Thursday, December 15, 2011

Motion to Vacate Default Judgment Under 2-1301

In Illinois, a default judgment is entered when a person or entity does not show up for court. There are two (2) rules in the Circuit Court of Cook County or Illinois regarding default judgments. The first one is governed by 2-1301, which essentially says that a Judge should liberally vacate a default judgment as long as a petition to vacate a default judgment has been filed within thirty (30) days of the entry of a default judgment. The second standard is a more difficult standard, which is when a motion to vacate default judgment has been filed after 30 days from the entry of a default judgment.

For example, this morning my client had a hearing on a 2-1301 motion. At issue was whether our client filed a motion to vacate default judgment within thirty days after the entry of a default judgment. In this case, the Defendant had gotten a default judgment entered against her on August 24, 2011. The Attorney General made a mistake when drafting the default judgment order and put that the default judgment was in the amount of $74,000. On September 26, 2011, the Attorney General's Office corrected their mistake and the judgment amount was for $75,000 instead of $74,000 (figures are not exact but the example is still applicable). Our client hired our law firm around October 15, 2011. Thus, even if we would have known that the default judgment was actually entered on August 24, 2011 instead of September 26, 2011, our client still could not have filed a motion to vacate default judgment within thirty days of August 24, 2011.

In the instant matter, the Court ruled that the judgment date was August 24, 2011 and a clerical error occurred instead of a substantive or major error. Thus, our client lost the motion to vacate default judgment because it was not properly filed within thirty (30) days.

In January 2012, we have a hearing date to determine whether 2-1401 is applicable. 2-1401 is when a motion to vacate a default judgment is filed after the expiration of thirty (30) days after the entry of a default judgment. There are three (3) major factors that a court will consider with a properly brought 2-1401 motion to vacate default judgment. The first issue is whether the Defendant has been reasonably diligent in responding in a timely manner to the underline case. Simply put, the court wants to assess how responsible was the Defendant in keeping up with their court case and whether they acted in a reasonably diligent manner after they found out they had a default judgment. The second factor is that the default judgment was not entered in excess of a year from the date of entry of default judgment. The third factor is the Defendant has a meritorious case, which means that the Defendant has a reasonable dispute and a case to defend themselves in the underlying case.

Sean Robertson is managing partner of Robertson Law Group, LLC, which concentrates in civil and commercial litigation and asset protection for business owners and individuals. Sean Robertson deals with a lot of Motion to Vacate Default Judgment issues and go to trial and hearings on these issues. We can be reached at (312)-498-6080 or Sean@RobertsonLawGroup.com.



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1 comment:

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