IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOISMUNICIPAL DEPARTMENT, FIRST DISTRICT

LUCIAN COLTEA, )Plaintiff, ))v.)No. 00 M1 734509)ARTUR BELLINGER,)ADRIENNE BELLINGER,)Defendants.)

NOTICE OF MOTION

TO:Sherwin M. Winer205 West Randolph, Suite 1240Chicago, IL 60606

On January ____, 2001 at __________ .m., or as soon thereafter as counsel may be heard, I shall appear before the honorable Judge Whiting, or any judge sitting in her stead, in the courtroom usually occupied by her in Room 1408 of the Richard J. Daley Center, Washington and Dearborn Streets, Chicago, Illinois, 60602, and present the attached Special Appearance and Motion to Quash Service of Summons and to Set Aside Default Judgment.

______________________________Attorney for DefendantVivian R. HesselLegal Assistance Foundation of Metropolitan Chicago111 West Jackson StreetChicago, Illinois 60604(312) 341-1070Attorney No. 91017

CERTIFICATE OF SERVICE

The undersigned attorney of record certifies that a copy of the foregoing was served by mailing the same to the address(es) indicated above, by first class mail, depositing said copies in the U.S. mailbox at Clark and Jackson Streets before 5:00 p.m. on January 29, 2001.

_______________________________ Vivian R. HesselIN THE CIRCUIT COURT OF COOK COUNTY, ILLINOISMUNICIPAL DEPARTMENT, FIRST DISTRICT

LUCIAN COLTEA, )Plaintiff, ))v.)No. 00 M1 734509)ARTUR BELLINGER,)ADRIENNE BELLINGER,)Defendants.)

SPECIAL APPEARANCE AND MOTION TO QUASH SERVICEOF SUMMONS AND TO SET ASIDE DEFAULT JUDGMENT

Defendant Adrienne Ballinger, by her attorneys, the Legal Assistance Foundation of Chicago, enters a Special Appearance pursuant to 2-301 of the Illinois Code of Civil Procedure, 735 ILCS 5/2-301 (1998), and moves this Court to quash service of summons and to set aside any default orders or judgments entered against her in the instant case. 735 ILCS 5/2-203(a) (1998). In support of her motion, Defendant states:

On or about December 5, 2000, Plaintiff filed this action in forcible entry and detainer and caused the Clerk of the Court to issue a summons against Defendant to be served upon her. Pursuant to an Order of Protection entered by the Domestic Violence Section of the Circuit Court of Cook County on or about October 28, 2000, Artur Ballinger is prohibited from residing with Defendant Adrienne Ballinger. See Affidavit of Adrienne Ballinger, Exh. A, at 2.

2

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) (1998). 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 (1998). When Plaintiff was unable to obtain personal service in this case, Plaintiff submitted an Affidavit for Service by Publication. However, Plaintiffs Affidavit for Service by Publication is directed only to Artur Ballinger, the co-defendant in this case. See copies of Affidavit for Service by Publication and Notice Requiring Appearance in Pending Action, attached as Exhibits B and C, respectively. Plaintiffs Affidavit is silent as to Defendant Adrienne Ballinger. Id.As set forth in the Affidavit of Adrienne Ballinger attached hereto, the Sheriff's deputy did not effect service on Adrienne Ballinger personally pursuant to 5/2-203(a)(1), or through constructive service pursuant to 5/9-107 (1998). See Exh. A at 3. Adrienne Ballinger has never received notice of this action by personal service or by mail. Id.Defendant first learned about this action on about January 26, 2001 when the Plaintiff told her that the Sheriff would be coming out to evict her. See Exh. A at 5. The Affidavit of Adrienne Ballinger, if unrebutted, should be taken as true and is sufficient to support quashing service and setting aside any default judgment entered against her 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).

Because the Court never obtained personal jurisdiction over Defendant Adrienne Ballinger, the service of process must be quashed and any defaults or ex parte judgments entered against Defendant Adrienne Ballinger 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 Adrienne Ballinger respectfully requests that this Court enter an order:A.Quashing the service of the summons and complaint in this matter;B.Setting aside and vacating any default orders and ex parte judgments against Defendant, Adrienne Ballinger; andC. Granting any other relief this Court deems just.

________________________________________ Attorney for Defendant, Adrienne Ballinger

Vivian R. HesselLegal Assistance Foundation of Metropolitan Chicago111 West Jackson, 3rd FloorChicago, IL 60604312/341-1070Atty. No. 91017

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOISMUNICIPAL DEPARTMENT, FIRST DISTRICT

LUCIAN COLTEA,)Plaintiff,))v. )No. 00 M1 734509)ARTUR BELLINGER,)ADRIENNE BELLINGER,)Defendants.)

Affidavit of Adrienne Ballinger

The affiant, if sworn to testify, would testify truthfully as follows:

My name is Adrienne Ballinger. My last name is spelled incorrectly in the caption of the case, above. I am one of the defendants in the case listed above. The other Defendant, Artur Ballinger, is my husband.

I obtained an Order of Protection against my husband on about October 28, 2000. It is in effect until November 15, 2001. The Order of Protection prohibits my husband from living in the apartment with me.

I never received the summons or complaint 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. Consequently, I was not in court on January 19, 2001.

I do not know whether my husband received the court papers for this case. However, if he did receive them, I believe that he would not have told me about them.

I learned about this case when my landlord told me that the Sheriff would be coming out to evict me.

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. ______________________________Adrienne Ballinger______________________________Date