOSE SIMILARLY SITUATED, PLAINTIFFS,

v.

CAVALRY PORTFOLIO SERVICES, LLC(:twisted:), ARTHUR B. ADLER & ASSOCIATES, LTD. D/B/A ADLER & ASSOCIATES, LTD., LAW OFFICE OF KEITH S. SHINDLER, LTD. D/B/A THE SHINDLER (Swindler?:twisted:) LAW FIRM, AND KEVIN M. KELLY, P.C., DEFENDANTS.

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

You can read this at FIND A CASE . Just search the case name.

I intend to beat on them with a motion for discovery since all they attached to my complaint was an Affidavit of ownership.

-------------------------------------------------------------------------- I am not an attorney, I only wish to share information to help others with similiar problems, as I have been helped by this site!!

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Thanks everyone so much for all the help we received!! As a refresher this case is in Illinois Small Claims Court, 1st Judicial District, Southern Illinois. We had our first hearing on our motions and the Plaintiff's (Schindler Law Firm) local attorney was not prepared to answer our Motions and requested and was granted an extension.

I want to make a point for anyone that is thinking about fighting a suit here. DO IT! Don't be intimidated. This suit was against my wife, she has never testified in court in her 50 + years. With researching the forums here and the additional help you will receive you can fight the Bast_rds!!

We screwed up our initial motions by not asking leave to file them and by filing a MOTION for Arbitration when it really did not apply to our case. We went back and filed a Leave to file a Motion to Dismiss.

The Clerk's Office does not have any printed information for Defendant's or any sample forms on Small Claims to help you. They will accept forms modified from other Counties. They do not have a lot of cases fought and may not have the answer to your question, BUT, they will get the answers you need, even if they have to go ask the Judge. ( Our Clerk walked our Leave to File a Motion up to the Judge's office to be sure it was how he wanted it done and save us time!!)

The Judge is fair and understanding. He allowed me to help my wife with her testimony on the motions, offered understanding and compassion for a newbie. She apologized for not filing leave on our first two motions and asked that the Motion for Arbitration be struck. The Judge struck the Motion, noted that the the first two were defective , but still accepted the second of the first set.

So why am I telling you this?

We were the last case called. There were SIX PAGES ahead of us. EVERYONE else either did not show, and had a judgement placed against them by default OR went before the Judge and admitted fault without even questioning the suit. Neither the Court or the local attorneys retained by these JDB are used to a Defendant fighting back. And the attorneys appear clueless when you start citing case law.

Once we have a ruling on our Motion's to Dismiss and Strike the Affidavit I will post more.

Don't cave in. Fight that suit!

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and who want in the game by fighting. I bet the judge as refreshed to see a person who thumbs their nose a them.

I think the judge will deny the motion to dismiss because he has to rule on the merits but you are making them react to you and that is noble.

They didn't see that coming and they will get their feet under themselves.

great job on the bloody nose and split lip to them.

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Indeed good job.

Just keep it going, I agree with seadragon, you won't get a dismissal by court but law firm may voluntarily dismiss w/o prejudice.

When you go to court always get a stamped copy of the paperwork/order for your files, don't walk out without it. I see this many times when people just leave and then a surprise comes in the mail for SJ for not appearing in court.

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