Setting aside an Illinois default: 30 days under 2-1301, two years under 2-1401

Illinois draws a hard line at day 30. Before it, vacating a judgment is a motion decided on what is "reasonable." After it, relief requires a petition that functions like a small lawsuit, supported by affidavits, subject to a two-year limit.

Inside 30 days — 735 ILCS 5/2-1301(e)

The court may in its discretion, before final order or judgment, set aside any default, and may on motion filed within 30 days after entry thereof set aside any final order or judgment upon any terms and conditions that shall be reasonable.

Two distinct powers in one sentence.

Before final judgment, the court may set aside a default at any time, in its discretion. No deadline attaches to this half, because the case is still open.

After final judgment, the motion must be filed within 30 days after entry, and the standard is "any terms and conditions that shall be reasonable."

That word — reasonable — is doing the work. The subsection does not require a meritorious defence, a reasonable excuse, or diligence. Illinois courts applying 2-1301(e) ask whether substantial justice is being done between the parties, a standard considerably more forgiving than what follows on day

1. That gloss comes from case law rather than the statute; the statutory text gives only

"reasonable."

Two related provisions sit alongside it. 2-1301(f): a joint order or judgment may be set aside as to fewer than all parties, and remains in full force as to the others. 2-1301(a) directs the court to determine the rights of the parties and grant any affirmative relief to which a party is entitled on the pleadings and proofs.

After 30 days — 735 ILCS 5/2-1401

(a) Relief from final orders and judgments, after 30 days from the entry thereof, may be had upon petition as provided in this Section.

Subsection (a) also abolishes what 2-1401 replaced — writs of error coram nobis and coram vobis, bills of review, and bills in the nature of bills of review — and provides that all relief and grounds formerly available by those routes are available under this Section, regardless of the nature of the order or the proceeding it came from.

It is a petition, not a motion, and it stands on its own. 2-1401(b): "The petition must be filed in the same proceeding in which the order or judgment was entered but is not a continuation thereof." Same case number, new proceeding.

It must be supported. The same subsection: "The petition must be supported by an affidavit or other appropriate showing as to matters not of record." A petition resting only on argument doesn't meet the statute.

All parties get notice, as provided by rule. For a petition to reopen a foreclosure, 2-1401(b) requires joining all parties to the original action plus current record title holders, current occupants, and anyone with a recorded interest predating the petition.

The two-year limit, and what stops the clock

2-1401(c): subject to the exceptions it names, "the petition must be filed not later than 2 years after the entry of the order or judgment."

The subsection excludes time during which the person seeking relief is under legal disability or duress, or the ground for relief is fraudulently concealed — those periods don't count against the two years. It also carves out petitions under several specific statutes it lists.

Filing does not stop enforcement

2-1401(d) is short and consequential:

The filing of a petition under this Section does not affect the order or judgment, or suspend its operation.

A pending 2-1401 petition leaves a wage garnishment or a citation to discover assets running. Staying enforcement is a separate request.

Third parties who bought in the meantime

2-1401(e): unless lack of jurisdiction affirmatively appears from the record proper, vacating or modifying a judgment under this Section does not affect the right, title or interest in property of a person not a party to the original action who acquired it for value after entry of the judgment but before the petition was filed — nor any right of a non-party under a certificate of sale issued beforehand.

This is why the two-year window matters in practice as much as in principle: a judgment that has been executed on, with property sold to a stranger to the case, may be vacated without the property coming back.

Void judgments are outside all of it

2-1401(f): "Nothing contained in this Section affects any existing right to relief from a void order or judgment, or to employ any existing method to procure that relief."

A judgment that is void — entered without jurisdiction over the person or the subject matter — is not subject to the two-year limit, and can be attacked by whatever method the law otherwise allows.

Whether a given judgment is void rather than merely erroneous is decided under Illinois case law, which this site doesn't cover.

The two routes side by side

Where a default comes from

735 ILCS 5/2-1301(d) permits judgment by default for want of an appearance, or for failure to plead, where a party is entitled to it. The response deadlines that precede it come from Illinois Supreme Court Rule 181, which is a Supreme Court Rule rather than a provision of the Code of Civil Procedure.

If the underlying complaint is what you want to attack rather than the judgment, the motions in 735 ILCS 5/2-615 and 2-619 are covered in the guide on Illinois motions to dismiss — including the combined-motion format that 2-619.1 requires.

Where these rules live

• 735 ILCS 5/2-615 — Motions With Respect to Pleadings
• 735 ILCS 5/2-619 — Involuntary Dismissal
• 735 ILCS 5/2-619.1 — Combined Motions
• 735 ILCS 5/2-1301 — Judgments; Default
• 735 ILCS 5/2-1401 — Relief From Judgments

The Illinois courts publish self-help material at illinoiscourts.gov, and Illinois Legal Aid Online maintains guidance for people facing debt judgments. This page explains what the statutes say. It isn't legal advice.