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LawHelpNow
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how to file a motion to dismiss for improper ...

Resolved Question:

how to file a motion to dismiss for improper summons for the state of illinois?
Submitted: 6 years ago.
Category: Legal
Expert:  LawHelpNow replied 6 years ago.

Hello and thanks so much for choosing this forum to pose your important legal question. I will do my best to give you some honest and accurate guidance as I answer your question.

  1. I am a licensed attorney, and I hope that the following information will be helpful to you. However, please just write back if you have any follow-up questions or need clarification on anything. Here is how this sort of thing works under Illinois law.
  2. If you were not served properly, you can file a "Motion to Quash Service of Process." In this motion you will tell the court that you were not served properly. This motion needs to be filed with the court before you take any other action to fight the case. If you file another motion or pleading before you file this motion, you will not be allowed to fight the improper service.
  3. Sometimes motions are combined to argue more than one thing in a motion. For example, you may combine a motion to quash service of process and a motion to dismiss the case. However, if you choose to combine your motion to quash service of process with any other motion, it must be in the same motion and it must be submitted before any other motions are submitted in the case.
  4. The motion must tell the judge three things: (1) that you were never served with a summons; (2) that no one who lives with you and who is 13 or older was served with your summons; and (3) that you never appeared in the lawsuit.
  5. You will need to have this motion notarized. You should also add details about why the service was improper to help convince the judge. For example, if the sheriff says that he/she served you with the summons atXXXXXbut you live atXXXXX you should explain that in the motion and attach your utility bill fromXXXXXto support what you say. Or if the sheriff says he/she served a "22 year old" and you are 60 years old, you should point that out in your motion.
  6. Find out from the clerk of the court how to file the motion and how to set it up for the court call. When it is on the court call, the judge will hold a hearing to decide if he/she will grant your motion. Also, send a copy of the motion and a notice to the other side of the case, telling them when the motion will be presented to the court.
  7. You must tell the judge that you are trying to quash the service for lack of jurisdiction. Explain to the judge what you wrote in your motion, and tell the judge why the service was improper. If you have proof, like a utility bill or a witness, tell the judge about your proof. There are some limited standardized free legal forms available online, which can be used for guidance and reference for the overall format of typing the style of the case (caption), etc.

If the judge grants your motion, the person trying to sue you will have to start the process over again. But, they can make you come back to court if they serve you properly.

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Customer: replied 6 years ago.
I received a one letter summons with no attached documentation via regular mail. If I file a motion to dismiss for improper summons wouldn't that be filing both motions ie-motion to quash and motion to dismiss? I couldn't find a form that fit. Which one?
Expert:  LawHelpNow replied 6 years ago.

Hello again and thanks for writing back. I will be glad to comment further.

  1. In Illinois, there is no one certain free legal form for such motions. I provided you with what to include in the contents and how to file and serve it, but you have to draft a basic template or format. Many (probably most) attorneys subscribe to software packages for the jurisdictions in which they practice, but they tend to be rather pricey. A sample format follows.

I hope this has been of help. Take care and thanks again for choosing Just Answer™.

[Please click the "Accept" button. This is the only way I will get paid for my services.]

SAMPLE ONE:

IN THE _________________ COURT OF __________________ COUNTY, ILLINOIS

(Name of Defendant/Respondent)

vs. CASE NO:

(Name of Plaintiff/Petitioner)

MOTION TO QUASH SERVICE OF PROCESS OF SUMMONS AND FOR DISMISSAL OF PLAINTIFF'S/PETITIONER'S CAUSE OF ACTION

I, the above named Plaintiff/Petitioner, do hereby request quashal of service of process of summons and dismissal of Plaintiff's/Petitioner's cause of action.

[insert content addressed in my first answer, including listing the three grounds]

I request that, following a hearing, the relief request in this motion be granted.

(Date) (Signature of Defendant/Respondent)

__________________

SAMPLE TWO:

CERTIFICATE OF SERVICE

I, __________, the undersigned Defendant/Respondent do hereby certify that I have mailed the preceding motion to quash service of process of summons and for dismissal of Plaintiff's/Petitioner's cause of action to to the following by depositing the same in the United States mail, postage prepaid, to wit:

OPPOSING COUNSEL NAME AND ADDRESS

JUDGE'S NAME AND ADDRESS

This the ____ day of _____________________ 2008.

___________________________________

YOUR NAME AND CONTACT INFO

__________________

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