IL - Motion to Vacate vs. Petition for Relief (Updated)
What is the name of your state? ILLINOIS
---Update - Idea:---
What about a lawsuit aimed at the dealer? I would claim that the dealer knowingly and intentionally sold me the vehicle without appraising me of the recalls that have been issued for that particular vehicle.
Is there some specific statute that (at a federal or state level) might require the dealer to explain the various recall issues and to appraise me of them? If so, that would be a leg I could stand on.
Background:
Today:
I'd like to file a "Petition for Relief From Default Judgement". This is allowed within 2 years of the granting of the judgement.
(1) Showing they didn't serve me per ILCS with in-person service. They mailed the summons/complaint. My affirmative defense would be that I didn't have time to respond properly. My response would have included a desire to auction off the vehicle to satisfy part of the loan in agreement for an amount that I would owe them in payments. Something to this effect. I would argue that I also would have petitioned the court to discover why they refused to accept my voluntary surrender (someone already replied that they are not obligated to do so). But when I'm in possession of a vehicle that I don't own, and am being found to be owing another party for it, my desire is to have the vehicle placed for sale so that I can at least provide a portion of the debt back to the credit grantor. Make any sense?
(2) I notice that I can file a Petition for Relief of Default Judgment. Although this is not the same as a vacation of judgment (because, per ILCS, it's not allowed to be motioned after 30 days from default judgment), I know that it affords relief to a degree.
My question is: to what degree? For what purpose would someone petition the court in this manner?
Finally:
(1) What impact, if any, does this have on my Chapter 13 BK?
(2) Could I ask the court to withdraw them as a creditor based on the interim relief? Could they be again submitted back after re-proving and winning their claim?
(3) Would I have to again defend myself?
(4) Can I drag this out in court to substantially delay this until the SOL expires on a written contract (which I believe are Car Sales) which would be 4 years from date of delinquincy that lead to the current charge-off/loss. In other words, August 2002 - August 2006 = 4 years. Should I wait until September of 2006 to begin this filing?
(5) If barred from action under #4, could they not be claimed as a creditor on Bk13? Could I then ask the court to reclaim their payments? Would I have to sue them for the payments back?
(6) Can I sue them for storage fees (again, I ask for another opinion on this) because I've lovingly housed their POS car for the past 2 years?
Thanks in advance for any advice.
What is the name of your state? ILLINOIS
---Update - Idea:---
What about a lawsuit aimed at the dealer? I would claim that the dealer knowingly and intentionally sold me the vehicle without appraising me of the recalls that have been issued for that particular vehicle.
Is there some specific statute that (at a federal or state level) might require the dealer to explain the various recall issues and to appraise me of them? If so, that would be a leg I could stand on.
Background:
August, 2003:
In 2003 I stopped paying on a heap of junk lemon vehicle (used). I should have enacted lemon law protection, but I didn't (and it doesn't apply to used vehicles). Another story, another case, I hope.
April 12, 2004:
The plaintiff's attorney won a default judgement against me (I didn't fight it, stupid me) for ~$2,500.
December 24, 2004:
I file Chapter 13 protection. They are a listed creditor.
In 2003 I stopped paying on a heap of junk lemon vehicle (used). I should have enacted lemon law protection, but I didn't (and it doesn't apply to used vehicles). Another story, another case, I hope.
April 12, 2004:
The plaintiff's attorney won a default judgement against me (I didn't fight it, stupid me) for ~$2,500.
December 24, 2004:
I file Chapter 13 protection. They are a listed creditor.
Today:
I'd like to file a "Petition for Relief From Default Judgement". This is allowed within 2 years of the granting of the judgement.
(1) Showing they didn't serve me per ILCS with in-person service. They mailed the summons/complaint. My affirmative defense would be that I didn't have time to respond properly. My response would have included a desire to auction off the vehicle to satisfy part of the loan in agreement for an amount that I would owe them in payments. Something to this effect. I would argue that I also would have petitioned the court to discover why they refused to accept my voluntary surrender (someone already replied that they are not obligated to do so). But when I'm in possession of a vehicle that I don't own, and am being found to be owing another party for it, my desire is to have the vehicle placed for sale so that I can at least provide a portion of the debt back to the credit grantor. Make any sense?
(2) I notice that I can file a Petition for Relief of Default Judgment. Although this is not the same as a vacation of judgment (because, per ILCS, it's not allowed to be motioned after 30 days from default judgment), I know that it affords relief to a degree.
My question is: to what degree? For what purpose would someone petition the court in this manner?
Finally:
(1) What impact, if any, does this have on my Chapter 13 BK?
(2) Could I ask the court to withdraw them as a creditor based on the interim relief? Could they be again submitted back after re-proving and winning their claim?
(3) Would I have to again defend myself?
(4) Can I drag this out in court to substantially delay this until the SOL expires on a written contract (which I believe are Car Sales) which would be 4 years from date of delinquincy that lead to the current charge-off/loss. In other words, August 2002 - August 2006 = 4 years. Should I wait until September of 2006 to begin this filing?
(5) If barred from action under #4, could they not be claimed as a creditor on Bk13? Could I then ask the court to reclaim their payments? Would I have to sue them for the payments back?
(6) Can I sue them for storage fees (again, I ask for another opinion on this) because I've lovingly housed their POS car for the past 2 years?
Thanks in advance for any advice.
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