The following pleading was filed in Chancery Court and transferred to Domestic Relations Court, and assigned to Judge Francis A. Gembala. Judge Gembala ruled against all the arguments raised by the defendants, then ruled, contrary to all law, that he did not have jurisdiction to vacate the 91-D-5122 void judgment. The law states that all courts have jurisdiction to vacate void orders. For at least three reasons he issued a void judgment.
For one reason, it is clear and well established law that whenever an officer of the court makes any misrepresentations, whether of commission, of omission, of silence, or of concealment, that attorney (officer of the court) commits "fraud upon the court", and deprives the judge of jurisdiction. One of the attorneys who made deliberate and multiple misrepresentations to the court was attorney Theodora Gordon. The multiple charges of unethical conduct against attorney Theodora Gordon can be found in the pages of this web-site devoted to the reporting of her misconduct to the Attorney Registration and Disciplinary Commission. Read it, it is interesting reading.
None of the plaintiff's allegations, nor the law cited, made in
the pleading have been controverted; some have been acknowledged by other
courts, and all are part of court records. If any of the plaintiff's allegations
were frivolous, then sanctions should have been charged against the Plaintiff's
attorney who made the charges -- no sanctions have been considered since
all of the allegations were, and are, true.
Attorney Code #22017 IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, CHANCERY DIVISION EUGENE W. ALPERN ] Plaintiff, ] vs. ] PHYLLIS ALPERN, ALLEN S. GABE, ] 96-CH-5651 ROBERT K. BLAIN, and ] REGINA SCANNICCHIO ] Defendants. ]
1. The Defendant PHYLLIS ALPERN (Phyllis) and Plaintiff, EUGENE W. ALPERN (Eugene) were joined in marriage on February 7, 1960, said marriage being registered in Suffolk County, New York.
2. The Defendants, ALLEN S. GABE, and ROBERT K. BLAIN are attorneys hired by Phyllis in relation to dissolution of marriage proceedings filed by her in the Circuit Court of Cook County, Illinois.
3. The Defendant, REGINA SCANNICCHIO, is an attorney hired by Phyllis, Gabe and Blain to represent them as creditors in a Bankruptcy matter filed by Eugene in the U.S. Bankruptcy Court, Northern District of Illinois.
4. On or about February 23, 1990, Phyllis filed a petition for dissolution of marriage in the Circuit Court of Cook County, known as case number 90 D 2724. (Copy of Petition attached as Exhibit A)
5. On or about March 24, 1991, Phyllis obtained an order dismissing case number 90 D 2724. That order is marked as "Agreed" notwithstanding the fact that it does not contain the signature of Eugene and was obtained without his prior knowledge or consent. (Exhibit B)
6. On April 4, 1991, Phyllis filed a second Petition for Dissolution of Marriage in the Circuit Court of Cook County, Illinois, said case being 91 D 5122. (Document is not in possession of Plaintiff and is not available at the time of filing of this complaint.)
7. The purported judgment of Dissolution was entered in case 91 D 5122 on August 10, 1992. (Exhibit C)
8. The grounds stated in the purported Judgment of Dissolution are irreconcilable differences.
9. On August 26, 1992, Eugene filed a notice of appeal from the August 10, 1992 judgment of dissolution.
10. On April 8, 1993, Eugene filed a voluntary petition for bankruptcy in the U.S. Bankruptcy Court, Northern District of Illinois known as In Re Bankruptcy of Eugene Alpern, 93 B 07643. (Exhibit D)
11. Notwithstanding the filing of the bankruptcy and the automatic stay issued therein, Defendants Phyllis, and her attorneys prosecuted the appeal without first obtaining relief from that stay.
12. The Appellate Court of Illinois issued a Rule 23 opinion on August 24, 1995.
13. The August 24, 1995 Appellate Court opinion and order was obtained by Phyllis in violation of the automatic stay in bankruptcy and is thus void. [11 U.S.C.A. Sec. 362(a); Hillis Motors, Inc. v. Hawaii Auto Dealers' Ass'n, 997 F.2d 581; York Center Park Dist. v. Krilich, (CA7 Ill. 1994) 40 F.3d 205.
14. Eugene has consistently maintained that the court lacked subject matter jurisdiction in case number 91 D 5122.
15. Eugene contends that the court lacked subject matter jurisdiction in case 91 D 5122 for the following reasons:
a. The statutory required jurisdictional facts were neither alleged nor existent.
b. No properly executed and verified petition containing allegations of the required jurisdictional facts has ever been filed.
c. The appeal of the dissolution proceeding was prosecuted by Phyllis in violation of the automatic stay ordered by the U.S. Bankruptcy Court in the case of In Re Bankruptcy of Eugene Alpern, 93 B 07643.
16. Dissolution of Marriage is a statutory proceeding under Illinois law. Strukoff v. Strukoff, 76 Ill2d 53, 60, 389 NE2d 1170, 1172-73 (1979).
17. In a statutory proceeding under Illinois law, every fact required by statute must be alleged and proved, otherwise subject matter jurisdiction does not attach to the action.
a. In re Contest of Elections for Governor, 93 Ill.2d 465 (1983), the court stated:
"The petition required to put the court in motion and give it jurisdiction must be in conformity with the statute granting the right and must contain all the statements which the statute says the petition shall state, - and if the petition fails to contain all of these essential elements the court is without jurisdiction." citing Brown v. VanKeuren, 340 Ill. 118 (1930). [Emphasis added].
b. The court derived its jurisdiction to proceed in a matter solely from statute, ordinary presumptions of jurisdiction do not obtain, and every fact necessary to support such jurisdiction must appear from the face of the record. People v. Heizer, 36 Ill.2d 438, 223 N.E.2d 128 (1967) [Emphasis added.]
19. The Marriage and Dissolution of Marriage Act, 750 ILCS., Sec. 5/401 and Sec. 5/403 (formerly Ill.Rev.Stat. ch 40, Sec. 401 and Sec. 403), in effect at all pertinent times, requires that at the commencement of an action under this statute, that one of the parties must be a resident of the State of Illinois for a minimum of 90 days next preceding the commencement date of filing) of a Petition for Dissolution of Marriage, and if the ground of irreconcilable differences in contested divorces is pled (2), have "lived separate and apart for a continuous period of two years".
20. April 1991 is less than the two year separation period required by the Statute; 750 ILCS., Sec. 5/401 and Sec. 5/403 (formerly Ill.Rev.Stat. ch 40, Sec. 401 and Sec. 403).
22. In pertinent part 750 ILCS., Sec. 5/403 (formerly Ill.Rev.Stat. ch 40, Sec. 403) [Exhibit E] requires that:
a. The petition for dissolution of marriage or legal separation shall be verified and shall minimally set forth
b. the names, ages and addresses of all living children of the marriage and whether the wife is pregnant.
23. The certified record of the 91 D 5122 case does not contain a Petition for Dissolution of Marriage. Therefore, it does not, and cannot, strictly comply with the above referenced requirements, i.e. Sec. 5/401 and Sec. 5/403.
24. As a result of the judicial admissions made by Phyllis that the parties were not separated for two years preceding the commencement of the 91 D 5122 case, Phyllis cannot allege the requisite separation period, therefore, even post judgment amendments will not cure the jurisdictional defects.
25. Phyllis has not, and cannot, provide a certified copy of the Petition filed in case number 91 D 5122 that contains all of the following statutorily required matters:
a. A petition that is signed and verified.
b. A petition that contains the names, ages, and addresses of all living children.
c. A petition that contains information on whether the wife was pregnant.
d. A petition that contains a statement that the parties were separated two years prior to the date the 91 D 5122 case was commenced.
26. The trial court in case 91 D 5122 lacked authority to act for want of subject matter jurisdiction. People v. Brewer, 328 Ill. 472, 483 (1928) ("If it could not legally hear the matter upon the jurisdictional paper presented, its finding that it had the power can add nothing to its authority, -- it had no authority to make that finding.")
27. The character of the judgment of dissolution being void being brought to the attention of this court, this court is obligated to expunge the order. (It is well settled that a court must expunge a void order. People v. Magnus, 262 Ill.App.3d 362, 633 N.E.2d 869, 872 (1st Dist. 1994). "The court must act if lack of jurisdiction is brought to its attention or appears on the record." [Emphasis in original] Automated Pro. Tax v. Dept. of Emp. Sec., 244 Ill.App.3d 485, 612 N.E.2d 1008 (1933).
"11 U.S.C.A. Sec. 362(a) Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title, or an application filed under section 5(a)(3) of the Securities Investor Protection Act of 1970 (15 U.S.C. 78eee(a)(3)), operates as a stay, applicable to all entities, of --
(1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceedings against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title;
(2) the enforcement, against the debtor or against property of the estate, of a judgment obtained before the commencement of the case under this title;"
29. The automatic stay going into effect on April 8, 1993, prohibited Phyllis from continuing with the appeal of the Judgment of Dissolution dated August 10, 1992. [Ellison v. Northwest Engineering Co. (1983, CA11 Fla) 707 F2d 1310, 11 BCD 401.]
30. The opinion of the Illinois Appellate Court having been entered in violation of the automatic stay created by 11 U.S.C.A. Sec. 362(a), is void. [Actions taken in violation of automatic stay are void, and without effect. Re McWhorter (1984, BC DC SC) 37 BR 42.]
31. Defendants are estopped from pleading or otherwise advancing the void order of the Appellate Court as a bar to the instant complaint.
33. The Bankruptcy Judge refuses to consider a collateral attack of the August 10, 1992 judgment in Eugene's bankruptcy matter, relegating Eugene to seek relief in the State Court.
34. The Trustee in Bankruptcy, Lawrence Fisher, has taken possession of the Plaintiff's house and listed it with a realtor for the purpose of selling Plaintiff's home.
35. But for the debts created by the judgments in case 91 D 5122, Eugene would not be bankrupt and would have no debts. Thus, there would no reason for the Trustee to take possession of Eugene's house or to sell Eugene's house.
36. Without a declaration by this court that the orders of July 31, 1992 and August 10, 1992 are void, the Defendants will continue to seek enforcement thereof and Eugene will lose his house.
37. Eugene seeks for this court to declare
a. that no valid Petition has been filed with the court to grant the 91 D 5122 court any subject matter jurisdiction.
b. that in case 91 D 5122, no commencement of an action has occurred within the meaning of and pursuant to 735 ILCS 5/2-201.
c. that the orders of July 31, 1992 and August 10, 1992 are void
ab initio.
WHEREFORE, Plaintiff prays as follows:
A. That this court declare that no valid Petition has been filed with the court to grant the 91 D 5122 court any subject matter jurisdiction.
B. That this court declare that in case 91 D 5122, no commencement of an action has occurred within the meaning of and pursuant to 735 ILCS 5/2-201.
C. That this court declare that the orders of July 31, 1992 and
August 10, 1992 are void ab initio.
D. That the Plaintiff be awarded the costs of this suit.
E. That the Plaintiff be granted such other and different relief as the court deems to be just and proper.
Respectfully Submitted, Terrence M. Jordan Terrence M. Jordan #22017 Attorney for Plaintiff 200 N. Dearborn St. #806 Chicago, IL. 60601-1617 (312) 346-2468 FAX (312) 346-6789
I, Eugene W. Alpern, under penalties of perjury as provided by Code
of Civil Procedure Section 5/1-109 state that the allegations contained
in this above and foregoing complaint are true and correct to the best
of my knowledge.
________________
Eugene W. Alpern
email: clr@clr.org