Page 17 - John Hundley 2014

Litigation Law Roundup

Sharp Thinking

No. 115 Perspectives on Developments in the Law from The Sharp Law Firm, P.C. May 2014

Response Deadline Is 32 Days For Mailed Requests to Admit

When requests to admit are served by mail, the four-day effectiveness provision of Illinois Supreme
Court Rule 12(c) must be taken into account in determining when responses must be served to avoid
binding admission of those requests, a panel in the Appellate Court’s First District has held.

Ruling in Armagan v. Pesha, 2014 IL App (1st) 121840, the panel effectively said that responses to
mailed request are due 32 days after the requests are mailed, as Rule 12(c) adds four days to the 28-day
period of Rule 216(c). See generally Sharp Thinking No. 77 (Nov. 2012).

However, responses deposited in the U.S. Mail within that 32-day period are timely – Rule 12(c) does
not require mailing four days before the Rule 216 deadline, the court said.

“Mailbox Rule” Does Not Apply to TRO Appeals

The familiar “mailbox rule” does not apply when a party attempts to appeal the granting of a
temporary restraining order under Illinois Supreme Court Rule 307, a panel in the Appellate Court’s
Second District has held. Moreover, it held that the two-day filing requirement of that rule is jurisdictional,
requiring dismissal of the appeal where they are not obeyed.

In Nizamuddin v. Community Education in Excellence, 2013 IL App (2d) 131230, the putative
appellant filed its notice of appeal in the Circuit Court and then mailed its papers to the Appellate Court.
They were not received within the two-day period set forth in Rule 307.

Noting Rule 307 requires filing of the notice of a TRO appeal in the Appellate Court, the panel refused
to credit the filing in the Circuit Court. Moreover, it said that “[g]iven the highly expedited nature of TRO
appeals brought under Rule 307(d), the ‘mailbox rule’ contained in Illinois Supreme Court Rule 373 . . .
does not apply.”

Courts Have “Limited Discretion” In Attachment Cases

A lender was entitled to prejudgment attachment when it showed that a borrower in fact had breached
a mortgage’s anti-assignment provision when he certified in loan modification documents that he had not,
a panel in the Appellate Court’s Third District has held.

In U.S. Bank N.A. v. Rose, 2014 IL App (3d) 130356, the trial court had declined to grant prejudgment
attachment but the appellate panel reversed and ordered the writ granted. It said trial courts have only
“limited discretion in [their] decision whether to grant attachment” when one of the statutory causes has
been shown.

In Rose, the defendant, in violation of an anti-assignment provision in a mortgage, transferred
property to a limited liability company which in turn transferred it to a Cook Islands trust. In later seeking a
mortgage modification, he averred that he had not breached any covenants in the mortgage. Noting that
“[a]ctual fraud is necessary to establish cause” under 735 ILCS 5/4-101(9), the panel found that test met.

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Sharp Thinking is an occasional newsletter of The Sharp Law Firm, P.C. addressing developments in the law which may be of interest. Nothing contained in Sharp
Thinking shall be construed to create an attorney-client relation where none previously has existed, nor with respect to any particular matter. The perspectives herein
constitute educational material on general legal topics and are not legal advice applicable to any particular situation. To establish an attorney-client relation or to obtain legal
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