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IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS MUNICIPAL DEPARTMENT, FIRST DISTRICT CAPITAL ONE BANK (USA) f/k/a

CAPITAL ONE BANK, Plaintiff, v. PAUL A. SCHACHERER, Defendant, and THE PRESBYTERIAN HOMES, Employer. ) ) ) ) ) ) ) ) ) )

No. 06 M1 196691 Room 1108

NOTICE OF MOTION TO: Vani Vedam Blatt Hasenmiller,Leibsker & Moore,LLC 125 S. Wacker Drive, Suite 400 Chicago, Illinois 60606

On October ____, 2011 at __________., or as soon thereafter as counsel may be heard, I shall appear before the honorable Judge Presiding, or any judge sitting in his/her stead, in the courtroom usually occupied by him/her in Room 1108 of the Richard J. Daley Center, 50 W. Washington St., Chicago, Illinois, 60602, and present the attached Special Appearance and Motion to Quash Service of Wage Deduction Summons _______________________________ Attorney for Defendant Joshua N Karmel The Law Offices of Joshua N Karmel 218 N Jefferson Street, Suite 102 Chicago, Illinois 60661 (312) 575-0666/Attorney No. 29766

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS MUNICIPAL DEPARTMENT, FIRST DISTRICT CAPITAL ONE BANK (USA) f/k/a CAPITAL ONE BANK, Plaintiff, v. PAUL A. SCHACHERER, Defendant, and THE PRESBYTERIAN HOMES, Employer. ) ) ) ) ) ) ) ) ) )

No. 06 M1 196691 Room 1108

SPECIAL APPEARANCE AND MOTION TO QUASH SERVICE OF WAGE AFFIDAVIT SUMMONS Defendant Paul A Schacherer, by and through his attorneys, The Law Offices of Joshua N Karmel, and pursuant to 735 ILCS 5/2-301, and moves this Court to quash service of wage deduction summons In support of his motion, Defendant states: 1. Illinois law provides that service on individual defendants "shall be made (1) by

leaving a copy thereof with the defendant personally, [or] (2) by leaving a copy at the defendant's usual place of abode, with some person of the family or a person residing there, of the age of 13 years or upwards, and informing that person of the contents of the summons, provided the officer or other person making service shall also send a copy of the summons in a sealed envelope with postage fully prepaid, addressed to the defendant at his or her usual place of abode, ..." 735 ILCS 5/2-203(a). Illinois law also provides that, if the plaintiff is unable to obtain personal service on the defendant, then the plaintiff, his or her agent or attorney may file an affidavit stating that the defendant . . . . on due inquiry cannot be found . . . . 735 ILCS 5/9-107. 2. As set forth in the Affidavit of Paul A Schacherer, attached hereto, the Sheriff's

deputy did not effect service on Paul A. Schacherer personally pursuant to 5/2-203(a)(1), or through constructive service pursuant to 5/9-107. See Exh. A at 3. Paul A. Schacherer has

never received notice of this action by personal service or by mail. Id. 3. Defendant first learned about this action on about September 1, 2011 when the

Plaintiff received a Wage Deduction Summons. See Exh. A at 5. 4. The Affidavit of Paul A Schacherer, if unrebutted, should be taken as true and is

sufficient to support quashing service and setting aside any default judgment entered against him in this case. Nibco Inc. v. Johnson, 98 Ill. 2d 166, 173, 456 N.E.2d 120 (1983); Four Lakes Management and Development Co. v. Brown, 129 Ill. App. 3d 680, 683-84, 472 N.E.2d 1199 (2nd Dist. 1984). 5. Because the Court never obtained personal jurisdiction over Defendant, the

service of process must be quashed and any defaults or ex parte judgments entered against Defendant Paul A Schacherer are void. See, e.g., Dec and Aque v. Manning, 248 Ill. App. 3d 341, 618 N.E.2d 367 (1st Dist. 1993), cert. denied, 153 Ill. 2d 558, 624 N.E.2d 805 (1993); Bank of Ravenswood v. King, 70 Ill. App. 3d 908, 912, 388 N.E.2d 998, 1001 (1st Dist. 1979), quoting Illinois Valley Bank v. Newman, 351 Ill. 380, 383, 184 N.E. 636, 637 (1933) (A party claiming the benefit of a decree upon constructive service must show a strict compliance with every requirement of the statute, and nothing else will invest the court with jurisdiction or give validity to a decree when the same is called into question in a direct proceeding.) WHEREFORE, Defendant Paul A. Schacherer respectfully requests that this Court enter an order: A. B. Quashing the service of the summons and complaint in this matter; Setting aside and vacating any default orders and ex parte judgments against Defendant, Paul A. Schacherer and C. Granting any other relief this Court deems just.

Respectfully Submitted,

________________________________________ Attorney for Defendant, Paul A. Schacherer Joshua N. Karmel The Law Offices of Joshua N Karmel 218 N. Jefferson St., Suite 102 Chicago, Illinois 60661 (312) 575-0666/ Atty No. 29766

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS MUNICIPAL DEPARTMENT, FIRST DISTRICT CAPITAL ONE BANK (USA) f/k/a CAPITAL ONE BANK, Plaintiff, v. PAUL A. SCHACHERER, Defendant, and THE PRESBYTERIAN HOMES, Employer. ) ) ) ) ) ) ) ) ) )

No. 06 M1 196691 Room 1108

Affidavit of Paul A. Schacherer The affiant, if sworn to testify, would testify truthfully as follows: 1. My name is Paul A. Schacherer. My last name is spelled correctly in the caption of the case, above. I am the defendant in the case listed above. 2. I never received the wage deduction summons in this case. I never received any court documents from a Sheriffs deputy or through the mail, so I did not know that there was a court case against me. 3. Neither I, nor anyone in my family, has lived at 5249 West Carmen, Chicago, Illinois 60630 since on or about January , 2006. 4. I learned about this case when I received the Wage Deduction Summons on or about September 1, 2011. 5. Under penalties as provided by law pursuant to Section 1-109 of the Code of Civil Procedure, the undersigned certifies that the statements set forth in this instrument are true and correct, except as to matters therein stated to be on information and belief and as to such matters the undersigned certifies as aforesaid that she verily believes the same to be true. Further affiant sayeth naught. Sworn and Subscribed Before Me This____ day of ______, 2011 By:_______________________ Notary Public _______________________ Paul A. Schacherer _______________________ Date

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS MUNICIPAL DEPARTMENT, FIRST DISTRICT CAPITAL ONE BANK (USA) f/k/a CAPITAL ONE BANK, Plaintiff, v. PAUL A. SCHACHERER, Defendant, and THE PRESBYTERIAN HOMES, Employer. ) ) ) ) ) ) ) ) ) )

No. 06 M1 196691 Room 1108

PROOF OF SERVICE BY MAIL I, the undersigned, certify that I served this notice by mailing a copy to the above-named party(ies) at the above-stated address(es) and depositing the same in the U.S. Mail at Chicago, IL at 5:00 p.m. on October _____, 2011, with proper postage prepaid.

[x] Under penalties as provided by law pursuant to IL.REV.STAT. CHAP 110 SEC 1-109, I certify that the statements set forth herein are true and correct.

Date:______________________ ___________________________ Signature

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