Written by attorney Mara Ann Baltabols

Vacating a Default Judgment based on Improper Service

If a judgment was entered against you in a case where you were not properly served, you may be able to vacate a default judgment based upon failure of service. The potential to vacate a judgment for improper service is most likely in a case where a special process server falsely states in an affidavit that he effectuated personal or substitute service on you a.k.a. he personally served you or a member of your household over the age of thirteen. In which case, you may challenge service via a motion to quash with an attached affidavit saying that you were never served. If service is quashed a default judgment may be vacated base upon those grounds. Relevant case law is below: If a person is not properly served he or she never submitted to the Court's jurisdiction and the judgment should be vacated. Lack of proper service renders all prior orders and judgments void. See C.T.A.S.S. & U. Federal Credit Union v. Johnson, 383 Ill. App. 3d 909 (1st Dist. 2008). Judgments entered by a court that lacks personal jurisdiction over a defendant are void under Illinois Law. C.T.A.S.S. & U. Federal Credit Union, 383 Ill. App.3d. at 909. Where personal jurisdiction is based on constructive service, strict compliance with every requirement of the statute must be shown. Clinton Co. v. Eggleston, 78 Ill. App.3d 552, 555 (1st Dist 1979). Illinois law has long held that a defendant submitting to a court's jurisdiction does so prospectively and the filing of an appearance does not validate orders retrospectively. In Re Marriage of Verdung, 126 Ill. 2d 542, 547 (Ill. 1989) (citing J.C. Penny Co., 144 Ill. App. 3d. 644, 647 (1st Dist. 1983)). It is in your best interest to hire an attorney to file a motion to vacate a default judgment based upon failure of service.

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The information in this legal guide is not intended as legal advice nor do I intend to create an attorney-client relationship with any reader simply by posting this legal guide or contributing as a member of AVVO.

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