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Solo Practice

: Solo In Chicago

My 'Motion of the Month'

By Peter Olson

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This month it's been the old Motion to Vacate pursuant to 735 ILCS 5/2-1203, generally due to improper notice on the part of the moving party. These aren't quite as juicy as the 2-301 motions where you can wipe out maintenance awards, $500k in back child support, and even wed those who were seemingly previously divorced, but they're a nice tool too. Because I've had three improper notice cases just this month due to failure to follow local rule 2.1 in Cook and Supreme Court Rule 11 (which the local rule refers you to)...particularly by pro se litigants and Assistant State's Attorney (IDHFS cases).

Here's the full rule:

Rule 11. Manner of Serving Papers Other Than Process and Complaint on Parties Not in Default in the Trial and Reviewing Courts

Generally the zinger in these motions is that notice isn't properly given at the party's "residence."

(3) by depositing them in a United States post office or post office box, enclosed in an envelope, plainly addressed to the attorney at his business address, or to the party at his business address or residence, with postage fully prepaid...

The moving party must ascertain the non-moving party's residence and give the requisite notice at said residence, period. It's classic for the moving party to make-up an address or send it to some address that was referenced in the court file 20 years ago. The good thing for you when you bring the motion to vacate is that your client should have everything in his control that can prove his residency...mail, leases, deeds, voters reg., drivers license, ect.

Full post as published by Solo In Chicago on October 31, 2008 (boomark / email).

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