Below are Ken’s comments on a recent case that he ran across and there are great cites to other cases indicating that service on a disabled or alleged disabled is very, very strict. I did not know before this you cannot serve a disabled by publication for anything.
JoAnne
The reason I sent you this case is so in your responses to the IARDC you can lay emphasis to the fact that the criterion of Article 11a of the Probate Act are not just suggestions but they are serious due process matters. The denial of senior citizens rights, and his/her deprivation of his/her liberty and property rights under color of statute is a criminal act (elder cleansing) that has to be addressed, not covered up by shooting the messenger.
Let us do an analysis of the claim by Schmiedel that a ‘stamp’ with an illegible signature is evidence that Mary Sykes was served with the process required by 755 ILCS 5/11a – 10.
The first clue that the statement is bogus and another distortion by the miscreants that will need a full scale cover-up is that Schmiedel’s letter is laced with threats. This is their pattern. (Red Flag 1)
The Sheriff’s record is that there was no service on Mary as she never appeared. The procedure that is followed for bench service is:
1) the proper documents are prepared. 11a – 10 requires a summons, a copy of the petition, and a clear and bold statement to the alleged incompetent of her rights.
2) The petitioner takes this document down to the 7th floor of the Daley Center and after paying the fee, he/she takes the document to the window where a Sheriff’s deputy (actually it is a counter) will hand the documents to the alleged disabled person. If the person to be served appears (which in this situation Mary did not) the deputy usually explains what he/she is serving and if there are cautions he/she reads them.
3) After the disabled person is served, the deputy fills out a ‘return of service’ and that return of service specifies under oath what has been served. It will detail – just like the proof of service that we file – what was served.
Bench service like publication are variations of the usual procedure of filing a petition (or complaint) and having the sheriff going out to the home. In the Sykes case Schmiedel’s client was living in DuPage and the Sheriff was sent to serve Summons in Cook County. (Red flag 2)
There is no Sheriff’s return! what there is is a rubber stamp. (Red Flag 3). This rubber stamp does not specify that Mary was served with process (i.e. the documents required by 11a – 10) . Maybe she was served (as Gloria was) with the Pizza flyer! (Red Flag 4) The document that Schmiedel attached to his letter does not comport to the requirements of the Statute 755 ILCS 5/11a – 10. (Red Flag 5)
The case disallowing publication points out how form does not trump substance in due process matters. The fact that the documents specifically required by the statute in the form required thereby is not demonstrated.
Unless, there is a ‘cover up’ or a bias that must be addressed, MARY SYKES WAS NEVER SERVED WITH PROCESS AS REQUIRED BY 755 ILCS 5/11a – 10. For almost four years a senior citizen has been deprived of her civil rights (liberty and property) and her estate ravaged by the fascade of court orders from a Court lacking jurisdiction.
Red Flag 6 is the refusal and resistance of Schmiedel, Stern, Farenga and those acting in concert with them to an HONEST complete and comprehensive investigation. If they have nothing to hide, they should welcome the investigation. If they are right they would be exonerated of ‘elder cleansing.’
Ken Ditkowsky
http://www.ditkowskylawoffice.com/
From O’Halloran v. Luce, 2013 IL App (1st) 113735
“(c) The guardian of the estate of a ward shall appear for and represent the ward in all legal proceedings unless [18] another person is appointed for that purpose as guardian or next friend. This does not impair the power of any court to appoint a guardian ad litem or next friend to defend the interests of the ward in that court, or to appoint or allow any person as the next friend of a ward to commence, prosecute or defend any proceeding in his behalf.” 755 ILCS 5/11a-18(c) (West 2010)
“(a) Prior to the filing of any other pleading or motion other than a motion for an extension of time to answer or otherwise appear, a party [19] may object to the trial court’s jurisdiction over the party’s person, *** on the ground of insufficiency of process or insufficiency of service of process *** by filing a motion to quash service of process. Such a motion may be made singly or included with others in a combined motion ***.
(a-5) If the objecting party files a responsive pleading or motion (other than a motion for an extension of time to answer or otherwise appear) prior to the filing of a motion in compliance with subsection (a), the party waives all objections to the court’s jurisdiction over the party’s person.” (Emphases added.) 735 ILCS 5/2-301(a)(a-5) (West 2010).
“In Illinois, personal jurisdiction may be obtained by service of process as provided by statute.” In re Marriage of Schmitt, 321 Ill. App. 3d 360, 367, 747 N.E.2d 524, 530, 254 Ill. Dec. 484 (2001). Section 2-203(a)(1) and (a)(2) of the Code (735 ILCS 5/2-203(a)(1), (2) (West 2010)) provide for service of process on individuals by leaving a copy of the summons with the defendant personally, or by leaving a copy at the defendant’s usual place of abode with a family member or person residing there over the age of 13. Schmitt, 321 Ill. Section 2-203.1 of the Code states that if personal service under sections 2-203(a)(1) and (a)(2) is impractical, the plaintiff may file a motion requesting that the court authorize another method of service to be made in any manner consistent with due process. 735 ILCS 5/2-203.1 (West 2010). “‘Notice is a fundamental requirement of due [25] process.'” Hwang v. Illinois Department of Public Aid, 333 Ill. App. 3d 698, 707, 776 N.E.2d 801, 809, 267 Ill. Dec. 429 (2002) (quoting East St. Louis Federation of Teachers, Local 1220 v. East St. Louis School District No. 189 Financial, 178 Ill. 2d 399, 420, 687 N.E.2d 1050, 1062, 227 Ill. Dec. 568 (1997)). In order to satisfy due process, “notice must be reasonably calculated ‘to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.'” Hwang, 333 Ill. App. 3d at 707, 776 N.E.2d at 809 (quoting Stratton v. Wenona Community Unit District No. 1, 133 Ill. 2d 413, 432, 551 N.E.2d 640, 648, 141 Ill. Dec. 453 (1990)).
[P33] We note that in support of his argument, the Public Guardian cited numerous cases decided by the United States Supreme Court, and one Illinois Appellate Court case. See Mennonite Board of Missions v. Adams, 462 U.S. 791, 800, 103 S. Ct. 2706, 77 L. Ed. 2d 180 (1983) (holding that statutory provision regarding tax sale that required only notice by publication was invalid because notice by mail or other means to ensure actual notice is a minimum constitutional precondition to a proceeding that will affect the property interests of a party); Covey v. Town of Somers, 351 U.S. 141, 146, 76 S. Ct. 724, 100 L. Ed. 1021 (1956) (holding that [26] compliance with statutory notice requirements for a tax lien foreclosure violated due process because it did not afford notice to an incompetent person who was not protected by a guardian); Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 319-20, 70 S. Ct. 652, 94 L. Ed. 865 (1950) (holding that notice by publication was inadequate to inform known beneficiaries of a common trust fund of the proposed judicial settlement of certain accounts by the trustee); In the Matter of the Application of the County Collector for Judgment, 188 Ill. App. 3d 1068, 1077, 545 N.E.2d 145, 150, 136 Ill. Dec. 621 (1989) (holding that service on an incompetent person in compliance with statutory requirements regarding a tax sale violated due process because the incompetent person was without a guardian and could not understand that she was being served). However, none of the cases cited by the Public Guardian are analogous or applicable to the case at bar. Thus, we cannot look to these cases for guidance.
The parties have not cited any cases and this court is not aware of an Illinois case that contains facts, circumstances and ultimate resolution which is analogous to the case at bar. However, HN7
it is clear that sections 2-203(a) and 2-203.1 of the Code and the principles of due process are applicable to the instant case. As previously discussed, the notice requirement for due process is: “notice must be reasonably calculated ‘to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.'” Hwang, 333 Ill. App. 3d at 707, 776 N.E.2d at 809 (quoting Stratton, 133 Ill. 2d at 432, 551 N.E.2d at 648). [28] O’Halloran is correct in stating that section 2-203.1 of the Code allows for service by any manner consistent with due process when personal service is not possible. However, under the specific and unique circumstances of this case, service by publication was not consistent with due process. Therefore, the trial court erred in allowing service by publication.
it is clear that sections 2-203(a) and 2-203.1 of the Code and the principles of due process are applicable to the instant case. As previously discussed, the notice requirement for due process is: “notice must be reasonably calculated ‘to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.'” Hwang, 333 Ill. App. 3d at 707, 776 N.E.2d at 809 (quoting Stratton, 133 Ill. 2d at 432, 551 N.E.2d at 648). [28] O’Halloran is correct in stating that section 2-203.1 of the Code allows for service by any manner consistent with due process when personal service is not possible. However, under the specific and unique circumstances of this case, service by publication was not consistent with due process. Therefore, the trial court erred in allowing service by publication. The parties have not cited any cases and this court is not aware of an Illinois case that contains facts, circumstances and ultimate resolution which is analogous to the case at bar. However, HN7 it is clear that sections 2-203(a) and 2-203.1 of the Code and the principles of due process are applicable to the instant case. As previously discussed, the notice requirement for due process is: “notice must be reasonably calculated ‘to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.'” Hwang, 333 Ill. App. 3d at 707, 776 N.E.2d at 809 (quoting Stratton, 133 Ill. 2d at 432, 551 N.E.2d at 648). [28] O’Halloran is correct in stating that section 2-203.1 of the Code allows for service by any manner consistent with due process when personal service is not possible. However, under the specific and unique circumstances of this case, service by publication was not consistent with due process. Therefore, the trial court erred in allowing service by publication.
it is clear that sections 2-203(a) and 2-203.1 of the Code and the principles of due process are applicable to the instant case. As previously discussed, the notice requirement for due process is: “notice must be reasonably calculated ‘to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.'” Hwang, 333 Ill. App. 3d at 707, 776 N.E.2d at 809 (quoting Stratton, 133 Ill. 2d at 432, 551 N.E.2d at 648). [28] O’Halloran is correct in stating that section 2-203.1 of the Code allows for service by any manner consistent with due process when personal service is not possible. However, under the specific and unique circumstances of this case, service by publication was not consistent with due process. Therefore, the trial court erred in allowing service by publication.O’Halloran claims that Luce has been living as a homeless person since 2004. Luce’s whereabouts were unknown at the time when the notice of suit appeared in local newspapers. After the notice of suit was published, an investigator who was familiar with Luce attempted to locate him at the soup kitchens that Luce previously frequented. Volunteers and patrons at the soup kitchens stated that they had not seen Luce for years. There is no evidence to suggest that Luce was even living in the area where the newspapers published the notice of suit. Moreover, if Luce had somehow accessed the newspapers containing the notice of suit, there is no evidence that he would have understood the [29] notice of suit if he saw it. Luce had long since been adjudicated a disabled person and the Public Guardian had been appointed to manage all of his assets valued at over $1,000. Clearly, the reason for the adjudication of disability was because Luce was incapable of managing his affairs. Under these circumstances even if he had seen the published notice, he likely would not have understood what it meant. We acknowledge the difficulties O’Halloran experienced in attempting to locate Luce. However, those difficulties do not change the fact that service by publication cannot be reasonably calculated to apprise an individual in Luce’s circumstances of the legal ramifications of a lawsuit. Therefore, we answer the certified question in the negative and hold that service by publication in this case did not satisfy due process.
MaryGSykes.com 