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Motion to Quash - Cleaned Up-6

Motion to Quash - Cleaned Up-6

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Published by Joshua Karmel

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Published by: Joshua Karmel on Oct 08, 2011
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10/08/2011

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IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOISMUNICIPAL DEPARTMENT, FIRST DISTRICT
CAPITAL ONE BANK (USA))f/k/a CAPITAL ONE BANK, )Plaintiff, )v.)No. 06 M1 196691)PAUL A. SCHACHERER,)Room 1108Defendant,)and )THE PRESBYTERIAN HOMES, )Employer. )
NOTICE OF MOTION
TO:Vani VedamBlatt Hasenmiller,Leibsker & Moore,LLC125 S. Wacker Drive, Suite 400Chicago, Illinois 60606On
October ____, 2011
at
 __________.
, or as soon thereafter as counsel may be heard, Ishall appear before the honorable
Judge Presiding
, or any judge sitting in his/her stead, in thecourtroom usually occupied by him/her in Room 1108 of the Richard J. Daley Center, 50 W.Washington St., Chicago, Illinois, 60602, and present the attached
Special Appearance andMotion to Quash Service of Wage Deduction Summons _______________________________ 
Attorney for DefendantJoshua N KarmelThe Law Offices of Joshua N Karmel218 N Jefferson Street, Suite 102Chicago, Illinois 60661(312) 575-0666/Attorney No. 29766
 
IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOISMUNICIPAL DEPARTMENT, FIRST DISTRICT
CAPITAL ONE BANK (USA))f/k/a CAPITAL ONE BANK, )Plaintiff, )v.)No. 06 M1 196691)PAUL A. SCHACHERER,)Room 1108Defendant,)and )THE PRESBYTERIAN HOMES, )Employer. )
SPECIAL APPEARANCE AND MOTION TO QUASHSERVICE OF WAGE AFFIDAVIT SUMMONS
Defendant Paul A Schacherer, by and through his attorneys, The Law Offices of Joshua N Karmel, and pursuant to 735 ILCS 5/2-301, and moves this Court to quash service of wagededuction summons In support of his motion, Defendant states:1.Illinois law provides that service on individual defendants "shall be made (1) byleaving a copy thereof with the defendant personally, [or] (2) by leaving a copy at the defendant'susual place of abode, with some person of the family or a person residing there, of the age of 13years 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, ..." 735ILCS § 5/2-203(a). Illinois law also provides that, if the plaintiff is unable to obtain personalservice on the defendant, then “the plaintiff, his or her agent or attorney may file an affidavitstating that the defendant . . . . on due inquiry cannot be found . . . .” 735 ILCS 5/9-107.2. As set forth in the Affidavit of Paul A Schacherer, attached hereto, the Sheriff'sdeputy did not effect service on Paul A. Schacherer personally pursuant to § 5/2-203(a)(1), or through constructive service pursuant to § 5/9-107. See Exh. A at ¶ 3. Paul A. Schacherer has
 
never received notice of this action by personal service or by mail.
 Id.
 3. Defendant first learned about this action on about September 1, 2011 when thePlaintiff received a Wage Deduction Summons.
See
Exh. A at ¶ 5.4.The Affidavit of Paul A Schacherer, if unrebutted, should be taken as true and issufficient to support quashing service and setting aside any default judgment entered against himin this case. Nibco Inc. v. Johnson, 98 Ill. 2d 166, 173, 456 N.E.2d 120 (1983); Four LakesManagement and Development Co. v. Brown, 129 Ill. App. 3d 680, 683-84, 472 N.E.2d 1199(2
nd
Dist. 1984).5.Because the Court never obtained personal jurisdiction over Defendant, theservice of process must be quashed and any defaults or ex parte judgments entered againstDefendant Paul A Schacherer are void. See, e.g., Dec and Aque v. Manning, 248 Ill. App. 3d341, 618 N.E.2d 367 (1st Dist. 1993), cert. denied, 153 Ill. 2d 558, 624 N.E.2d 805 (1993);Bank of Ravenswood v. King, 70 Ill. App. 3d 908, 912, 388 N.E.2d 998, 1001 (1
st
Dist. 1979),quoting Illinois Valley Bank v. Newman, 351 Ill. 380, 383, 184 N.E. 636, 637 (1933) (“A partyclaiming the benefit of a decree upon constructive service must show a strict compliance withevery requirement of the statute, and nothing else will invest the court with jurisdiction or givevalidity to a decree when the same is called into question in a direct proceeding.”)WHEREFORE, Defendant Paul A. Schacherer respectfully requests that this Court enter an order:A.Quashing the service of the summons and complaint in this matter;B.Setting aside and vacating any default orders and ex parte judgments againstDefendant, Paul A. Schacherer andC. Granting any other relief this Court deems just.

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