CBA Record September 2017

for delaying enforcement or appeal of the order or enters an order which disposes of that last lingering party and claim. Kral v. FredHill Press Co. , 304 Ill.App.3d 988, 992-94 (1st Dist. 1999); Mares v. Metzler , 87 Ill.App.3d 881, 883-85 (1st Dist. 1980); Dubina v. Mesirow Realty Develop- ment, Inc ., 178 Ill.2d 496, 502-03 (1990). Armed with this body of law (the Kral, Mares, and Dubina decisions), you need to examine every pleading in the case and find that one unadjudicated claim or party. It might be, as in Mares , a defendant who was never served with process, or, as in Kral , a defendant who filed bankruptcy and whom everyone forgot about. It might be a bogus counterclaim filed by some defendant that everyone knows was filed only as a bargain- ing chip and that everyone disregarded. Or perhaps you will find that the default judgment was entered against your client on less than all counts of the complaint, and there remains a lingering count that was never disposed of. Without a 304(a) finding, any one of those things will trigger the Kral-Mares-Dubina doctrine and make your motion to vacate the judgment timely. This does not necessarily mean that the judgment must be vacated, only that the motion to vacate the judgment is timely no matter when it is filed. Kral , 304 Ill.App.3d at 994. You will still have to convince the court that your client is such a sterling fellow that he deserves to have the judg- ment vacated. But, it does enable you to

circumvent the two year limitation of 735 ILCS 5/2-1401, which otherwise would have been an insurmountable hurdle. Service of the 2-1401 Motion Ordinarily, a section 2-1401 motion must be served by summons, registered mail or publication. S. Ct. Rules 105(b), 106. However, if an attorney for the respondent on a 2-1401 motion is actively represent- ing the respondent in ancillary matters before the court in the same case, such as post-judgment collection proceedings, the motion may simply be mailed by first class mail to that attorney. Onewest Bank, FSB v. Topar , 2013 IL App (1st) 120010, ¶ 19; Welfelt v. Schultz Transit Co. , 144 Ill.App.3d 767, 772-73 (1st Dist. 1986); Public Taxi Service, Inc. v. Ayrton , 15 Ill. App.3d 706, 712 (1st Dist. 1973). In our hypothetical at the outset of this article, there was indeed an ancillary matter pending before the court: the judgment creditor’s attorney had issued a citation to discover assets pursuant to 735 ILCS 2-1402 (that’s 1402, not 1401), and so you would simply serve your motion and notice of motion on her. Richard Lee Stavins is a shareholder in the law firm of Robbins, Salomon & Patt, Ltd. in Chicago. He concentrates his practice in trial and appellate litigation. He is a member of the CBA Tort Litigation Committee and serves on the CBA Record Editorial Board.

Pro Bono Support

Are you looking for a pro bono opportunity that

fits your skills, interests and availability? The

CBF Pro Bono Support Program is here to help

connect you to meaningful pro bono volunteer

opportunities that are a good fit for you.To learn

more about potential volunteer opportuni-

ties, go to www.chicagobarfoundation.org/

resources/pro-bono or Contact Angela Inzano

at 312/554-4952 for assistance getting involved.

Nielsen Career Consulting

Career Counseling For Attorneys

Strategies and support for your career in or out of the law • 30 Years of Experience • Over 3500 Clients

#FBF #CBAHistory

The Chicago Bar Association

Standing over the entrance to the CBA Building is the male figure of Justice by sculptor Mary Block. The cast aluminum sculpture balances on the book of law while holding a bird (peace) in his right hand and a globe (the global nature of life) in his left.

Sheila Nielsen, MSW, JD

The Park Monroe 65 E. Monroe St., Ste. 4301 Chicago, IL 60603 (312) 340-4433 www.nielsencareerconsulting.com

CBA RECORD 29