due diligence requirement in Illinois

2026There is no brightline test; courts must consider “all of the circumstances attendant upon entry of judgment *** including the conduct of the litigants and their attorneys.” Id. ¶ 33 The trial court may relax the due diligence requirement based on equitable considerations.

2025Because a section 2-1401 petition -6- 2025 IL App (2d) 240622-U is addressed to equitable powers, courts have not considered themselves strictly bound by precedent, and where justice and good conscience may require it a default judgment may be vacated even though the requirement of due diligence has not been satisfied.” Airoom, 114 Ill. 2d at 225 (citations omitted). ¶ 20 Nonetheless, the relaxation of the due diligence requirement entitling a party to a have a judgment vacated is justified only under “extraordinary circumstances.” Illinois Neurospine Institute, P.C. v. Carson, 2017 IL App (1s

2026However, “ ‘[r]elaxation of the due diligence requirement thereby entitling a defendant to a motion to vacate judgment is justified only under extraordinary circumstances’ ” In re Marriage of Harnack and Fanady, 2014 IL App (1st) 121424, ¶ 60 (quoting Ameritech Publishing of Illinois, Inc. v. Hadyeh, 362 Ill.

2024However, “[r]elaxation of the due diligence requirement thereby entitling a defendant to a motion to vacate a judgment is justified only under extraordinary 18 No. 1-23-1067 circumstances.” Ameritech Pub. of Illinois, Inc. v. Hadyeh, 362 Ill.

2019App. 3d 56, 60 (2005) (citing All-Steel Employees Credit Union v. Singh, 345 Ill.

2018App. 3d 56 , 60, 298 Ill.Dec. 302 , 839 N.E.2d 625 (2005) (citing All-Steel Employees Credit Union v. Singh , 345 Ill.

2024Courts have only relaxed this requirement “where it is necessary to prevent an unjust entry of default judgment or where there is unconscionable conduct by the opposing party that would require that the due diligence requirement be relaxed.” (Emphasis in original.) Gonzalez v. Profile Sanding Equipment, Inc., 333 Ill.

2022This rule is only invoked when “necessary to prevent an unjust entry of default judgment [citation], or where there is unconscionable conduct by the opposing party that would require that the due diligence requirement be relaxed [citation.].” (Emphasis in original.) Gonzalez v. Profile Sanding Equipment, Inc., 333 Ill.

2024App. 3d at 720 (observing that the plaintiff’s delay of providing notice of a default judgment more than 30 days after its entry before commencing citation proceedings, “although not enough in itself to render a default judgment unfair or unconscionable, has been held to cast a cloud on the proceedings because the standards for vacating a judgment within 30 days of its entry are less stringent than after that period has elapsed.”); compare Illinois Neurospine Institute, P.C., 2017 IL App (1st) 163386, ¶ 35 (no requisite circumstances to relax due diligence requirement where the defendant was a

2021App. 3d 680, 689 (2002)). “ ‘[I]n each case[,] there was evidence of fraudulent conduct by the plaintiff in procuring or concealing the judgment, or other unusual circumstances which made enforcement of the judgment unjust.’ ” McGinley, 2018 IL App (1st) 172976 , ¶ 32 (quoting European Tanspa, Inc. v. Shrader, 242 Ill.

2025Because a section 2-1401 petition -6- 2025 IL App (2d) 240622-U is addressed to equitable powers, courts have not considered themselves strictly bound by precedent, and where justice and good conscience may require it a default judgment may be vacated even though the requirement of due diligence has not been satisfied.” Airoom, 114 Ill. 2d at 225 (citations omitted). ¶ 20 Nonetheless, the relaxation of the due diligence requirement entitling a party to a have a judgment vacated is justified only under “extraordinary circumstances.” Illinois Neurospine Institute, P.C. v. Carson, 2017 IL App (1s

2025See Neurospine, 2017 IL App (1st) 163386, ¶ 31 (only reason that the defendant gave why the due diligence requirement should be relaxed was because he had a meritorious defense); McGinley, 2018 IL App (1st) 172976, ¶ 33 (the defendants’ reasons to excuse their lack of diligence in defending against the plaintiff’s action were not supported by the record).

2005While the trial court had found that plaintiff lacked diligence in pursuing his claim, we found that relaxation of the due diligence requirement was appropriate because we were presented with, “not a case of ordinary negligence, but an extraordinary situation where [an] attorney abruptly and unexplicably [sic] abandoned both his client and his law firm without attending court and without adequately documenting the files for which he retained responsibility.” Cohen, 227 Ill.

1997The appellate court reversed, finding that this was an appropriate case in which to relax the due diligence requirement since this was "not a case of ordinary negligence, but an extraordinary situation where a young attorney abruptly and inexplicably abandoned both his client and his law firm without attending court and without adequately documenting the files for which he retained responsibility.” Cohen, 227 Ill.

2017See also Elfman v. Evanston Bus Co., 27 Ill. 2d 609, 614 (1963)5 (finding that “[t]he mere fact that a defendant is defaulted does not give to the plaintiff a right or claim to the assessment of damages unrelated to liability and, under the circumstances, here, it would appear that such an advantage was knowingly and intentionally taken of both defendant and the trial court”). ¶ 33 In the case at bar, defendant attempts to paint his situation as similar to those in the cases in which the due diligence requirement has been relaxed by claiming that plaintiff “failed to even advise the trial cour

1992App. 3d 276 .) “While the failure to give notice of, or to execute upon, a default judgment within 30 days of its entry may be a factor to be considered in determining whether the plaintiff has acted so unfairly as to justify relaxation of the due-diligence standard (Elfman v. Evanston Bus Co. (1963), 27 Ill. 2d 609, 614 ; [citations]), additional circumstances must exist which would compel the conclusion that the party obtaining the ex parte judgment would gain an unfair, unjust, or unconscionable advantage if the judgment were not vacated ([citations]; Hunt v. General Improvements, Inc. (197

2021The court in Pirman noted that the current trend has “been to relax the due diligence standard where necessary to prevent the unjust entry of default judgments and to effect substantial justice.” Id. at 1003 .

2021The court in Pirman noted that the current trend has “been to relax the due diligence standard where necessary to prevent the unjust entry of default judgments and to effect substantial justice.” Id. at 1003 .

2025See Neurospine, 2017 IL App (1st) 163386, ¶ 31 (only reason that the defendant gave why the due diligence requirement should be relaxed was because he had a meritorious defense); McGinley, 2018 IL App (1st) 172976, ¶ 33 (the defendants’ reasons to excuse their lack of diligence in defending against the plaintiff’s action were not supported by the record).

2022Accordingly, “[b]ecause a section 2-1401 petition is addressed to equitable powers, courts have not considered themselves strictly bound by precedent, and where justice and good conscience may require it[,] a default judgment may be vacated even though the requirement of due diligence has not been satisfied.” (Emphasis added.) Id. 14 No. 1-21-0383 ¶ 52 “Relaxation of the due diligence requirement,” however is “justified only under extraordinary circumstances.” McGinley Partners, LLC, 2018 IL App (1st) 172976, ¶ 32 (emphasis added); see also Ameritech Publishing of Illinois, Inc. v. Hadyeh, 362

2023Id. (quoting Goncaves v. Saab, 184 Ill.App.3d 952, 958 (1st Dist. 1989)).

2019App. 3d 952, 956 , 538 N.E.2d 142, 145 (1989), petitioners argue the due diligence requirement should not be rigidly enforced because respondents’ respective sworn affidavits were fraudulent.

2020App. 3d at 1053 . ¶ 37 Even if we were to draw an analogy between Rule 103(b) and section 2-1401 cases, we find the reasoning in Marks compelling because most recently, this court held that “the equitable considerations upon which this court based its decisions in Cohen and Coleman are no longer relevant in resolving a section 2–1401 petition and those cases have been overruled by [People v.] Vincent [ 226 Ill. 2d 1 (2007)] to the extent this court held that a relaxation of the due diligence standard is appropriate where petitioner's counsel has engaged in unanticipated and inexplicable miscon

2015“Where the effect of the challenged action is generalized, speculative or de minimus, the complaining party will not have standing.” Id. - 15 - became inaccurate to continue to view the relief in strictly equitable terms” and “relief [under section 2-1401] is no longer purely discretionary.” Vincent, 226 Ill. 2d at 16 . ¶ 58 The Vincent holding notwithstanding, courts have created equitable exceptions to the due diligence requirement of section 2-1401.

2026Two principles should be considered: “first, that a petitioner seeking relief from judgment must do so expeditiously; and second, that the due- diligence inquiry is, in the end, case specific.” Id. at 101 .

2022There is no bright-line rule in assessing the reasonableness of the plaintiff’s excuse, and the court must consider “all of the circumstances attendant upon entry of the judgment ***, including the conduct of the litigants and their attorneys.” Id.; see also Paul v. Gerald Adelman & Associates, Ltd., 223 Ill. 2d 85, 99-100 (2006). ¶ 51 However, regardless of the existence of a “reasonable excuse,” courts may relax the due diligence requirement if there are mitigating circumstances.

2024As noted in Airoom, “failure to give notice of, or to execute upon, a default judgment within 30 days of its entry may be a factor to be considered in determining whether the plaintiff has acted so unfairly as to justify relaxation of the due-diligence standard[.].” (Emphasis in original.) 114 Ill. 2d at 228 ; see also Bonanza International, Inc., 128 Ill.

1986While the failure to give notice of, or to execute upon, a default judgment within 30 days of its entry may be a factor to be considered in determining whether the plaintiff has acted so unfairly as to justify relaxation of the due-diligence standard (Elfman v. Evanston Bus Co. (1963), 27 Ill. 2d 609, 614 ; Bonanza International, Inc. v. Mar-Fil, Inc. (1984), 128 Ill.

2014App. 3d 443, 458 (2000) (“We note that the due diligence requirement [of section 2-1401] may be relaxed if actual fraud or unconscionable conduct played a part in the trial court’s judgment.”); American Ambassador Casualty Co. v. Jackson, 295 Ill.

2013App. 3d 443, 458 (2000) ("We note that the due diligence requirement [of section 2-1401] may be relaxed if actual fraud or unconscionable conduct played a part in the trial court's judgment."); American Ambassador Casualty Co. v. Jackson, 295 Ill.

1999“The trend in Illinois is to relax the due diligence standard where necessary to prevent the unjust entry of default judgments and to effect substantial justice.” Enclosures, Inc. v. American Pay Telephone Corp., 287 Ill.

1999"The trend in Illinois is to relax the due diligence standard where necessary to prevent the unjust entry of default judgments and to effect substantial justice." Enclosures, Inc. v. American Pay Telephone Corp. , 287 Ill.

1997App. 3d 128 , 578 N.E.2d 174 (1991) (justice and fairness required that the judgment be vacated, even though the due diligence standard had not been met, due largely to the lack of cooperation between plaintiff's original and substitute counsel).

1997App. 3d 128 , 578 N.E.2d 174 (1991) (justice and fairness required that the judgment be vacated, even though the due diligence standard had not been met, due largely to the lack of cooperation between plaintiff’s original and substitute counsel).

2022For instance, “the due diligence requirement may be waived if the result is unfair, unjust or unconscionable” (In re Marriage of Halas, 173 Ill.

1992App. 3d 218 , 527 N.E.2d 474 (silence alone is not fraudulent concealment and the issue of fraudulent concealment is necessarily analyzed in the context of the due diligence requirement).) The parties’ short-lived affair was casual and Michalik married another man within months of the baby’s birth.

2021This court found that where the circuit court appointed counsel solely -3- in an exercise of its discretion, counsel had failed to provide adequate assistance under either the reasonable assistance standard applicable to postconviction proceedings or the due diligence standard set forth by the supreme court in Tedder v. Fairman, 92 Ill. 2d 216, 227 (1982).

2019This court found that where the circuit court appointed counsel solely in an exercise of its discretion, counsel had failed to provide adequate assistance under either the reasonable assistance standard applicable to postconviction proceedings or the due diligence standard set forth by the supreme court in Tedder v. Fairman, 92 Ill. 2d 216, 227 (1982).

2020Lucas Co. v. Peoples Gas Light & Coke Co., 2011 IL App (1st) 102955, ¶ 24 (this court declined to relax the due diligence standard or depart from the general rule that a party is bound by the mistakes and negligence of its counsel). ¶ 38 In this case, it is unfortunate that plaintiff’s counsel contributed to the delay in effectuating service on defendants.

2014Ultimately, like the case at bar, the court in Lucas heard oral arguments on the section 2-1401 petition and response and denied plaintiffs’ section 2-1401 petition based on the pleadings determining that, after Vincent, it could no longer relax the due diligence requirement when the petitioner’s previous “counsel ha[d] engaged in unanticipated and inexplicable misconduct.” Lucas, 2011 IL App (1st) 102955, at ¶ 24 . ¶ 34 The facts in the case at bar are similar to, but even more extreme than, those present in Lucas with respect to the conduct of counsel’s clients in the trial court.

2026People v. Ayala, 2022 IL App (1st) 192484, ¶ 134 ; see also People v. Molstad, 101 Ill. 2d 128, 134 (1984) (new evidence “must have been discovered since the trial and be of such character that it could not have been discovered prior to trial by the exercise of due diligence”).

2022See People v. Ayala, 2022 IL App (1st) 192484, ¶ 134 (in the context of a newly discovered evidence analysis for an actual innocence claim, the due diligence requirement “applies to the diligence shown before trial”). ¶ 41 Next, the State concedes that the affidavits of Garvin and Olave are material and non- cumulative, but contends Ortiz’s affidavit is immaterial because he did not witness the shooting itself.

2026However, “ ‘[r]elaxation of the due diligence requirement thereby entitling a defendant to a motion to vacate judgment is justified only under extraordinary circumstances’ ” In re Marriage of Harnack and Fanady, 2014 IL App (1st) 121424, ¶ 60 (quoting Ameritech Publishing of Illinois, Inc. v. Hadyeh, 362 Ill.

2022App. 3d 218, 224 (1988)) or “when it is clear from all the circumstances that a party has procured an unconscionable advantage through the extraordinary use of court processes or where some fraud or fundamental -5- 2022 IL App (2d) 210527-U unfairness has been shown” (internal quotation marks omitted) (In re Marriage of Harnack, 2014 IL App (1st) 121424, ¶ 60 ). ¶ 16 Respondent contends on appeal that the default judgment awarding 100% of the marital property to petitioner and ordering him to pay $27,000 monthly in maintenance and child support is unconscionable.

2022The circuit court’s reading of Goldsmith as barring the receipt of relief under section 2-1401 of the Code—even when the petition presents a fraudulent concealment claim— - 13 - 2022 IL App (2d) 200160 overlooks the maxim that “[d]ue diligence is judged by the reasonableness of a petitioner’s conduct under the circumstances.” Goldsmith, 2011 IL App (1st) 093448, ¶ 49 (citing Paul v. Gerald Adelman & Associates, Ltd., 223 Ill. 2d 85, 99-101 (2006)). ¶ 29 Unlike in Goldsmith, petitioner’s section 2-1401 petition explicitly alleged fraudulent concealment of the condo.

2020Here, unlike in Roepenack and Johnson, petitioner was well represented by a renowned and respected family law firm, she sought and obtained discovery, she relied on an independent forensic expert, and she raised her concerns about respondent’s income prejudgment, but she voluntarily proved up and settled instead of pursuing her suspicions. ¶ 44 We find this case more closely resembles Goldsmith, 2011 IL App (1st) 093448 , where the Appellate Court, First District, held that a petitioner’s reliance on the opposing party’s representations, in lieu of formal discovery, does not satisfy due dilige