Understanding Section-1401 Petition
A section 2-1401 petition is a remedy from the Rules of Civil Procedure that is also applicable in Illinois criminal law. Section 2-1401 petitions are also known as a petition for relief from judgment. The applicable law related to Section 2-1401 petitions is found at 735 ILCS 5/2-1401. The purpose of a Section 2-1401 petition is challenge final orders, judgments, and decrees by presenting to the trial court’s attention matters of fact that were unknown at the time the court made the judgment. However, petitions for relief from judgment are not designed to provide a general review of all trial errors or as a substitute for direct criminal appeal.
Section 2-1401 Petition when default judgement is 30 days old
Default judgments that have been in effect for more than 30 days are final. The only method available to vacate a final default judgment that is beyond 30 days is by filing a 2-1401 petition. A 2-1401 petition is found in the Code of Civil Procedure at Section 2-1401, hence the name. Section 2–1401 allows for relief from final judgments more than 30 days after their entry, provided the petition proves by a preponderance of evidence certain elements. The 2-1401 must be supported by affidavit or other appropriate showing as to matters not contained in the appellate record.gainst litigants. In criminal cases defendants may miss court dates or in civil cases, a litigant may miss a filing deadline or fail to answer a complaint resulting in a default judgment being entered against him or her.
To obtain relief under section 2-1401, the petitioner must affirmatively set forth specific factual allegations supporting each of the following elements:
The Section 2-1401 petition must allege a meritorious defense or claim, due diligence in presenting the defense or claim, and due diligence in filing the petition. To succeed in a petition for relief from judgment the petitioner must establish that he or she was prejudiced.
What is the timeline to file Section-1401 Petition?
Strict timelines apply to when a 2-1401 petition must be filed. Generally, a 2-1401 petition must be filed within 2 years from the date that the trial court entered the default judgment. However, exceptions exist to the 2-year deadline. For example, void judgments can be vacated at any time by any party.
Individuals that are under a legal disability must file a 2—1401 petition within 2-years from the time that they are not suffering from the legal disability. Additionally, any time when the ground for relief was fraudulently concealed does not count against the 2-year period.
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