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William B. Esq.
William B. Esq., Attorney
Category: Legal
Satisfied Customers: 3065
Experience:  Civil litigation attorney for individuals and businesses.
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I am the plaintif. For 6 months, I have tried to serve the

Customer Question

I am the plaintif. For 6 months, I have tried to serve the defendant, he avoid being served by the county sherif by telling them he is not available untill the day before the appeal date, then I went back to court to get a permission to have special processor to served him, he will not answer the door, he would have his wife or son answer the door.

Finally, I filled the motion to serve his lawyer or any member of his house hold, his lawyer showed up and said that he would help me serve him.

So, I filled again, the returned date was June 27th, the processor started communicating with the lawyer to get the defendant serve on June 6th (the processor forwarded me the email of the conversation), the lawyer stated I finally got hold of the defendant and that he will get back to him with date and time to hve the defendant served.

The lawyer did not get back to the processor until June 25th and he then arranged for the defendant to be served on June 28th.

On July 25th I went to court for default judgement. The Judge asked me to returned on Sept 10th for Prove-Up.

The lawyer now filed motion to Vacate the default judgement and to Squach the summons due to the fact that the summons was served the day after the return date.

The court date is next Friday Sept 6th, how should I prepare? What should I say to the judge? What should my defend be?
Submitted: 1 year ago.
Category: Legal
Expert:  William B. Esq. replied 1 year ago.

William B. Esq. :

Dear Customer, thank you for choosing Just Answer. My name is XXXXX XXXXX I would like to assist you today.

William B. Esq. :

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).

William B. Esq. :

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.

William B. Esq. :

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.

William B. Esq. :

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.

William B. Esq. :

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.

William B. Esq. :

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.

William B. Esq., Attorney
Category: Legal
Satisfied Customers: 3065
Experience: Civil litigation attorney for individuals and businesses.
William B. Esq. and 10 other Legal Specialists are ready to help you
Expert:  William B. Esq. replied 1 year ago.
Our chat has ended, but you can still continue to ask me questions here until you are satisfied with your answer. Come back to this page to view our conversation and any other new information.

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If you haven’t already done so, please rate your answer above. Or, you can reply to me using the box below.
Customer: replied 1 year ago.
What does squash the summons mean?
Customer: replied 1 year ago.
What does squarish the summons mean? What evidence should I take to court on Friday?
Expert:  William B. Esq. replied 1 year ago.
Dear Customer,

My apologies, I thought I had responded to you on another thread regarding the motion to quash and my efforts to find specific case law related to that (I looked for about an hour, but you will need to use a more specialized research tool such as Lexis Nexis or WestLaw - I do not have a subscription for each state as it would be prohibitively expensive).

Here is the other thread regarding that question: http://www.justanswer.com/law/7z0sg-does-squash-summons-mean.html

In sum: A motion to quash the summons is one that asks the court to deem the summons invalid at the time they were served. If the summons served is invalid, the service is moot, and the plaintiff is not properly joined in the case.

The statute that you will be working with is: http://law.onecle.com/illinois/735ilcs5/2-301.html

To beat this motion, you will have to argue on "equitable grounds" (fairness) as opposed to "legal grounds" (strict interpretation of the law). (Again I developed this issue a little further in the other thread)

Here is an additional article about service of process and grounds for dismissal (you have shown great diligence in your efforts to serve your complaint, it is unlikely that your case will be dismissed, this motion is probably just an effort to make your complaint more difficult to prosecute): http://www.querrey.com/assets/attachments/243.pdf

Remember, I cannot develop your legal strategy for you, but from a general legal perspective, you may wish to take into consideration the following:
A declaration from each of the process servers you used regarding their efforts to serve process (it can be short and direct, particularly given the timing of your upcoming hearing, but identify the efforts by the defendant to avoid service).
Any documentation or evidence of the agreements you had with the defendant's counsel (in my mind this would be the strongest argument and evidence in your favor - the defendant, with the assistance of his attorney, agreed to service, then breached that agreement).

Remember, even if you lose the motion to quash, ask that the Court enter an order in your favor that issues you a new summons and allows you time to serve the document on the Defendant.

I do not know the specific circumstances of your case, or why personal service is required vs. substitute service, but perhaps your request for a new summons should specifically ask that the summons be permitted to be served by "substitute service" which will allow you to leave it with the adult member of the household, or to mail it to the defendant's last known address (if permitted).

As it is possible that the court will quash the summons based strictly on the legal interpretation, be prepared to ask for the additional summons to be issued, and additional time. Here is an article that describes alternative forms of service (known as "substitute service") that will allow you to serve this individual in the future. http://www.freelegalaid.com/nav/illinois/general-legal-resources/article/service-process-requirements-illinois
Customer: replied 1 year ago.
Thank you for your response, I do not have access to other thread of response you mentioned, that thread was establish in error. The information you provided here is very helpful.
I do have documentation showing all my attempts to serve the defendant . I will present that. Thank you

If I have any more question, I will let you know.
Customer: replied 11 months ago.

Can I still ask question about this case.

 

Can you let me know?

Expert:  William B. Esq. replied 11 months ago.
Dear Customer,

You can continue to ask questions about this matter. If the question is about a new issue we are required to ask that you post it in a different thread, but we can answer follow up questions to the same question on this thread here.

If you would like to direct a question to me specifically, you can do so by typing "For William B. Esq. only ..." at the beginning of your question.
Customer: replied 11 months ago.

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).


 

Expert:  William B. Esq. replied 11 months ago.
Dear Customer,

This really does fall into a separate thread. I am happy to hear that the Defendant's original motion to quash was denied, but their current motion regarding personal jurisdiction is a separate issue.

The issue here is whether or not the Defendant "availed themselves of the jurisdiction of Illinois" by providing goods or services there (through the internet or by fax for example), in which case they can expect to be sued in that state for those transactions.

Regarding the merits of your case, I am not permitted to give you an interpretation of your express contract, so I will not be able to be of assistance in that regard. What I can tell you is that it does appear that may be two interpretations of the contract available.

The reason we ask that the questions be broken up is that both the website and each of us as experts are compensated by question (and by positive ratings for our responses) so we need to split up questions as to each issue. If you wish to become a subscriber, you can ask multiple questions on the same thread.

I hope the above will assist you in getting started in this matter, and again, congratulations on getting past the motion to quash.

I continue to wish you the best of luck in this matter.
Customer: replied 11 months ago.
Thank you Bill, I started a new thread, I really appreciate your input
Expert:  William B. Esq. replied 11 months ago.
You are very welcome. I do hope that you continue to receive the assistance you need. If you would like my input, I would be more than happy to continue to help (you can request my services directly if you desire).

I truly do wish you the best of luck in this matter.

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