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legalgems, Lawyer
Category: Legal
Satisfied Customers: 9967
Experience:  Just Answer consultant at Self employed
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I was wondering if I can appeal an order of protection

Customer Question

I was wondering if I can appeal an order of protection against me?
JA: Because laws vary from state to state, could you tell me what state is this in?
Customer: Illinois
JA: Have you talked to a lawyer yet?
Customer: No.
JA: Anything else you think the lawyer should know?
Customer: It was granted based on lies. I can prove it. I unfortunately arrived late to the court because I had car trouble. I can prove that too. Also can that order of protection affect me as far as it being a record? Can I counter sue for defamation of character?
JA: What state is this in? And how old is the car?
Customer: Illinois. 2008.
Submitted: 1 year ago.
Category: Legal
Expert:  legalgems replied 1 year ago.

I am sorry to hear that; days like that are very difficult to get through; the good news is that there is a process called a Motion to Vacate Protective Order.

The relevant statutes are here

Basically, the court will allow a party to file a motion to vacate an order or judgment if there are reasonable grounds to do so. If the order was entered as a default order (ie the party did not show up) then the courts are more liberal in allowing this motion, precisely because the party did not get their day in court. While the court prefers finality of judgments/orders, they also value highly the justice process-which requires a person to have their day in court so they can present their side of the court.

With a default judgment, the court assumes that the party did not show up because they are not contesting the issue-as such, the court takes everything asserted by the plaintiff as fact, and thereby grants the requested relief.

If a party has a reason for not showing, then the courts are more liberal in allowing it, so it is a good idea to provide documentation (ie mechanic statement, tow truck receipt, etc)

And yes, an order of protection does remain on one's record so if possible it is a good idea to get it vacated.

As for defamation, the prosecutorial process provides the plaintiff immunity; however, one can bring an action for malicious prosecution- basically the same concept as defamation, and can sue for damages (ie attorney fees)

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Information provided is for educational purposes only. Consultation with a personal attorney is always recommended so your particular facts may be considered. Thank you and take care.

Expert:  legalgems replied 1 year ago.

Malicious prosecution has the following elements:

(a)defendant brought the civil/criminal suit, maliciously and without probable cause; (b) the termination of the underlying judicial proceeding in favor of the claimant; (c) some "special injury" or special damage beyond the usual expense, time, or annoyance in defending the underlying suit.

Expert:  legalgems replied 1 year ago.

Hi- just checking in to see if you needed clarification on any of the above information. If so please post here (there is no additional charge for this) and I will do my best to get you the requested information.

Thank you!