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While I cannot draft or prepare your argument for you through this service (it is outside the scope of our permissible activities as attorneys on this site), I believe I can assist you in finding the main points to address regarding this other party's antics in avoiding service (as well as the attorney's complicity in doing so).
The primary (and only) argument they have in their favor is that you failed to serve the summons by the return date. They will argue that the failure to serve by that return date will make the summons void.
You can argue in that the other side has behaved in such a way as to intentionally avoid service of a complaint it knew was pending against it (both through personal knowledge and through counsel). The party cannot benefit from its own intentional avoidance of the service (a party does not have to go out of its way to accept service, but breaching their agreement to accept service is another matter). You can also argue that the other party is not prejudiced by the late service (what this means is the one day delay does not cause the other party any monetary or procedural loss, imposition or delay in the proceeding, they were still served, and still failed to respond). You can further answer that the defendant's failure to accept service has unduly wasted resources of the parties and the court, allowing further delay will yet again increase these costs.
If you are unsuccessful, at a minimum you may be able to ask the court to order that the service is now deemed sufficient (that the summons as served acts as sufficient service on the defendant), and that the defendant be ordered to file a responsive pleading or answer so that you do not have to go through this again.
I hope the above is helpful, and that you are able to use these terms and tips to assist you in finding some legal support in your jurisdiction to boost your argument (out of equity, you should not be penalized for this conduct), if you have any questions please let me know.
Thank you for choosing Just Answer, please do not forget to rate my answer when you are satisfied. I am going to switch our conversation to "Q&A" to ensure that you can review my answer and that I can answer your questions quickly. I wish you the best in this matter. Best regards, Bill.
Can I still ask question about this case.
Can you let me know?
The judge did not dismissed the case, she asked me to re service the defendant, this time he accepted the complaint. Now his lawyer want it to be dismissed because what was in the complaint. The complaint was about the contract to buy the sign for my business. The contract stated that I have 15 days to get the permit from the city "Contracts contigent upon sign permit approval must seek application for permit or variance within fifteen days of contract date" The city rejected my request for the permit. I cancelled in 3 days which should make the contract invalid, this was my understanding. Within the contract, it also stated that "this contract shall be deemed enter into and performed in the state of Texas and buyer consents to the jurisdiction of Texas for the purposes of enforcement of the terms hereof"
I belief when I cancel the order, the contract is no longer valid.
The defendant's lawyer file the motion for the case to be dismissed due the fact that the order was through a website with fax of contract and that the defendant does not do business in illinois and contacts with state of Illinois for the court to exercise general or specific personal jurisdiction.
The lawyer made the motion to dismiss pursuant to 735 ILCS 5/2-619(9).
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