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TexLaw
TexLaw, Attorney
Category: Legal
Satisfied Customers: 4258
Experience:  Lead trial/International commercial attorney licensed 11 yrs
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I had a question about a Notice of Motion which was improp

Resolved Question:

I had a question about a Notice of Motion which was improper?
Submitted: 1 year ago.
Category: Legal
Expert:  TexLaw replied 1 year ago.

What is your question?

What was improper about the notice?

Customer: replied 1 year ago.

for Illinois civil caselaw; this is regarding a lawsuit against a condo association, but what's more important is how Plaintiff violated civil procedure.


We filed motion to dismiss this past Tuesday (Feb 19). It was to be heard on March 19 as judge already set briefing schedule.


Opposing party filed a Notice of Motion, NOT an Emergency Motion. They filed a motion to allow for an Amended Complaint. Opposing party/Plaintiff went in front of the Judge FEB 21. We received no notice except for 1st class postage, which was received today (a day after judge heard motion). The motion was written and filed the same day FEB 21 !!


 


He mailed us Motion to Amend Complaint, but NO Court Decision by Judge. He knew by mailing it the same day as motion was heard (Feb 21), we could not appear in Court !


 


is there any caselaw &/or Illinois Civil Procedure (735 ILCS), stating that non-movant of a motion MUST have proper service so non-movant can appear in Court to hear motion? .


 


opposing party clearly did not do this!


 


I must know something by Monday morning before 10am CST.

Expert:  TexLaw replied 1 year ago.

OK. I'll find some case law for you on this point. Did the judge grant the Plaintiff's motion?

Customer: replied 1 year ago.


The Plaintiff did not even let us know when he mailed the Notice of Motion and Motion !

Expert:  TexLaw replied 1 year ago.
OK, but you are not answering my question. Did the judge grant the Plaintiff's motion?
Customer: replied 1 year ago.


I don't know if judge granted it or not. someone told me to do a motion to strike instanter. would that make sense?

Customer: replied 1 year ago.

Plaintiff never enclosed Court order when he sent Notice of Motion or Motion. We, the Defendant, condo. assoc. even have a fax machine !

Expert:  TexLaw replied 1 year ago.

It would make sense if the hearing had not already happened. If possible, you need to call the court clerk and see what the court's ruling on the motion was.

The records may be online as well. Can you tell me your case number XXXXX the exact name of the court?

Customer: replied 1 year ago.


Cook County Circuit Court, 5th Municipal District


I have access to the Clerk of Circuit online case info


http://www.cookcountyclerkofcourt.org/


the case name is XXXXX XXXXX Terrace Maintenance Association


 


2012 M5 001905


 


for the case number XXXXX have to enter 6 digits, that's why you have to put 2 zeroes in front of 1905. The online case info is the left side of webpage


 

Expert:  TexLaw replied 1 year ago.

The court records are not showing that the Plaintiff filed a Motion to Amend in February. Rather, it shows that the Plaintiff filed the motion to amend on January 29th, which was allowed by the court. This isn't the motion to which you are referring is it?

Customer: replied 1 year ago.

No, it isn't.


I responded to the 1/29/2013, with a Motion to Dismiss 1st Amended Complaint.

Expert:  TexLaw replied 1 year ago.
Ok. According to the court's records online, the hearing was not held and the court did not rule on the Plaintiff's Motion. If this is the case, then you do not need to file a Motion to Strike, you need to simply file a Response to the Motion to Amend and request that the motion be denied. However, without being able to verify with the court at this point whether or not a hearing did take place as was noticed by the Plaintiff (which is doubtful because the court will not hold an ex parte emergency hearing without very good cause, and this does not sound like good cause), then it would be wise to have a "Motion to Strike and Motion for Reconsideration" prepared just in case you need to file it on Monday. I'll research the law you are looking for and get back to you soon.
Customer: replied 1 year ago.


Ok, thanks. When you say soon, would that be today or Monday?

Expert:  TexLaw replied 1 year ago.
Today.
Expert:  TexLaw replied 1 year ago.

Rule 2.1 of the Rules of the Circuit Court of Cook County controlls this situation. It reads as follows:

Rule 2.1. Notice of Hearing of Motions


(a) Notice required -- Except in actions appearing on the
daily trial call or during the course of trial, written notice of the hearing of
all motions shall be given to all parties who have appeared and have not
theretofore been found by the court to be in default for failure to plead, and
to all parties whose time to appear has not expired on the date of notice.
Notice that additional relief has been sought shall be given in accordance with
Supreme Court Rule 105.

(b) Content of notice --
The notice of hearing shall show the title and number of the action, the name of
the judge before whom, the time and date when, and the place where the motion
will be presented. If the motion is made orally, the notice shall state the
nature of the motion. If the motion is presented in writing, a copy of the
motion or a statement that it previously has been served, shall be served with
the notice. Copies of all papers presented to the court with the motion shall be
served with the notice or the notice shall state that copies have been
served.

(c) Manner and time of service of
notice


(i) Notice shall be given in the manner
and to the persons described in Supreme Court Rule 11. If notice of hearing is
given by personal service, the notice shall be delivered before 4 p.m. of the
second (2nd) court day preceding the hearing of the motion. If notice is given
by mail, the notice shall be deposited in a United States Post Office or Post
Office Box on or before the fifth (5th) court day preceding the hearing of the
motion.

You stated that Plaintiff mailed the notice of the motion on the same day as the hearing. So, in your Motion to Strike/Reconsider, you simply need to cite the above stated rule requiring notice. Then cite Stewart v. Lathan, 401 Ill. App. 3d 623 (Ill. App. Ct. 1st Dist. 2010) for the proposition that you are required by fundamental principles of due process to receive adequate notice of a motion before the court and that the court must reconsider any ruling made at the inadequately noticed hearing. Accordingly, the court must strike Plaintiff's notice and reconsider any ruling made.

You would then ask the court to grant your motion and deny Plaintiff's motion.

TexLaw, Attorney
Category: Legal
Satisfied Customers: 4258
Experience: Lead trial/International commercial attorney licensed 11 yrs
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TexLaw
TexLaw
Attorney
2718 Satisfied Customers
Lead trial/International commercial attorney licensed 11 yrs