No. 2--01--1129

JUSTICE O'MALLEY delivered the opinion of the court:

Plaintiff, the Rockford Housing Authority, filed a forcibleentry and detainer complaint against defendant, Dorothy Donahue. The trial court defaulted defendant because she did not file awritten appearance or pay the required filing fee before trial. The court refused to vacate the default judgment. Defendantappeals, contending that (1) Supreme Court Rule 181(b) (166 Ill. 2dR. 181(b)) does not require a written appearance in a forcibleentry and detainer action; (2) because no written appearance wasrequired, the court erred in defaulting plaintiff for not filingone; and (3) the court erred by refusing to vacate the defaultjudgment. Because we agree with defendant's third contention, wereverse the judgment on that basis without deciding the other twoissues.

Plaintiff is a public housing agency. Defendant and her twochildren live in an apartment pursuant to a lease with plaintiff,which receives a rental subsidy from the United States Departmentof Housing and Urban Development.

Plaintiff filed a complaint against defendant alleging thatshe breached a lease provision prohibiting criminal conduct bytenants when she was arrested for disorderly conduct after fightingwith Leticia Chears. On July 23, 2001, defendant was served witha summons that required her to "appear" on August 16, 2001. Defendant appeared in court pro se on that date, denied thecomplaint's allegations, and requested a trial.

While in court, defendant was given a "NOTICE TO FORCIBLEDETAINER DEFENDANTS." The notice states that if defendant did notpay a fee of $70 at least 48 hours before the next court date shewould be defaulted and prevented from participating in the trial. It states that the fee could be waived for financial need. Thenotice does not mention filing an appearance or answer and is notsigned by the judge. Trial was set for September 13, 2001.

On September 13, defendant again appeared pro se and requestedadditional time to pay the filing fee. However, the court foundher in default for failing to file an appearance and enteredjudgment against her. Later that day, defendant filed a pro semotion requesting additional time to pay the filing fee.

Defendant then retained Prairie State Legal Services (PrairieState), which, on September 20, 2001, filed a verified motion tovacate the default judgment. The motion alleges that defendant wasacting in self-defense when she fought with Chears. Prairie Statealso filed a certification pursuant to section 5--105.5(b) of theCode of Civil Procedure (735 ILCS 5/5--105.5(b) (West 2000)) thatresulted in waiving all fees for defendant.

On September 27, 2001, the court denied the motion to vacate. The court's written order states that "Defendant's verified motionto vacate is denied for the same reasons she was originallydefaulted on September 13, 2001." Defendant timely appeals.

The parties dispute whether defendant should have beenrequired to file a written appearance at all. See 166 Ill. 2d R.181. Defendant contends that no written appearance was requiredand, therefore, the court erred in defaulting her for not filingone. However, we need not resolve these issues because, even ifthe court properly defaulted defendant, it should have exercisedits discretion to vacate the default.

Although the court may enter a default judgment for want of anappearance, a default judgment is a drastic measure, not to beencouraged and to be employed only as a last resort. Biscan v.Village of Melrose Park Board of Fire & Police Commissioners, 277Ill. App. 3d 844, 848 (1996). Once the court does enter a defaultjudgment, it may exercise its discretion to set aside the default"upon any terms and conditions that shall be reasonable." 735 ILCS5/2--1301(e) (West 2000).

A trial court's refusal to vacate a default judgment may bereversed because of a denial of substantial justice or for an abuseof discretion. Venzor v. Carmen's Pizza Corp., 235 Ill. App. 3d1053, 1056-57 (1992). Factors in deciding whether a default orderaccomplishes substantial justice include the severity of thepenalty to the defendant and the attendant hardship on theplaintiff if it is forced to proceed to trial. Venzor, 235 Ill.App. 3d at 1057-58.

Here, defendant received a summons that instructed her toappear on August 16. It did not require defendant to do anythingelse. She appeared in court on August 16 but received a "notice"stating that she had to file a written appearance and pay a filingfee before trial. The legal efficacy of this notice is not clear,given that no local rule specifically authorizes this notice and itis not signed by a judge.

Defendant then appeared on the trial date but was defaultedbecause she had not paid the appearance fee. Defendant'ssubsequent pleadings make it appear that the only reason she failedto pay the appearance fee was that she could not afford to do so. Plaintiff does not dispute this fact.

After being defaulted, defendant immediately filed a pro semotion seeking more time to pay the filing fee. Within a week, shecontacted Prairie State, which filed a written appearance andobtained a waiver of the fee.

This sequence of events does not demonstrate the repeatedflouting of the court's authority or deliberate indifference to itscommands that will justify a default judgment. In WilkinInsulation Co. v. Holtz, 186 Ill. App. 3d 151 (1989), whichplaintiff cites, the court had already entered and vacated threedefault judgments against the third-party defendant beforedeclining to vacate the fourth one. In affirming, the appellatecourt observed that repeated violations of a court's orders wouldjustify a default. Wilkin, 186 Ill. App. 3d at 155-56.

In Venzor, defendant stated that he failed to respond to thesummons because of "ignorance." While we termed this a "poorexcuse" (Venzor, 234 Ill. App. 3d at 1058), we neverthelessreversed the $100,000 default judgment against defendant. Westated, "We fail to see how justice demands [that defendant] paysuch an amount for his default, particularly where no evidence hasbeen presented indicating that his failure to respond to thesummons amounted to a contumacious flouting of judicial authority***." Venzor, 235 Ill. App. 3d at 1059.

The same reasoning applies here. Defendant appeared in courteach time the case was called. There is absolutely no evidencethat she was deliberately indifferent to the court's authority. Apparently, she failed to pay the filing fee because she could notafford it. The notice she received does not explain how to obtaina fee waiver. This conduct does not warrant the ultimate sanctionof a default judgment.

Plaintiff argues that forcible entry actions are meant to beexpeditious proceedings and that tolerating even minimal delayswill destroy the efficacy of this procedure. The problem with thisargument is that defendant never sought to delay the proceedings. Indeed, she appeared on the date specified and requested a trial. She appeared on the trial date. Apparently, had the court beenwilling to waive the appearance fee, a trial could have proceededat that time. It was only after she was defaulted that defendantsought more time to pay the filing fee. Within a week, she movedto vacate the default judgment. Defendant simply did nothing todelay the proceedings.

Plaintiff contends that the court was justified in refusing tovacate the default judgment because defendant was aware of what sheneeded to do to contest the case but failed to do so. Of course,the entry of a default judgment presupposes that a defendant wasaware of what needed to be done and failed to do it. However,section 2--1301(e) gives the court discretion to vacate the defaultupon terms that are "reasonable." 735 ILCS 5/2--1301(e) (West2000). If the same failure to act that caused the default in thefirst place automatically justified the failure to vacate thedefault, section 2--1301(e) would be meaningless: there would neverbe a situation where a default judgment was vacated.

Plaintiff's argument is ironic because plaintiff all butconcedes that the summons it served on defendant did not complywith Supreme Court Rule 101(b) (166 Ill. 2d R. 101(b)). Rule101(b) requires that a summons contain a "NOTICE TO DEFENDANTS,"where simple and specific instructions outlining the procedure foran appearance "shall be set out." 166 Ill. 2d R. 101(b). Asplaintiff acknowledges, the summons in this case does not containsuch a notice, but plaintiff argues that the notice given todefendant on the appearance date was a belated attempt to complywith the rule. However, while plaintiff reminds defendant that"[c]ourt rules are not merely suggestions to be complied with ifconvenient" and insists that the harshest possible penalty isappropriate for the pro se defendant for her single failure tocomply with the instructions on the notice form, plaintiff asks usto overlook its own failure to comply with Rule 101(b) because thecourt belatedly attempted to correct the mistake.

A summons is a formal document that must be served in one ofthe specified ways to ensure that a defendant actually receives it. See 735 ILCS 5/2--203 (West 2000). The notice to defendants is aninformal slip of paper that could easily be lost or disregarded inthe often chaotic conditions of a busy courtroom. Presumably forthis reason, the supreme court chose to require that theinformation on how to appear and contest the case be included inthe summons, not merely given to a defendant whenever convenient.

Plaintiff's double standard is further reflected in itsargument that, although defendant will lose her home if the defaultjudgment is affirmed, "[l]oss of housing can be no more drastic toa defendant than a money judgment." Plaintiff also suggests thatdefendant's case should not receive "heightened scrutiny" merelybecause she and her children will be left homeless. However, inthe next paragraph of its brief, plaintiff complains that it willsuffer numerous "hardships" if it is forced to present its case onthe merits. We disagree and find that defendant will suffer agreater hardship if she is evicted from her home without receivingher day in court than will plaintiff if it is merely required toprove the merits of its case.

The judgment of the circuit court of Winnebago County isreversed, and the cause is remanded for further proceedings.

Reversed and remanded.

HUTCHINSON, P.J., and BOWMAN, J., concur.