IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS

COUNTY DEPARTMENT - PROBATE DIVISION

ESTATE OF
JOSEPH L. ZIARNIK

No. 08 P 8140

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,
V.
Tammi Goldman,
Defendant.
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.,

motion to vacate default judgment.

hereby submit the following as their response to Defendant's

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

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 5/21401.
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 21401 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 21401 petition." Domingo v.
nd

Guarino, 402 Ill.App.3d 690, 699, 932 N.E.2d 50, 59 (2 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.
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:

See

"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;

9.

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.
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

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
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.
st

Bartolini v. Popovitz, 108 Ill.App.2d 89, 94, 246 N.E.2d 834, 836-37 ( 1 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.
Respectfully submitted,
DEVON BANK, ADVOCACY
GUARDIANSHIP SERVICES NFP,
JOSH MITZEN, and JANNA DUTTON

One of Their Attorneys

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

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