IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT - PROBATE DIVISION

ESTATE OF

JOSEPH L. ZIARNIK

A Disabled Person

Advocacy Guardianship Services, NFP, as Limited Guardian of the Person of Joseph L. Ziarnik and individually, Josh Mitzen as Director, Advocacy Guardianship Services NFP and individually; Devon Bank, as agent for Joseph L. Ziarnik under Power of Attorney for Property dated April 1,2008, as Trustee of the Joseph Ziarnik Trust dated April 1, 2008 and individually, and Janna Dutton, as attorney for the Estate of Joseph Ziarnik and individually,

Plaintiffs,

No. 08 P 8140

PLAINTIFFS' RESPONSE TO MOTION TO VACATE DEFAULT JUDGMENT

Plaintiffs, Advocacy Guardianship Services, NFP, as Limited Guardian of the Person of

Joseph L. Ziarnik and individually, Josh Mitzen as Director, Advocacy Guardianship Services NFP

and individually; Devon Bank, as agent for Joseph L. Ziarnik under Power of Attorney for Property

dated April 1, 2008, as Trustee of the Joseph Ziarnik Trust dated April 1, 2008 and individually, and

Janna Dutton, as attorney for the Estate of Joseph Ziarnik and individually, by and through their

attorneys, JOHNSON & BELL, LTD., hereby submit the following as their response to Defendant's

motion to vacate default judgment.

V.

Tammi Goldman,

Defendant.

1. Defendant has filed her motion to vacate default judgment which is fraught with

inaccuracies and is legally insufficient to obtain the relief she seeks.

2. As an initial matter, Defendant claims that the default judgment she seeks to vacate

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was entered on April 29, 2014. See Motion, at 1. This is simply not true. The default judgment

against Defendant was entered on January 28, 2014. See 1/28/2014 Order, Ex. A.

3. The importance of the default judgment being entered on January 28, 2014 and not

April 29, 2014 is obvious. Defendant's motion to vacate is not properly brought under 735 ILCS

5/2-1301 as she seeks. Rather, Defendant's motion must properly be brought under 735 ILCS 5/2-

1401.

4. Defendant's motion thoroughly fails to satisfy the requirements for a successful

motion to vacate under 735 ILCS 5/2-1401.

5. "A determination regarding whether a section 2—1401 petition to vacate a default

judgment should be granted depends on whether the allegations in the petition have adequately

established the existence of: (1) a meritorious defense; (2) due diligence in presenting the defense in

the original action; and (3) due diligence in filing the section 2—1401 petition." Domingo v.

Guarino, 402 Ill.App.3d 690, 699, 932 N.E.2d 50, 59 (2 n d Dist. 2010). Further, "[A] section 2-1401

petition must be supported by affidavit or other showing of matters not contained in the record." Id.

(emphasis added).

6. Defendant's motion consists of one (1) page and seven (7) paragraphs. It does not

contain any supporting affidavit or other materials as required under section 2-1401. See Motion

generally. It is legally insufficient as a result.

7. Moreover, Defendant cannot satisfy the requirements of section 2-1401 under any

circumstances. This case was brought by Plaintiffs to remedy the defamatory and utterly baseless

statements posted by Defendant on her blog regarding Plaintiffs. These statements impute

dishonest conduct onto Plaintiffs. After more than two years of litigation, Defendant has provided

absolutely no basis for her statements. The reason is simple - no basis in fact exists for them.

Defendant has no meritorious defense to Plaintiff's claims as a result.

8. Nor has Defendant demonstrated due diligence throughout this case. Up until March

28, 2014, Defendant was represented by counsel in this case. See March 28, 2014 Withdrawal

Order, Ex. B. Yet, counsel for Defendant repeatedly failed to appear before this Court to defend

against Plaintiffs' claims. After each court date, counsel for Plaintiffs sent a copy of the Court's

orders to counsel for Defendant. These included inter alia:

• January 14, 2013 Order: "No appearance by Defendant." See 1/14/2013 Order, Ex. C;

• September 25, 2013 Order re-setting clerk's status to September 30, 2013 to allow appearance by counsel for Defendant. See 9/25/2013 Order, Ex. D;

• September 30, 2013 Order setting November 13, 2013 hearing date. See 9/30/2013 Order, Ex. E;

• November 13, 2013 Order re-setting hearing date to December 9, 2013 to allow Defendant time to file a reply brief (which she never did). See 11/13/2013 Order, Ex. F;

• December 9, 2013 Order denying Defendant's motion to dismiss, granting Defendant until December 23, 2013 to answer the complaint (which she did not do) and noting that:

"Counsel for Defendant failed to appear for hearing and failed to file a reply as previously allowed by the Court."

See 12/9/2013 Order, Ex. G;

• January 28, 2014 Order entering default judgment and once again noting that Defendant failed to file an answer and "failed to appear" in court. See 1/28/2014 Order, Ex. A.

9. Defendant's actions in this litigation have been the antithesis of "due diligence."

Defendant has repeatedly failed to show up at court and failed to take any action whatsoever in her

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defense of this case. Defendant does not - and cannot - satisfy the due diligence requirements of

section 2-1401.

10. Defendant alleges in her motion that she herself was not aware of the default

judgment until April 15, 2014 (contradicting her earlier statement that the default judgment was

Joseph R. Marconi Victor J. Pioli JOHNSON & BELL, LTD.

33 West Monroe Street Suite 2700 Chicago, Illinois 60603 312-372-0770 312-372-9818 (fax)

Attorneys for Plaintiffs, Devon Bank, Advocacy Guardianship Services NFP, Josh Mitzen, and Janna Dutton

Respectfully submitted,

DEVON BANK, ADVOCACY GUARDIANSHIP SERVICES NFP, JOSH MITZEN, and JANNA DUTTON

One of Their Attorneys

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entered on April 29, 2014). See Motion, at 3. However, Defendant is not free to simply discard

the actions or inaction of her attorney in this matter. She is bound by her prior counsel's conduct.

Bartolini v. Popovitz, 108 Ill.App.2d 89, 94, 246 N.E.2d 834, 836-37 (1 s t Dist. 1969) (denying

motion to vacate and noting that "a party is bound by the acts, or inaction, of his attorney").

WHEREFORE, Plaintiffs, DEVON BANK, ADVOCACY GUARDIANSHIP SERVICES

NFP, JOSH MITZEN, and JANNA DUTTON, respectfully request that this Honorable Court enter

an order denying Defendant's motion to vacate default judgment and for such other relief as the

Court deems just and proper.

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, CHANCERY DIVISION

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, CHANCERY DIVISION

v .

Defendant(s).

MOTION HEARING ORDER