IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS

COUNTY DEPARTMENT, CHANCERY DIVISION

Mark Wilk,
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Plaintiff, C!;
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Thaddeus Wilk, et al., No. 10-CH-230

Defendants. 10-M3-001
Consolidated

PLAINTIFFS' OBJECTIONS TO DEFENDANTS MOTION TO DISMISS THE COMPLAINT

PURSUANT TO 735 ILCS 5/24 15

Plaintiff, Mark Wilk, hereby files and presents these Objections to defendants' motion to

dismiss the Chancery Complaint and in support thereof states as follows:

OBJECTIONS

1. Thaddeus Wilk's attorney of record filed his Appearance in the Chancery case on

August 11'20 10 without Thaddeus being served with process of the Summons and Complaint.

2. The Chancery complaint that the attorney attached to his motion to dismiss as

"EXHIBIT B" was served and provided to him personally by Plaintiff on June 8,2010 as a"COPY",

because he requested and accepted it for the defendant Thaddeus Wilk as his attorney of record.

3. Thaddeus's attorney failed to file his Appearance within the 30 days of acceptance of

the Chancery complaint for Thaddeus. And therefore waiving the required service of process on

Thaddeus Wilk the defendant.

4. Attached to the original filed Chancery Complaint and made a part thereof is the two

page purported "Quit Claim Deed" and the purported "Statement by Grantor and Grantee",
consisting of three pages altogether. They are the required instruments that are attached to the

Complaint as an exhibit. Defendants' attorney failed to include the exhibit as part of his exhibits in

his motion to dismiss the Chancery complaint. When Plaintiff issued process of the Summons and

Complaint the instrument exhibit were attached and part of the Complaint.

FURTHER OBJECTIONS TO DEFENDANTS' MOTION TO DISMISS

5. Defendant's attorney in his motion to dismiss alleges that the Chancery complaint "is

substantially insufficient in law9' and that it "fails to state a cause of action".

6. Plaintiff has standing due to the allegations in the Complaint that the deed is VOID.

Deeds are void or invalid for lack of delivery and acceptance by the grantee before the deaths of the

grantor or grantors. Helen Maciaszek v. Mary Maciaszek, 21 flZ.2d 542 (1961); John McGhee et al.,

v. Fanniw Forrester, 15 Ill2d 162 (1958); In re Estate of Wittmond, 314 Ill. App. 3d 720; Wood v.

Wood, 284 Ill. App. 3d 718 (4th Dist. 1996). Delivery of a deed is essential to the operation and

validity of a conveyance and together with other circumstances and facts alleged in the Complaint

that would void or make invalid the purported conveyance to Thaddeus Wilk. As delivery of the

deed must be made during the grantor's lifetime. Landau v. Landau, 409 IZZ. 556 (1931). And

where a deed is not delivered before the grantor's death, no act of the grantee after the grantor's

death can complete the transaction and make the delivery effective.

7. As a heir to his parents property, Plaintiff has standing when Thaddeus attempts to

claim sole possession to the property in question and is attempting to evict one of the heirs to the

property who has adverse possession and actual occupancy.

 8. The recording of a deed or it's delivery for recording does not of itself constitutes

delivery. And the question whether a deed has been delivered is a mixed question of law and fact.

Calcutt v. Gaylord, 415 Ill. 390 (1953); Fonda v. Miller, 411 Ill. 74 (1951).

9. A section 2-61 5 motion should not be granted unless it clearly appears that no set of

facts could ever be proved that would entitle the plaintiff to recover. Ostendorj'v. International

Harvester Co., 89 ll1.2d 273 (1982); Fechtner v. Lake County Savings & Loan Association, 66 R1.2d

128 (1977).

10. The filed Chancery Complaint appends the instruments in compliance with 735 ILCS

512-606. And 735 ILCS 512-603 as to the form of the pleadings; the failure to specifically state

certain necessary factual allegations does not render a complaint fatally defective so long as such

allegations can be inferred from the complaint when read as a whole. Walinski v. Morrison &

Morrison, 60 Ill. App. 3d 616 (1st Dist, 1978).

11. Sufficient facts are alleged and contained in the Complaint which, if proved, would

entitle Plaintiff to relief Urbaitis v. Commonwealth Edison, 143 I7l. 2d 458 (1991). Furthermore,

the Complaint alleges a void or invalid conveyance of a purported deed to Thaddeus by the

deceased grantors.

12. The court is to interpret the allegations of the Complaint in the light most favorable

to the plaintiff. McGrath v. Fahey, 126 Ill. 2d 78 (1988).

 WHEREFORE based on the foregoing reasons, Plaintiff asks this court to deny the defendant's

motion to dismiss the Chancery complaint or in the alternative find Thaddeus Wilk in d e f d t .

Grant any such other and further relief as it deems equitable and proper.

ly Submitted,
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Atty. No. 99500 Mark Wilk
Mark Wilk
337 E. Nonnan Ln.
Wheeling, Illinois 60090-4525
630-202-1798

SUPREME COURT RULE 137 CERTIFICATE

The undersigned party, certifies he has read the pleadings herein, that to the best of his knowledge,
information and belief, formed after reasonable inquiry, believes they are we1 grounded in fact and
warrant& by existing l& or a good faith argument for the extension, modification or reversal of
existing law, and that they are not imposed for any improper purpose such as unnecessary delay or
* t or n ~ l e s s l increa
y e the wst of litigation.
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September 13,2010
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Mark Wilk Dated