Articles Posted in Civil Procedure

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In January 2003, Michael Henderson, the defendant, wanted to rehabilitate real estate he owned. He submitted a loan application to the plaintiff, National Lending Services Inc. National Lending approved Henderson’s loan. The loan provided for an adjustable rate interest in which the interest only was paid until the loan matured on June 1, 2004. 

Henderson signed a trust agreement providing that National Lending would distribute the loan funds as necessary to Chicago Title & Trust, which would then pay the construction companies that were doing the rehab work on the property.

Every month, Henderson would pay $185.83 as the interest payment required on the note. When the note matured in June 2004, rather than paying the remainder of the $322,983.41 that was due, he continued to make monthly interest payments. Finally, on Dec. 2, 2010, National Lending filed a lawsuit against Henderson for the unpaid balance of the note, plus per diem additional charges. Henderson appeared pro se in the case. 

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On July 31, 2008, a multi-car collision occurred in which the car driven by Gregory Mlot rear-ended the vehicle in front of him driven by Michael Dervin.  Wendy Palacios was a passenger in Dervin’s car.  It was alleged that the Dervin vehicle then rear-ended the vehicle in front of him, a Jeep driven by Lavita Gayle. 

Palacios filed a lawsuit for her injuries against Mlot, his employer, DMD Services, and Dervin. Dervin then filed a lawsuit for his injuries against Mlot and DMD Services. The cases were consolidated. 

In the answer filed by Mlot and DMD Services, they raised affirmative defenses of Dervin’s contributory negligence. 

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Archon Construction Co. was hired by the defendant U.S. Shelter to install a sewer system for a development, which was a small residential subdivision in Elgin. The contract between the parties was signed on June 5, 2005 and specified the types and quantities of material to be used by Archon. 

For example, PVC piping was specified. Any additional work beyond the original scope was, according to the contract, to be completed at an agreed upon price, time and materials. The City of Elgin was to review the work done by Archon within a year after completion of the work. U.S. Shelter hired a civil engineering firm to oversee Archon’s installation of the sewer system.  This was to make sure that it met with both the contract’s specifications and the City of Elgin’s legal requirements.

After Archon completed the installation, the engineering company reported that the work was done satisfactorily and complied with the contract and Elgin’s requirements.

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Slawomir Lubowicki and his wife, Agnieszka Lubowicka, held a mortgage from the plaintiff, CitiMortgage (Citi) in the amount of $329,000 for their home in Mount Prospect, Ill. In August 2009, Citi filed a lawsuit alleging that Lubowicki and his wife were in default in the payment of their mortgage and sought a writ of foreclosure on the property.

The special process server hired to deliver service of summons on the Lubowicki family testified that he served Lubowicki’s wife on Aug. 18, 2009, though his description of the time at which he served it was inconsistent with his affidavits. Further, the process server claimed that he mailed a copy of the summons and complaint in a sealed envelope, addressed to Lubowicki at his residence in Mount Prospect. 

On Aug. 30, 2009, the court found that Lubowicki and his wife were in default for failing to appear or plead and entered a judgment for foreclosure and sale of the property. Subsequently, the property was sold in a judicial foreclosure sale that was confirmed by the trial judge on March 10, 2011.

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Deutsche Bank National Trust filed a lawsuit against Michael Plowman in 2010 to quiet title for a property located on Chicago’s North Side. The lawsuit alleged that Deutsche bank acquired title to the property by a foreclosure. The complaint also alleged that the property had been improved by the construction of a two-story house. 

In addition, it was stated in the complaint that Plowman owned an adjacent property that was also improved with a residence. The two structures were connected by a one-story structure spanning the boundary of the two properties. 

The lawsuit stated that Plowman had taken possession to control the double property. Plowman’s possession blocked Deutsche’s bank access to the property. There was also a dispute as to where the property line between the properties was located.

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The Illinois Appellate Court has reversed a decision by a Cook County judge in a case involving two statutes of limitation, which were possible choices in a breach of contract case.

On Aug. 2, 2002, the plaintiff, Advanced Credit Inc. (ACI), and the defendant Samuel Linares signed a promissory note in the amount of $8,000 at an interest rate of 20%. The note required Linares to pay ACI $8,000 plus interest on demand. On Dec. 1, 2004, ACI demanded the loan’s repayment. Linares did not pay. Nothing was done at that time.

On Aug. 25, 2010, ACI filed a lawsuit in the Circuit Court of Cook County demanding enforcement of the note. ACI alleged that the amount due, including principal and interest after giving Linares credit for payments made, was $20,192. In addition, ACI demanded a per diem interest at $2.67 plus attorney fees and court costs.

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Plaintiff Joyce Kilburg was injured while she was a passenger in a taxicab. She filed a lawsuit claiming negligence and spoliation of evidence against defendants, which included the driver of the Zante Cab Co. taxi, Taxi Medallion Management, Inc. (Taxi Medallion), Taxi Affiliation Services, LLC (Taxi Affiliation) and Wolley Cab Association (Wolley). 

On the defendants’ motion under Illinois Code of Procedure §2-615, the spoliation claims were dismissed. The plaintiff appealed, arguing that the trial judge erred in dismissing the spoliation claims because her complaint sets forth sufficient facts to show that defendants had a duty to preserve the evidence.

In this case, on Oct. 6, 2009, Kilburg was injured when a taxi in which she was a passenger left the roadway and crashed into a tree. Zante was the owner of the taxi. On Oct. 8, 2009, Zante towed the taxi to a lot on Elston Avenue in Chicago. Taxi Medallion leased the lot and stored taxis there.

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A breach of contract case was interrupted by the death of the individual plaintiff, Theodore Sarche. Mr. Sarche’s death led to his law firm moving to appoint a special representative under Section 2-1008(a) of the Illinois Code of Civil Procedure.

An affidavit was later supplied by Sarche’s sole surviving child, Michael Sarche, who attested that he authorized his father’s law firm to continue prosecuting the case against the defendant. 

Michael Sarche did not open a probate estate because his father had limited assets. Michael was living in Colorado. Based on Michael’s instructions, the law firm moved to substitute Carol Mohica, a paralegal at the law firm, to act as plaintiff under the special representative piece of that statute.

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The Illinois Supreme Court heard arguments in a car accident case regarding a lawsuit brought against a deceased motorist. Two years after a 2008 car crash, the plaintiff, Sandra Relf, filed a personal injury lawsuit against a motorist she believed was negligent in causing her injuries.

The issue in this case was that the defendant, the man that Relf sued, had died three months after the car crash. Under Illinois law, there is a procedure for the event of the death of a plaintiff or defendant during the course of the legal process. In this case, the trial court ruled in favor of the defendant, finding that Relf had not properly sued the correct party, the estate of the decedent. But on appeal, the Illinois Appellate Court First District overturned that order.

On review by the Illinois Supreme Court, the plaintiff contended that she was unaware that the defendant, Joseph Grand Pre Jr., had died. Once Relf learned of the death of Pre, she amended the complaint and named an employee of the plaintiff’s lawyer’s staff as the special administrator of the Pre estate. However, as a matter of fact, Pre’s family had opened a probate estate months before Relf filed the original lawsuit. The defendant argued that Relf should have known by a simple on-line search of the Cook County court system that the defendant, Pre, had died and opened up a probate estate.

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A recent Illinois Appellate Court decision provided additional clarification regarding the admissibility of photographic evidence. At issue was whether or not a judge had correctly allowed photographs taken at the scene of an accident to be admitted into evidence during a Cook County personal injury trial. The appellate court ruled that judge had and upheld the jury verdict in Patricia Williamson v. Luis Morales, 2012 IL App. (1st) 110324-U.

Williamson involved a 2006 car accident in which the defendant Luis Morales rear-ended the plaintiff Patricia Williamson’s vehicle. And while Morales admitted to having caused the accident, there was some debate as to the extent of Williamson’s injuries. Williamson refused treatment by paramedics at the accident scene, but then did head to the Christ Medical Center Emergency Room just one hour later. And even though her x-rays did not show any fractures, she continued to experience pain and treatment with a chiropractor for four to five months following the accident.

When Williamson brought her personal injury claim against Morales he denied that the car accident was responsible for the extent of Williamson’s injuries and her lost time from work. And when Williamson’s attorney attempted to produce photographs from the accident scene as a way to demonstrate the severity and nature of the car accident, Morales’s attorney objected on the basis that they were not relevant and could not be introduced unless in conjunction with expert testimony. The court agreed and stipulated that the photographs could not be introduced unless the defendant first opened the door to their submission.

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