                                Illinois Official Reports

                                       Appellate Court



           Charles Austin, Ltd. v. A-1 Food Services, Inc., 2014 IL App (1st) 132384



Appellate Court           CHARLES AUSTIN, LTD., an Illinois Corporation, Plaintiff-
Caption                   Appellee, v. A-1 FOOD SERVICES, INC., an Illinois Corporation,
                          JIAN BIN ZHENG, HUA LIN, and FOREVER GREEN FOOD
                          GROUP, INC., Defendants-Appellants.



District & No.            First District, Third Division
                          Docket No. 1-13-2384



Filed                     December 10, 2014



Held                       Where plaintiff food distributor added a second food vendor to the
(Note: This syllabus ongoing action plaintiff had initially filed against a vendor following
constitutes no part of the the second vendor’s purchase of the first vendor’s assets, the trial
opinion of the court but court properly dismissed the second vendor’s petition under section
has been prepared by the 2-1401 of the Code of Civil Procedure seeking relief from the default
Reporter of Decisions judgment plaintiff obtained against the second vendor after plaintiff
for the convenience of filed an amended complaint against the second vendor on a theory of
the reader.)               successor liability and the second vendor failed to appear or respond,
                           since the second vendor’s history of ignoring the court’s orders and
                           the properly served summons, failing to present its defense, and
                           waiting for the closure of its bank account pursuant to citation
                           proceedings established that it failed to exercise diligence in
                           defending the original action and it lacked a meritorious defense;
                           therefore, there was no need to consider its lack of diligence in filing
                           its section 2-1401 petition.

Decision Under            Appeal from the Circuit Court of Cook County, No. 12-L-396; the
Review                    Hon. Margaret Brennan, Judge, presiding.
     Judgment                  Affirmed.


     Counsel on                Anthony J. Peraica, Timothy Sprague, and Jennifer M. Hill, all of
     Appeal                    Anthony J. Peraica & Associates, Ltd., of Chicago, for appellants.

                               Dean J. Lurie and John A. Ziegler, both of Stone Pogrund & Korey,
                               LLC, of Chicago, for appellee.



     Panel                     JUSTICE HYMAN delivered the judgment of the court, with opinion.
                               Presiding Justice Pucinski and Justice Lavin concurred in the
                               judgment and opinion.




                                                 OPINION

¶1          In the midst of litigation over a debt it owed plaintiff, Charles Austin Limited, defendant
       A-1 Food Services, Inc., sold all of its assets to Forever Green Food Group, Inc. Once
       Charles Austin learned of the transaction, it added Forever Green as a defendant to the
       ongoing lawsuit. Forever Green, however, did not appear or otherwise respond, and Charles
       Austin then secured entry of a default judgment against Forever Green in the amount of
       $186,688.72. Forever Green sought to vacate the judgment three months later, only after its
       bank account was frozen in a third-party citation proceeding.
¶2          Thereafter, Forever Green filed for relief from the judgment under section 2-1401 of the
       Illinois Code of Civil Procedure (735 ILCS 5/2-1401 (West 2012)), attacking the service on
       the grounds that its registered agent did not recollect receiving a copy of the summons or
       complaint from the Cook County sheriff. Forever Green further argued it (i) had a
       meritorious defense to the underlying lawsuit because, generally, a successor corporation is
       not liable for the debts of the transferor corporation, (ii) was diligent in defending itself in the
       original lawsuit, and (iii) was diligent in filing the section 2-1401 petition. The trial court
       denied Forever Green’s section 2-1401 petition, rejecting all of its arguments and
       determining that its affidavits were untruthful to the point of appearing “almost
       embarrassing.”
¶3          We agree with the trial court that service on Forever Green was proper and that Forever
       Green failed to establish the elements necessary under section 2-1401. Accordingly, we
       affirm.

¶4                                      BACKGROUND
¶5         Plaintiff, Charles Austin Limited, an Illinois corporation, distributes food and
       food-related products. On August 26, 2005, Charles Austin entered into a business loan
       agreement with A-1 Food Services, Inc. Charles Austin agreed to provide A-1 Food with a


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       credit line. Defendants Jian Bin Zheng and Hua Lin guaranteed the loan. The business loan
       agreement continued without incident until late 2011 when A-1 Food failed to pay invoices
       to Charles Austin. By the end of 2011, A-1 Food owed Charles Austin nearly $185,000.
¶6         In January 2012, Charles Austin filed a breach of contract complaint against A-1 Food,
       Zheng, and Lin. Although served, none of them appeared or responded to the complaint.
       After Charles Austin filed a written motion for default, the three defendants moved to vacate
       the defaults, which the trial court granted. At about this time, A-1 Food agreed to sell all of
       its assets to Forever Green. Philip Chow, an Illinois attorney and Forever Green’s
       then-registered agent, acted as attorney for Forever Green in the transaction. On May 7,
       2012, Zheng, the president of A-1 Food, certified that A-1 had no creditors at the time of
       sale.
¶7         On May 10, 2012, A-1 Food, Zheng, and Lin answered the complaint. About three
       months later, Charles Austin issued a subpoena to Forever Green seeking documents
       pertaining to the sale of assets. Forever Green responded through an attorney from Indiana.
       During this time, Zheng and Lin filed for bankruptcy.
¶8         In October 2012, Charles Austin filed an amended complaint, naming Forever Green a
       defendant under a successor liability theory. Charles Austin alleged that Forever Green
       assumed A-1 Food’s liabilities under contract for the sale of assets and that the sale was a
       fraudulent transaction made to avoid A-1 Food’s liabilities to Charles Austin. On October 29,
       2012, the Cook County sheriff served Forever Green with a copy of the amended complaint
       and summons. The sheriff’s affidavit of service stated that the sheriff served Chow as
       registered agent. Forever Green never appeared or responded to the amended complaint.
¶9         On January 10, 2013, Charles Austin orally moved for default and prove-up of damages
       against Forever Green. The trial court entered and continued the motion until February 22,
       2013. On February 15, 2013, Charles Austin mailed to Chow a copy of the January 10 order,
       a notice of the motion for default judgment, and a copy of the written motion. Although the
       exact date is disputed, between January 10 and February 15, 2013, Forever Green changed its
       registered agent from Chow to Ke Y. Wang. On February 22, 2013, the trial court entered a
       default judgment against Forever Green.
¶ 10       Charles Austin began third-party citation proceedings to collect on the judgment and gave
       notice of the citation to Chow on May 9, 2013. Forever Green thereafter appeared and moved
       to vacate the default judgment under section 2-1401. 735 ILCS 5/2-1401 (West 2012). In its
       motion, Forever Green argued: (1) justice and equity required vacating the default judgment,
       it had a meritorious defense, and met the diligence requirements; (2) Charles Austin gave
       notice of the default motion to Chow and not its registered agent, Wang, or its Indiana
       counsel; and (3) lack of personal jurisdiction. In support, Forever Green attached affidavits of
       Chow and Wang. Chow claimed “not [to] recall ever receiving a copy of the Amended
       Complaint” and if he had, he “would have notified Forever Green, or its counsel, and ensured
       that it timely appeared and filed a responsive pleading.” Wang claimed that he replaced
       Chow as registered agent “on or about February 15, 2013,” was never served with a copy of
       the amended complaint, and had no knowledge of Charles Austin’s motion for default until
       Forever Green’s bank notified him that its account had been frozen.
¶ 11       The trial court denied Forever Green’s motion to vacate the default judgment, concluding
       that service on Forever Green was proper. In doing so, the trial court rejected Forever
       Green’s diligence arguments as well as its contention that it only became aware of the

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       lawsuit from the citation proceedings. Finally, as to the two affidavits, the trial court noted
       that they “were almost embarrassing to be presented to the Court. These people are putting a
       spin on things that’s not appropriate[.] *** [Y]ou have to remember that you have a
       responsibility to tell your client *** you have to be truthful with the Court, and this was not
       truthful.”

¶ 12                                         ANALYSIS
¶ 13        On appeal, Forever Green asserts: (i) lack of personal jurisdiction; and (ii) error by the
       trial court in denying the motion to vacate the default judgment. 735 ILCS 5/2-1401 (West
       2012).

¶ 14                                       Personal Jurisdiction
¶ 15        Without valid jurisdiction, a court cannot proceed or act over a case or its parties. BAC
       Home Loans Servicing, LP v. Mitchell, 2014 IL 116311, ¶ 17. An appellate court reviews
       issues of personal jurisdiction de novo. Id.
¶ 16        A party can serve a private corporation by leaving a copy of the summons and complaint
       with the registered agent or any officer or agent of the corporation found anywhere in the
       State. 735 ILCS 5/2-204 (West 2012). An affidavit of service constitutes prima facie
       evidence of proper service. Paul v. Ware, 258 Ill. App. 3d 614, 617 (1994). Courts entertain
       every reasonable presumption in favor of the return of service. MB Financial Bank, N.A. v.
       Ted & Paul, LLC, 2013 IL App (1st) 122077, ¶ 24. To attack a default judgment for lack of
       personal jurisdiction, the challenging party must produce evidence impeaching the return of
       service by clear and convincing evidence. Paul, 258 Ill. App. 3d at 617. An uncorroborated
       affidavit merely saying that the defendant had not been personally served is not enough to
       refute the return of service. Id.
¶ 17        Forever Green claims its registered agent never received the complaint and summons
       from Charles Austin. In his affidavit, Forever Green’s then-registered agent, Chow, attempts
       to rebut the Cook County sheriff’s return by claiming he did “not recall ever receiving a copy
       of the Amended Complaint,” and if he had been served, he would have “notified Forever
       Green, or its counsel, and ensured that it timely appeared and filed a responsive pleading.”
¶ 18        Chow’s affidavit is woefully deficient. Neither decision on which Forever Green relies,
       Ellman v. De Ruiter, 412 Ill. 285 (1952), and Schnable v. Tuma, 351 Ill. App. 486 (1953),
       warrants a contrary result. In Ellman, the supreme court vacated a default judgment on the
       basis of the court’s equitable powers to prevent an injustice–the plaintiff’s attorney’s
       representations misled the defendant on status, which caused the defendant to refrain from
       filing a timely motion to vacate. Ellman, 412 Ill. at 293-94. In Schnable, a case largely
       confined to its facts, the defendant established no proper service of process through clear and
       convincing evidence. Schnable, 351 Ill. App. at 488-89, 491.
¶ 19        Forever Green’s circumstances differ significantly from the facts in these cases. Unlike in
       Ellman, nothing in the record suggests that Charles Austin intended to or actually misled
       Forever Green or otherwise kept Forever Green in ignorance about the case’s status. As the
       Ellman court explained, the plaintiff has no duty to notify the defendant of the default
       judgment unless the question arose. Ellman, 412 Ill. at 293. Forever Green contacted Charles
       Austin only after the beginning of third-party citation proceedings, nearly three months after

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       the trial court’s February 22, 2013, entry of default judgment. And, unlike in Schnable, the
       only evidence Forever Green presented to impeach the return came from Chow’s and Wang’s
       affidavits, which the trial court considered, at best, dubious. In the words of the trial court,
       “[t]hese affidavits [Chow’s and Wang’s] were almost embarrassing to be presented to the
       Court. These people are putting a spin on things that’s not appropriate[.] *** [Y]ou have to
       remember that you have a responsibility to tell your client *** you have to be truthful with
       the Court, and this was not truthful.” Even putting the trial judge’s comments aside, Chow’s
       assertion that he did “not recall ever receiving a copy of the Amended Complaint” offers
       nothing that approaches the kind of substantial and competent evidence necessary to impeach
       the return of service, as addressed in Pineschi v. Rock River Water Reclamation District, 346
       Ill. App. 3d 719 (2004), a case quite similar to this one.
¶ 20        In Pineschi, a deputy sheriff served a copy of the complaint and summons on the
       defendant. Pineschi, 346 Ill. App. 3d at 721. The defendant failed to answer or appear. Id.
       The trial court awarded the plaintiff a default judgment, and 22 days later, the plaintiff
       mailed a copy of the judgment to the defendant. Id. The defendant then filed a motion to
       vacate the default judgment, arguing the trial court lacked jurisdiction to enter the judgment
       because it had not been properly served. Id. Alternatively, the defendant sought discretionary
       relief under section 2-1401, attaching an affidavit from its registered agent in support. Id. The
       registered agent in an affidavit stated that she “did not recall receiving a summons or
       complaint,” and, if she had, she would have followed normal business procedures to ensure
       the complaint would have been forwarded to the defendant’s claims company. Id. The trial
       court denied the defendant’s motion to vacate the default judgment. Id. at 722.
¶ 21        The appellate court affirmed, initially noting, “[i]f service was satisfactory, then there is
       no reason to conclude that defendant was diligent in handling plaintiff’s lawsuit.” Id. at 723.
       The court concluded that the agent’s assertion that she could not recall receiving the
       complaint or summons did not meet the clear and convincing evidence standard to overcome
       the presumption of service. Id. at 724. Thus, service was proper, and “defendant did not show
       that its failure to appear or answer resulted from anything other than a lack of due diligence.”
       Id.
¶ 22        Chow’s affidavit bears close resemblance to the affidavit in Pineschi. That Chow does
       “not recall ever receiving a copy of the Amended Complaint” does not impeach the sheriff’s
       return of service. Thus, the trial court had personal jurisdiction.

¶ 23                                       Section 2-401 Petition
¶ 24        Forever Green next argues that the trial court erred in denying its section 2-1401 petition
       by: (1) failing to consider Forever Green’s meritorious defense, (2) finding that Forever
       Green lacked diligence in defending the original action, and (3) failing to consider Forever
       Green’s diligence in presenting the section 2-1401 petition.
¶ 25        A petitioner is entitled to relief under section 2-1401 when it sets out specific factual
       allegations, by a preponderance of the evidence, of each of three elements: (1) the existence
       of a meritorious defense or claim; (2) due diligence in presenting the defense or claim to the
       trial court in the original action; and (3) due diligence in filing the section 2-1401 petition.
       People v. Vincent, 226 Ill. 2d 1, 7-8 (2007).



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¶ 26       The parties suggest we apply the abuse of discretion standard of review. But, a section
       2-1401 analysis is two-tiered: (1) the issue of a meritorious defense is a question of law
       subject to de novo review and (2) if a meritorious defense exists, the issue of due diligence is
       subject to abuse of discretion review. See Cavalry Portfolio Services v. Rocha, 2012 IL App
       (1st) 111690, ¶ 10; Rockford Financial Systems, Inc. v. Borgetti, 403 Ill. App. 3d 321, 327-28
       (2010); Blazyk v. Daman Express, Inc., 406 Ill. App. 3d 203, 206 (2010). We will apply the
       de novo standard in determining whether Forever Green presented a meritorious defense, and
       apply the abuse of discretion standard in reviewing whether it complied with the due
       diligence requirements.

¶ 27                                         Meritorious Defense
¶ 28        The amended complaint asserts Forever Green’s liability under a successor liability
       theory. Specifically, Charles Austin claims that Forever Green purchased the business of A-1
       Food subject to its known creditors and the claims of the present lawsuit, and that Forever
       Green and A-1 Food fraudulently entered the sale of assets to avoid liability for Charles
       Austin’s claim.
¶ 29        As a general rule, a corporation that purchases the assets of another corporation is not
       liable for the debts or liabilities of the transferor corporation. Vernon v. Schuster, 179 Ill. 2d
       338, 344-45 (1997). This rule protects bona fide purchasers from unassumed liability. Id. at
       345. There are, however, four exceptions: (1) an express or implied agreement of
       assumption; (2) the transaction amounts to a merger or consolidation of the purchaser or
       seller corporation; (3) the purchaser is a mere continuation of the seller; or (4) the transaction
       is for the fraudulent purpose of escaping liability for the seller’s obligations. Id.
¶ 30        Besides the general rule regarding a purchaser corporation’s liability for the transferor
       corporation’s debts, Forever Green claims there is no express or implied agreement of
       assumption because the contract for the sale of assets does not identify Charles Austin as a
       creditor.
¶ 31        Under the contract, A-1 Food agreed to sell all of its business assets “free and clear of
       any debts, mortgages, security interests or other liens or encumbrances except as herein
       stated.” The contract required A-1 Food furnish Forever Green with a list of existing
       creditors at the time of sale and any persons asserting claims against A-1 Food, even if those
       claims were disputed. A-1 Food, by Jian Bin Zheng, certified that it had no creditors at the
       time of closing. Chow, Forever Green’s attorney and then-registered agent, notarized the
       document at the sale. Based on a literal reading of the contract, Forever Green is liable only
       to those creditors listed by A-1 Food, which were “none at closing.”
¶ 32        The creditor certification that A-1 Food had no creditors at closing was untruthful, and
       Forever Green had the capability and opportunity to perform its own due diligence to inquire
       whether any claims existed that could potentially affect its business and financial condition.
       Indeed, this lawsuit was on file nearly four months before the sale of assets. The record also
       shows that A-1 Food Services was involved in another lawsuit on similar grounds in the
       United States District Court for the Northern District of Illinois. Forever Green merely
       asserts, without citation, that “[y]ou cannot imply assumption of liabilities, where there are
       grounds to expressly provide for it, and A-1 Food affirmatively stated none.” In light of the
       litigation surrounding A-1 Food, Forever Green’s blind acceptance of A-1 Food’s
       certification does not invalidate or nullify the falsity of the certification.

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¶ 33       Forever Green further argues that it could bring a motion to dismiss for failure to state a
       cause of action by claiming Charles Austin failed to plead sufficient facts to suggest that the
       transaction was fraudulent, i.e., actual intent to hinder, delay, or defraud any creditor of the
       debtor.
¶ 34       A fraudulent transfer occurs when the transfer is made with actual intent to hinder, delay,
       or defraud any creditor of the debtor. 740 ILCS 160/5(a)(1) (West 2012). The factors to
       determine intent to hinder, delay, or defraud include: (1) transfer or obligation was to an
       insider; (2) debtor retained possession or control of the property transferred after the transfer;
       (3) transfer or obligation was disclosed or concealed; (4) before the transfer was made or
       obligation was incurred, the debtor had been sued or threatened with suit; (5) transfer was of
       substantially all the debtor’s assets; (6) debtor absconded; (7) debtor removed or concealed
       assets; (8) value of the consideration received by the debtor was reasonably equivalent to the
       value of the asset transferred or the amount of the obligation incurred; (9) debtor was
       insolvent or became insolvent shortly after the transfer was made or the obligation was
       incurred; (10) transfer occurred shortly before or shortly after a substantial debt was incurred;
       and (11) debtor transferred the essential assets of the business to a lienor who transferred the
       assets to an insider of the debtor. 740 ILCS 160/5(b) (West 2012).
¶ 35       In a fact-pleading jurisdiction, like Illinois, a plaintiff must allege sufficient facts to bring
       its claim within the scope of the cause of action asserted. Vernon, 179 Ill. 2d at 344. “A
       complaint must allege, with specificity and particularity, facts from which fraud is the
       necessary or probable inference, including what representations were made, who made them,
       and to whom.” Addison v. Distinctive Homes, Ltd., 359 Ill. App. 3d 997, 1000 (2005).
¶ 36       Charles Austin alleged in the amended complaint that A-1 Food sold its assets to Forever
       Green on May 1, 2012; the present action was pending at the time of sale; the contract
       implies that Forever Green purchased A-1 Food subject to its known creditors; Forever
       Green purchased the business subject to the present action; and, in the alternative, A-1 Food
       made the transaction for the purpose of escaping liability to Charles Austin. Viewing these
       allegations in the light most favorable to Charles Austin, the fourth exception to the rule of
       successor liability, fraud, is a probable inference. From the amended complaint, it follows
       that A-1 Food was indebted to Charles Austin; A-1 Food sold the business and its assets to
       Forever Green; Forever Green impliedly assumed the debts; A-1 Food sold its business assets
       to escape a potential judgment against it in favor of Charles Austin; and Forever Green was a
       party to the fraudulent transaction. Without addressing the merits of the exception, it can
       reasonably be inferred that Charles Austin properly pled the fourth exception to the general
       rule of successor nonliability.
¶ 37       Moreover, Forever Green presents no evidence or cogent legal arguments that counter the
       inference of a fraudulent transfer of corporate assets. The circumstances surrounding this
       transaction are suspect at best since A-1 Food sold all of its corporate assets after Charles
       Austin filed suit and kept the transfer from Charles Austin. In addition, it is unusual that a
       corporation attempting to purchase all of the assets of another corporation would not
       independently investigate the financials of the transferring corporation. Based on the scant
       evidence in the record, we cannot say that Forever Green established, by a preponderance of
       the evidence, that the transaction was not fraudulent. Hence, Forever Green does not have a
       meritorious defense to the original action brought against it by Charles Austin.


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¶ 38                   Diligence in Presenting Defense or Claim in Original Action
¶ 39       Forever Green argues that the trial court erred by determining that Forever Green was not
       diligent in presenting its defense in the original action.
¶ 40       A party relying on section 2-1401 must have a reasonable excuse for failing to act within
       the appropriate time. Smith v. Airoom, Inc., 114 Ill. 2d 209, 222 (1986). Section 2-1401 does
       not relieve a party of the consequences of its own mistakes or negligence. Id. A party relying
       on section 2-1401 must show that its “failure to defend against the lawsuit was the result of
       an excusable mistake and that under the circumstances [it] acted reasonably, and not
       negligently, when [it] failed to initially resist the judgment.” Id. In determining the
       reasonableness of the offered excuse, all of the circumstances surrounding the entry of the
       judgment are considered, including the conduct of the litigants and their attorneys. Id. As
       mentioned, we review the trial court’s determination of due diligence under an abuse of
       discretion standard.
¶ 41       Forever Green claims that Charles Austin did not effectuate proper service of the
       summons and complaint. We have already rejected this argument. Forever Green also claims
       that Charles Austin failed to provide sufficient notice of the motion for default. Specifically,
       Forever Green claims that Charles Austin’s notice of motion for default, filed on February
       15, 2013, went to Chow, who was no longer Forever Green’s registered agent. Forever Green
       also alleges that “common sense and professional courtesy” obliged Charles Austin to inform
       the new registered agent, Wang, or Forever Green’s Indiana counsel who responded to the
       September 2012 subpoena, regarding the default.
¶ 42       Smith v. Airoom, Inc., 114 Ill. 2d 209 (1986), rejects Forever Green’s argument. In
       Airoom, plaintiffs sued Airoom for breach of contract, and Airoom’s sales manager was
       served with summons and a copy of the complaint at its place of business. Airoom, 114 Ill. 2d
       at 215. Airoom failed to answer or appear within 30 days. Id. Without providing notice to
       Airoom, the trial court entered plaintiffs’ motion for a default judgment and continued the
       case for a hearing on damages. Id. Plaintiffs did not give Airoom notice of the hearing on
       damages, and the judgment was entered against Airoom. Id. at 216. Plaintiffs then initiated
       non-wage-garnishment proceedings against Airoom’s bank to satisfy the judgment, after
       which Airoom filed a section 2-1401 petition. The trial court denied the petition on the basis
       that Airoom had not shown diligence. Id. at 220. The Illinois Supreme Court affirmed. Id. at
       231.
¶ 43       The supreme court reasoned that Airoom had ample opportunity to avoid the default
       judgment by filing an answer or appearance, but, instead, relied on out-of-court negotiations
       with plaintiffs to settle the dispute which “did not establish any acceptable excuse for
       [Airoom’s] failure to appear in court after summons was duly served on its agent.” Id. at
       224-25. The court further noted that, because Airoom never filed an appearance, plaintiffs
       were not required to provide notice of their intention to seek a default or of the default
       judgment. Id. at 226. As to the alleged breach of professional courtesy by failing to provide
       notice, the court determined such conduct “does not justify this court’s easing the
       due-diligence requirement.” Id. Once a court acquires jurisdiction over a party, the litigant
       has a duty to track the progress of his or her case. Id. at 227. The court finally noted that,
       although plaintiffs were silent about the entry of the default judgment, no evidence existed
       that the attorney fraudulently concealed the entry of the judgment or otherwise prevented


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       Airoom from knowing of it by “trick or contrivance.” (Internal quotation marks omitted.) Id.
       at 228.
¶ 44       The chronological development of this case demonstrates that Forever Green, like
       Airoom, lacked diligence in presenting its defense to the trial court in the original action.
       Forever Green’s then-registered agent was served with summons and a copy of the complaint
       on October 29, 2012; Forever Green failed to appear and answer; the trial court entered a
       default judgment on February 22, 2013; Charles Austin initiated third-party citation
       proceedings against Forever Green’s bank on May 9, 2013; and Forever Green filed its
       section 2-1401 petition on June 5, 2013, only after the bank froze its bank account. Forever
       Green had ample opportunity to avoid the default judgment by filing its appearance or
       answer. The fact Chow did “not recall” being served is a meaningless excuse. Forever Green
       cannot escape its own negligence or indifference to this lawsuit. Airoom, 114 Ill. 2d at
       224-25. Once the sheriff properly served Chow on October 29, 2012, Forever Green had to
       appear and either answer or otherwise plead, and, in addition, stay informed of the lawsuit’s
       progress.
¶ 45       The trial court determined that Forever Green lacked diligence in presenting its defense
       in the original action. On January 10, 2013, before transfer of Forever Green’s registered
       agent, the trial court entered and granted default and continued the matter for prove-up.
       Regarding Forever Green’s diligence, the trial court said, “there is no diligence shown ***.
       There’s a history here of ignoring the Court’s orders, and ignoring the summons that was
       served on it. Then from February until May when we wait until citation proceedings and
       that’s the first the client purportedly has heard about this, I find that not worthy of my trust or
       belief.” We have read the record and agree with the trial court’s conclusion.
¶ 46       Forever Green claims equity demands the court vacate the judgment. The Illinois
       Supreme Court, however, has explained, “[w]hen the legislature abolished the writs in favor
       of today’s statutory remedy, it became inaccurate to continue to view the relief in strictly
       equitable terms. Moreover, this court’s application of civil practice rules and precedent
       factored out any notions about a trial court’s ‘discretion’ to do justice.” Vincent, 226 Ill. 2d at
       16. Thus, this court is not bound to reverse the trial court on equitable grounds. Regardless,
       the trial court observed that Forever Green failed to show diligence, ignored the summons
       properly served on it, and failed to appear or defend itself until after third-party citation
       proceedings began. No evidence indicates Forever Green’s failure to appear and defend itself
       resulted from anything other than its own negligence.

¶ 47                           Diligence in Filing Section 2-1401 Petition
¶ 48       Lastly, Forever Green argues the trial court erred in finding it failed to exercise due
       diligence in filing the petition to vacate the default judgment. No bright-line rule exists for
       determining whether a petitioner acted diligently. Paul v. Gerald Adelman & Associates, Ltd.,
       223 Ill. 2d 85, 99-100 (2006). “[D]ue diligence is judged by the reasonableness of the
       petitioner’s conduct under all of the circumstances.” Id.
¶ 49       Forever Green filed its petition only after its bank account was frozen. Even if we were to
       find diligence, this conclusion would not be dispositive–a petitioner must establish all three
       elements to warrant relief under section 2-1401. Vincent, 226 Ill. 2d at 7-8. Because we
       conclude that Forever Green did not have a meritorious defense and was not diligent in
       defending the original action, we need not discuss this final element.

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¶ 50                     Failure to Comply With Trial Court’s Standing Orders
¶ 51      Finally, Forever Green contends that Charles Austin violated the trial court’s standing
       order and checklist. Forever Green, however, never raised this contention before the trial
       court and, thus, waived it and cannot bring it for the first time on appeal. Village of Roselle v.
       Commonwealth Edison Co., 368 Ill. App. 3d 1097, 1109 (2006).

¶ 52                                      CONCLUSION
¶ 53      We affirm the judgment of the circuit court.

¶ 54      Affirmed.




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