CBA Record September 2017

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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
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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
resources/pro-bono or Contact Angela Inzano
at 312/554-4952 for assistance getting involved.
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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.
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