Author: Revisions contributed by Cathy Schneider, CARPLS
Last updated: August 2011
Actions are commenced by the filing of a Complaint. 735 ILCS 5/2-201. A Complaint sets forth who the parties are, and advises the Court and opposing parties of the plaintiff’s cause of action. The Complaint must use clear and concise language and contain a prayer for relief. See generally, Article II, Part 6, but more specifically sections 2-601 through 2-614 of the IL Code of Civil Procedure.
Service can be made by the Sheriff or a Court-appointed process server. 735 ILCS 5/2-202, 203. In counties with a population of 2,000,000 or more, for example Cook County, original service must be by the Sheriff. Service of summons shall be made by leaving a copy with the defendant personally (personal service), or by leaving copy at the defendant's residence with a family member or person residing there of at least age 13, with information as to its contents, and then sending a copy by mail (substitute service).
(IL Supreme Court Rules 281-289) In addition to traditional forms of service, in a small claim case, service within the State may be by certified or registered mail. IL SCR 284. The Rules define a small claim as one seeking damages of $10k or less, excluding interest and costs. IL SCR 281.
Service by publication is authorized in claims “affecting property or status within the jurisdiction of the court, including an action to obtain the specific performance, reformation, or rescission of a contract for the conveyance of land," and where the defendant resides out of state or cannot be found on due inquiry, and after notice has been sent to the defendant’s last known address. 735 ILCS 5/2-206, 207. The defendant may be defaulted after 3 successive weekly publications in a newspaper published in the county in which the action is pending. Service by publication is also allowed in Forcible Entry and Detainer actions under certain circumstances. Section 9-107, Constructive Service.
Upon Motion, a court may order service by some other special means where the plaintiff can show what attempts have been made to find the defendant, and what makes service under Section 2-203 impractical.
If service is improper, the defendant must file a motion to quash service of process before filing any other pleading, except for a motion for extension of time. The motion must be supported by an affidavit, unless the facts that constitute the basis for the objection are apparent from the papers on file. This motion is made only to object to jurisdiction over the person. Warning: If defendant argues the case at all, the defendant has submitted to personal jurisdiction. The defendant should insist on a ruling on the jurisdictional issue. If the ruling is denied, the defendant may walk out and appeal, or the defendant may proceed with defending the case. If the motion to quash is granted, the defendant can leave and the plaintiff will have to issue another summons, called an alias summons, and attempt proper service all over. 735 ILCS 5/2-301; IL SCR 191.
A written appearance shall be filed within 30 days after service, unless the summons requires an appearance on a specified day. IL SCR 181. The court will require a fee to file an appearance.
If the defendant is required to file a written Answer to the Complaint, then the Answer must be filed within a specified period of time, which is determined by the type of case. The defendant's Answer may be due as early as the date for the filing of the Appearance, or it may be due 10 days after the deadline for filing the Appearance, or it may be due by a date set, or extended by the judge. IL SCR 181.
In the Answer, the defendant will admit or deny or state "insufficient knowledge to either admit or deny" to each statement in the Complaint. If the defendant states that he or she has insufficient knowledge to any portion of the Complaint, the defendant must attach an affidavit as to the truth of that statement. 735 ILCS 5/2-610.
The defendant may raise new matter by way of a defense in the Answer, known as an Affirmative Defense. An example might be Statute of Limitations. The Affirmative Defense should also have a prayer for relief. If the defendant raises new matter in an Affirmative Defense, the plaintiff must reply. 735 ILCS 5/2-602. See also 735 ILSC 5/2-613(d).
The defendant may also raise claims against one or more plaintiffs, or against one or more co-defendants. It shall be called a Counterclaim. 735 ILCS 5/2-608. The Counterclaim shall be part of the Answer.
(IL Supreme Court Rules 281-289) No Answer is required unless ordered by Court. IL SCR 286(a). The Rules define a small claim as one seeking damages of $10k or less, excluding interest and costs. IL SCR 181.
(Forcible Entry and Detainer) No answer is required unless ordered by Court. IL SCR 181(b)(2).
A Complaint may be dismissed because it is defective or due to some defense. 735 ILCS 5/2-619. The defects or defenses may be:
If the defective grounds do not appear on the face of the pleading attacked, the motion must be supported by affidavit.
(IL Supreme Court Rules 281-289) A section 2-619 motion would be allowed without leave of court. Only section 2-619 motions and motions pursuant to section 5/2-1001 of the IL Code of Civil Procedure are allowed without leave of Court. IL SCR 287. The Rules define a small claim as one seeking damages of $10k or less, excluding interest and costs. IL SCR 281.
A Complaint may also be objected to if the pleading itself is defective. 735 ILCS 5/2-615. Examples of defective pleadings are:
The Motion must point out the specific defects. The relief sought must be stated, such as striking the pleading or a portion of a pleading or dismissing the Complaint. The Court may permit or require pleading over or may allow the plaintiff to amend its Complaint, or the Court may terminate the litigation in whole or in part. Other pleadings besides Complaints may be subject to 2-615 Motions, for example Answers and Affirmative Defenses.
(IL Supreme Court Rules 281-289) A section 2-615 motion would not be allowed, unless leave of court permitted it. IL SCR 287. The Rules define a small claim as one seeking damages of $10k or less, excluding interest and costs. IL SCR 281.
After the defendant has appeared or after the time for the defendant has appeared has expired, the plaintiff may ask the court to enter summary judgment, sometimes called judgment on the pleadings, by showing there is “no genuine issue of material fact” and therefore the plaintiff is entitled to judgment as a matter of law. The plaintiff may seek this relief as to some or all of its claims. A defendant may also, at any time, move for a judgment in his favor as to all or any part of the relief sought. 735 ILCS 5/2-1005.
All pleadings shall be legible and titled properly (plaintiff’s name first). Also, the name, address and telephone number of the attorneys of record are necessary. IL SCR 131.
All pleadings shall be signed and addressed by a party or an attorney representing the party. Signatures indicate that the pleading has been made in good faith and that the pleading is not designed for any improper purpose. Abuse of this rule is grounds for court sanctions. IL SCR 137.
Pleadings other than the Complaint can be served on the attorney of record or the opposing party by personal delivery or by first class mail, postage prepaid. Pleadings must be served on all parties of record. IL SCR 11.
When service of a paper is required, proof of service shall be filed with the clerk. IL SCR 12
Continuances may be granted upon good cause shown, and at the Court’s discretion. 735 ILCS5/2-1007.
IL SCR 213 Interrogatories are written questions propounded by one party and required to be answered by another party. Only 30 interrogatories are allowed, including sub-parts, unless the parties agree otherwise or the Court grants leave for more. All parties entitled to notice must be served with copies of the interrogatories. The IL Supreme Court has approved interrogatories for certain types of cases, and litigants are encouraged to use them when possible. These include: Motor Vehicle Interrogatories to a Plaintiff or to a Defendant; Matrimonial Interrogatories; Medical Malpractice Interrogatories to a Plaintiff or to a Defendant Doctor or Hospital. A party receiving interrogatories has 28 days to answer or object.
IL SCR 214 Any party may request that another party produce "documents, objects, or tangible things, or to permit access to real estate for the purpose of making inspections or surveys, or to disclose information calculated to lead to the discovery of the whereabouts of any of these items, whenever the nature, contents, or condition of such documents, objects, tangible things, or real estate is relevant to the subject matter of the action." The party propounding the request shall include the time when the responses shall be due, but not less than 28 days. The party receiving the request must produce for copying, the documents, in the fashion they are normally kept. The party receiving the request must "seasonably supplement" the request with responsive items that subsequently come into that party’s control. All parties entitled to notice must be served with a copy of any request served.
IL SCR 216 A party may serve a request that another party admit certain relevant facts are true or that certain relevant documents are genuine. The party receiving the request must admit or deny by sworn statement or object within 28 days of receiving the request, or the request will be deemed true. Only 30 requests are allowed, including sub-parts, unless the parties agree otherwise or the Court grants leave for more.
IL SCR 202-207 and IL SCR 210 Depositions are generally the oral examination of a person for the purpose of discovery. Depositions may also be taken for purposes of evidence for trial. If a deposition is noticed and it is not stated whether it is for discovery or evidence, it will be considered a discovery deposition. Depositions may not last longer than 3 hours, except by stipulation or good cause shown. IL SCR 206(d). Depositions may be recorded or taken remotely and electronically. IL SCR 206(h) and IL SCR 206(g). The party taking the deposition shall pay the fees related to taking the deposition. IL SCR 208. A deposition of a party is set by notice and a deposition of a non-party is set by subpoena. IL SCR 204(a). Depositions are taken in the county where the deponent resides, works, or transacts business, but the plaintiff’s deposition may proceed in the county where the action is pending. IL SCR 203.
The parties must use reasonable efforts to resolve disputes over discovery, and only after counsel responsible for trial indicates that after personal contact with the opposing side that the dispute(s) cannot be resolved, may the parties seek redress from the Court. IL SCR 201(k). Participating in discovery waives that party’s right to object to the discovery. Discovery is generally not filed with the Court, but may be if required by local rules or by Court order. Sanctions for not complying with discovery can include staying the proceedings, debarring the filing of future pleadings, striking a claim or counterclaim or defense, debarring a witness from testifying or even a judgment. IL SCR 219.
IL SCR 222 All claims for $50,000 or less, or cases subject to Mandatory Arbitration, except Small Claims (claim for $10,000 or less), ordinance violations and Family matters are subject to this Rule. Under the Rule, the parties must disclose the factual basis and legal theories for claims or defenses, the names of witnesses and people who have given statements, a calculation of damages and the location and description of documents or objects relevant to the claims or defenses. The disclosure must be within 120 days of the filing of a responsive pleading to the Complaint, Counter Complaint or Third Party Complaint and must be accompanied by an affidavit that the party has complied with the Rule.
(IL Supreme Court Rules 281-289) No discovery is allowed in a small claim unless by leave of court. IL SCR 287. The Rules define a small claim as one seeking damages of $10k or less, excluding interest and costs. IL SCR 281.
A motion for re-hearing, modification, or re-trial may be filed within 30 days of the hearing. 735 ILCS 5/2-1203.
A motion filed in time stays the enforcement of the judgment. Otherwise, the judgment becomes final. Only the first post-judgment motion acts to stay enforcement of the judgment and to toll the time for filing an appeal. Once the first post-judgment motion is decided by the Court, the time periods for appeal and for any stay period begin to elapse. See also 735 ILCS 5/2-1401 Relief from Judgments.
A judgment by default may be entered if defendant fails to appear or plead. It may also be set aside or vacated if defendant files a motion within 30 days of the default judgment. 735 ILCS 5/2-1301.
Judgments may be set aside after 30 days and before 2 years under 735 ILCS 5/2-1401.
The purpose of the petition is to bring to the trial court’s attention facts not of record that if the Court had known, would have prevented the judgment. But the relief is not intended to excuse the party’s or his attorney’s negligence. To prevail on the petition for relief, the party seeking the relief must show the existence of a meritorious claim or defense and that party’s diligence in presenting the claim and filing the petition. The petition must be supported by affidavit.
“A judgment creditor, or his or her successor in interest when that interest is made to appear of record, is entitled to prosecute supplementary proceedings for the purposes of examining the judgment debtor or any other person to discover assets or income of the debtor not exempt from the enforcement of the judgment, a deduction order or garnishment, and of compelling the application of non exempt assets or income discovered toward the payment of the amount due under the judgment.” See generally 735 ILCS 5/2-1402 and IL SCR 277.
The judgment creditor may command that the judgment debtor appear in Court to reveal, under oath, what assets he has, and also that he bring documentation regarding any assets held. The citation proceeding is commenced by service of a citation issued by the clerk. The defendant will get a citation ordering his appearance with a warning of possible arrest for failure to appear. Any person who receives a citation to discover assets should appear in court on the date and time noted, to testify about assets. If the judgment debtor doesn’t comply, ultimately the judgment creditor can ask the court to issue a warrant, or body attachment so that the creditor can be brought in by the Sheriff for questioning. 735 ILCS 5/2-1402 and IL SCR 277.
The judgment creditor can issue a citation to a third party, like a bank, that might hold assets of the judgment debtor. The bank will freeze any assets that are not exempt and then there will be a hearing or return date on which the Court will decided if any non-exempt assets will be turned over to the creditor. 735 ILCS 5/12 701 et seq.
The judgment creditor can also send a citation notice to the judgment debtor’s employer to discover if the judgment debtor has wages that are not exempt. The employer is required to answer an interrogatory about any wages paid and whether they are exempt. If a turnover of wages order is entered, the employer must calculate the amount of garnishable wages each pay period and turn them over to the judgment creditor. 735 ILCS 5/12 801 et seq.
If there has been a prior supplementary proceeding with respect to the same judgment against the party, whether he is the judgment debtor or a third party, no further proceeding shall be commenced against him except by leave of court. IL SCR 277(a).
Generally the following assets are exempt from creditors: Take home pay up to $1,608.75 per month (this amount changes yearly); retirement; $15,000 of home equity; a car worth $2,400 or less; tools of trade worth $1,500 or less; up to $4,000 of any “other” property; student loan proceeds (20 USC 1095a(d)); social security income, disability benefits, pension, unemployment, public benefits, work comp, veteran’s benefits. 735 ILCS 5/12-1001; 735 ILCS 5/12-1006.
Once the judgment debtor has fully paid the judgment, the judgment creditor shall execute a Release and Satisfaction of Judgment. If the judgment creditor refuses, the debtor may petition the court for one. 735 ILCS 5/12-183.
Fees and charges must be waived if a court finds that the party is an indigent person, as defined in the statute. 735 ILCS 5/5-105, IL SCR 298. The party must file an application with the court accompanied by an affidavit demonstrating an inability to pay based upon lack of income and resources.
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