NO. 4-01-0998

	IN THE APPELLATE COURT

	OF ILLINOIS

	FOURTH DISTRICT

THE ILLINOIS LICENSED BEVERAGE

ASSOCIATION, INC., an Illinois Not-

for-Profit Corporation, Individually

and on Behalf of its Members,

	Plaintiff-Appellee,

	v.

ADVANTA LEASING SERVICES, a Division

of Advanta Bank Corporation; MARK B.

BALOTTI; RENEE RICHAU; LINDELL LARRY

BITTLE; PAUL RIBAU; MARK LEWIS; TOM

DOUGHERTY; and PAT GALVIN,

	Defendants-Appellants,

	and

PREFERRED CAPITAL, INC.; MARLIN

LEASING CORPORATION; QL CAPITAL,

INC.; LIBERTY LEASING COMPANY, a

Division of Commercial Federal Bank,

	Defendants.	)

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)	Appeal from

Circuit Court of

Sangamon County

No. 01MR255

Honorable

Robert J. Eggers,

Judge Presiding.

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	JUSTICE STEIGMANN delivered the opinion of the court:

	Section 2-1001(a)(2)(ii) of the Code of Civil Procedure

(Code) provides that a party's motion for substitution of judge

as of right must be granted if the motion "is presented before

trial or hearing begins and before the judge to whom it is

presented has ruled on any substantial issue in the case."  735

ILCS 5/2-1001(a)(2)(ii) (West 2000).  In this case, we consider

whether a trial court's ruling, made at a time the court was

without jurisdiction to act, meets the criteria of section 2-

1001(a)(2)(ii) of the Code, so as to preclude a party after that

ruling from obtaining the substitution of judge.  We hold that it

does not.

	I. BACKGROUND

	In May 2001, plaintiff, the Illinois Licensed Beverage

Association (ILBA), on behalf of itself and its members, filed a

complaint for declaratory and injunctive relief and damages

against (1) JRA 222 Corporation, d/b/a Credit Card Center (CCC);

(2) Information Leasing Corporation and defendants Advanta

Leasing Services (Advanta), Preferred Capital, Inc., Marlin

Leasing Corporation, QL Capital, Inc., and Liberty Leasing

Company (collectively, leasing companies); and (3) individual

defendants, Mark B. Balotti, Renee Richau, Lindell Larry Bittle,

Paul Ribau, Mark Lewis, Tom Dougherty, and Pat Galvin.

	In June 2001, CCC filed a bankruptcy petition under

chapter 11 of title 11 of the United States Code (Bankruptcy

Code) (11 U.S.C. §1101 et seq. (2000)).  On July 9, 2001, ILBA filed in Sangamon County circuit court (trial court) a motion for

a preliminary injunction against the leasing companies, seeking,

in pertinent part, to enjoin the leasing companies from taking

legal action against any of ILBA's members with whom the leasing

companies had entered contracts for the rental of automated

teller machines (ATMs).  On July 17, 2001, Advanta filed in the

trial court a notice stating that the case had been removed to

the United States Bankruptcy Court (bankruptcy court).  Following

a July 18, 2001, hearing, the trial court granted ILBA's motion

for a preliminary injunction.

	Later that month, the bankruptcy court entered an order

declaring void any actions the trial court had taken after the July 17, 2001, filing of the removal notice.  In August 2001,

ILBA voluntarily dismissed CCC as a defendant.  On September 5,

2001, the bankruptcy court remanded the case to the trial court,

upon finding that, in light of CCC's dismissal, it no longer had

jurisdiction.

	On September 11, 2001, ILBA filed a motion to reinstate

the trial court's July 18, 2001, preliminary injunction.  On

September 19, 2001, before the court ruled on ILBA's motion,

Advanta filed a motion for substitution of judge as of right

pursuant to section 2-1001(a)(2) of the Code (735 ILCS 5/2-

1001(a)(2) (West 2000)).  In October 2001, the court denied

Advanta's motion for substitution of judge, and in November 2001,

the court entered another order granting a preliminary injunction

against the leasing companies.

	On appeal, Advanta argues that the trial court (1)

erred by denying its motion for substitution of judge as of

right; and (2) abused its discretion by granting ILBA's motion

for a preliminary injunction because (a) ILBA failed to satisfy

the requirements for a preliminary injunction, (b) the agreements

between ILBA members and the leasing companies under which the

dispute arose provide that such disputes shall be resolved in New

Jersey court; and (c) ILBA lacked standing to sue and failed to

name necessary parties.  Because we agree with Advanta's first

argument, we reverse and remand for further proceedings.

	A. The Nature of the Parties and the Initial Complaint

	According to ILBA's May 2001 complaint, ILBA is a nonprofit association whose members principally consist of

restaurants, bars, liquor stores, fraternal clubs, and recre

ational facilities that sell alcoholic beverages to the public. 

In September 1999, ILBA entered into an agreement with CCC, which

provided, in pertinent part, that (1) CCC would pay ILBA $200 for

each ATM it sold or leased to ILBA members, plus five cents per

transaction on all such ATMs; (2) CCC would pay ILBA members 90%

of the "total swipe surcharge" at their respective ATMs, instead

of the standard 85%; and (3) in exchange, ILBA would (a) grant

CCC exclusive rights to solicit its members to buy or lease ATMs

for use on their premises, and (b) provide CCC with a list of its

members.

	ILBA's complaint alleged that between September 1999

and March 2001, CCC's representatives, including Balotti, Richau,

Bittle, Ruhan, and Lewis, communicated to ILBA members that if

they agreed to lease an ATM from CCC for $269 per month, they

would be guaranteed to receive $264 per month from advertising

and transaction fees, plus $1.35 each time the ATM was used.  In

reliance on such representations, over 100 ILBA members entered

"Merchant Processing Agreements" and "ATM Advertising Agreements"

with CCC.  CCC representatives also obtained ILBA members'

signatures on separate agreements for the lease of the ATMs. 

Although the ILBA members believed they were entering into lease

agreements with CCC, they were in fact entering into leases with

one of the leasing companies.   

	In August 2000, CCC started failing to make payments to ILBA and ILBA's members.  Because the ILBA members' equipment

leases were not with CCC, the members were bound to continue to

pay their lessors $269 per month, even though they were not

receiving any of the money they had been guaranteed under their

agreements with CCC.  

	ILBA's complaint further alleged that CCC had fraudu

lently induced ILBA members to enter lease agreements with the

leasing companies.  As relief, ILBA requested that the trial

court (1) declare the equipment leases null and void; (2) enjoin

the leasing companies from enforcing any default or collection of

any lease payments from ILBA members until final resolution of

the case on the merits; and (3) award damages for breach of

contract and common-law fraud and deceit.  (At some point after

ILBA filed its complaint, it voluntarily dismissed as defendants

Information Leasing Corp., Marlin Leasing Corporation, and

Liberty Leasing Company.)

	In June 2001, CCC filed a bankruptcy petition under

chapter 11 of the federal Bankruptcy Code (11 U.S.C. §1101 et seq. (2000)). 

	B. The Preliminary Injunction Proceedings

	On July 9, 2001, ILBA filed a motion for a preliminary

injunction, requesting that the trial court (1) enjoin the

leasing companies from declaring defaults under the equipment

leases or continuing any litigation against ILBA's members

pending resolution on the merits; and (2) authorize ILBA members

to deposit unpaid outstanding lease payments into an escrow account subject to the court's ongoing jurisdiction.

	On July 17, 2001, Advanta filed its notice of removal

to the bankruptcy court.  At a July 18, 2001, hearing on ILBA's

motion for a preliminary injunction, Advanta objected to the

trial court's jurisdiction based on the removal to bankruptcy

court.  The trial court denied Advanta's objection and proceeded

on ILBA's motion for a preliminary injunction.  After considering

the parties' arguments on the merits, the court granted ILBA's

motion.

	C. Action in the Bankruptcy Court

	In July 2001, Advanta filed in the bankruptcy court a

motion to vacate the trial court's July 18, 2001, preliminary

injunction order.  On July 31, 2001, the bankruptcy court entered

an order declaring that any action taken in the trial court after

July 17, 2001, including that court's July 18, 2001, order, was

void and a nullity.  The bankruptcy court's order stated, in

pertinent part, as follows: 

		"After hearing the arguments of counsel,

the [c]ourt finds this case was removed from

the Sangamon County [c]ircuit [c]ourt to the

U.S. Bankruptcy Court for the Central Dis

trict of Illinois on July 17, 2001.  The

[c]ourt further finds that pursuant to Rule

9027(c) of the Federal Rules of Bankruptcy

Procedure, the removal of the case was ef

fected upon the filing of the [n]otice of [r]emoval in the Sangamon County [c]ircuit

[c]ourt on July 17, 2001.  The [c]ourt fur

ther finds that any action in the case by the

Sangamon County [c]ircuit [c]ourt after the

case was removed on July 17, 2001[,] to the

U.S. Bankruptcy Court for the Central Dis

trict of Illinois was void and is a nullity. 

Specifically, the [c]ourt further finds that

the [p]reliminary [i]njunction entered by the

Sangamon County [c]ircuit [c]ourt on July 18,

2001, after the case was removed to the U.S.

Bankruptcy Court for the Central District of

Illinois, was void and is a nullity.

		The [c]ourt hereby orders that the

rights and remedies available to the parties

prior to the entry of the [p]reliminary

[i]njunction on July 18, 2001[,] are restored

without waiver of any rights and remedies

available to the parties.  The court further

orders that the escrow account ordered by the

Sangamon County [c]ircuit [c]ourt to serve as

a depository for the deposit of lease pay

ments to the [d]efendants be closed and the

funds distributed to the [d]efendants in

accordance with the lease agreements between

the parties.  The [c]ourt further orders, pursuant to Rule 9027(c) of the Federal Rules

of Bankruptcy Procedure, that the parties

proceed no further in the Sangamon County

[c]ircuit [c]ourt in this case until further

order of the [c]ourt."

	On August 24, 2001, ILBA voluntarily dismissed CCC as a

defendant in this case.  On September 5, 2001, the bankruptcy

court remanded the case to the trial court, upon finding that

based on CCC's dismissal as a party defendant, the bankruptcy

court no longer had jurisdiction over the case.

	D. Trial Court Action After Bankruptcy Court Remand

	On September 11, 2001, ILBA filed in the trial court a

motion seeking to reinstate the court's July 18, 2001, prelimi

nary injunction order.  Advanta objected on the ground that it

had appealed the bankruptcy court's September 5, 2001, remand

order.  (In March 2002, the United States District Court for the

Central District of Illinois affirmed the bankruptcy court's

remand order (No. 01-3358, March 14, 2002).)

	On September 19, 2001, Advanta filed in the trial court

a motion for substitution of judge as of right, pursuant to

section 2-1001(a)(2) of the Code (735 ILCS 5/2-1001(a)(2) (West

2000)).  Following an October 4, 2001, hearing, the court entered

an order (1) denying Advanta's motion for substitution of judge

as of right, and (2) enjoining Advanta from prosecuting any

action against ILBA members, effective through October 11, 2001,

the date set for a hearing on ILBA's preliminary injunction motion.  

	In November 2001, the trial court entered another order

granting a preliminary injunction against the leasing companies. 

The court also ordered that Advanta "shall take no action to

obtain a judgment against any of the ILBA members on the leases,

and all payments on the leases shall be placed in an escrow

account pending further order by the [c]ourt."  This appeal

followed.

	II. ANALYSIS

	A. Motions for Substitution of Judge as of Right 

Under Section 2-1001(a)(2) of the Code

	Civil litigants in Illinois are entitled to one substi

tution of judge without cause as a matter of right.  735 ILCS

5/2-1001(a)(2)(i) (West 2000).  The trial court must grant a

party's motion for substitution of judge as of right if the

motion "is presented before trial or hearing begins and before

the judge to whom it is presented has ruled on any substantial

issue in the case."  735 ILCS 5/2-1001(a)(2)(ii) (West 2000); Rodisch v. Commacho-Esparza, 309 Ill. App. 3d 346, 350, 722 N.E.2d 326, 329 (1999).  Section 2-1001(a)(2) of the Code is "to

be liberally construed, and where the conditions are met, the

trial court has no discretion to deny the request unless it is

shown that the motion was made simply to delay or avoid trial." 

Sahoury v. Moses, 308 Ill. App. 3d 413, 414, 719 N.E.2d 1157, 1158 (1999).  Since the trial court has no discretion to deny a proper motion for substitution of judge as of right, the issue of whether there has been a ruling on a substantial issue in the

case presents a question of law and our review is de novo.  Rodisch, 309 Ill. App. 3d at 350, 722 N.E.2d at 329.  Orders entered after a motion for substitution of judge has been improp

erly denied are void.  Jiffy Lube International, Inc. v. Agarwal, 277 Ill. App. 3d 722, 727, 661 N.E.2d 463, 467 (1996); see also

Scroggins v. Scroggins, 327 Ill. App. 3d 333, 336, 762 N.E.2d 1195, 1198 (2002).

	B. Advanta's Motion for Substitution of Judge as of Right

	Advanta argues that the trial court erred by denying

its motion for substitution of judge as of right.  Specifically,

Advanta contends that although the court's July 18, 2001, prelim

inary injunction order was a substantial order that would ordi

narily preclude its granting a motion for substitution of judge

as of right, in this case it should not have been the basis for

denying Advanta's motion because it was entered when the trial

court did not have jurisdiction and, thus, was void and a nul

lity.  ILBA responds that the court properly denied Advanta's

motion for substitution of judge as of right because (1) the

preliminary injunction order manifested the court's position on

issues in the case, and (2) granting the motion would allow

Advanta to forum shop.  We agree with Advanta.

	Upon the filing of a sufficient removal petition, the

state court's jurisdiction immediately and totally ceases and

that of the federal court immediately attaches.  After such

removal, only the federal court can restore jurisdiction to the state court.  Moubry v. Kreb, 58 F. Supp. 2d 1041, 1047 (D. Minn. 1999).  When the cause appears to be removable, it is "the duty

of the state court to recognize the removal and proceed no

further" and to yield jurisdiction to the federal court.  The

state court has no discretion in the matter, and subsequent

proceedings therein, except for the order of removal, are void. 

The state court should not resume consideration of the cause

unless and until it is finally decided in the federal court that

the cause was not removable.  Hunnewell v. Palm VBweaeach County, 786 So. 2d 4, 5-6 (Fla. Dist. Ct. App. 2000), citing 76 C.J.S. Removal of Causes §221, at 1088.  Some federal courts hold that a state court's orders entered after removal are void even if it is later

determined that the removal was not proper.  See, e.g., Hyde Park Partners, L.P. v. Connolly, 839 F.2d 837, 842 (1st Dist. 1988); Hunnewell, 786 So. 2d at 5 (noting a split of authority on the question).

	In this case, because the removal took effect on July

17, 2001, the trial court was without jurisdiction to conduct the

July 18, 2001, hearing on ILBA's motion for preliminary injunc

tion.  Therefore, the court's preliminary injunction order is

void.  As the bankruptcy court explained in its July 31, 2001,

order, the parties were entitled to all the rights and remedies

which were available to them before the trial court's July 18,

2001, preliminary injunction order was entered.  See Siddens v. Industrial Comm'n, 304 Ill. App. 3d 506, 511, 711 N.E.2d 18, 21 (19979) (a judgment entered by a court lacking subject-matter jurisdiction is void and a void order is "a complete nullity from

its inception and has no legal effect"); National Bank of Monmouth v. Multi National Industries, Inc., 286 Ill. App. 3d 638, 640, 678 N.E.2d 7, 9 (1997) (void orders do not change the

status of a case).  Accordingly, when the federal court remanded

the case to the trial court, Advanta was entitled to a substitu

tion of judge as of right under section 2-1001(a)(2) of the Code. 

735 ILCS 5/2-1001(a)(2) (West 2000).

	ILBA nevertheless contends that the trial court prop

erly denied Advanta's motion for substitution of judge as of

right because Advanta allegedly engaged in "forum shopping" when

it knowingly filed a defective removal petition and then "tested

the waters" by appearing at the July 18, 2001, hearing to defend

against ILBA's motion for a preliminary injunction, all the while

knowing that the case would be remanded to the trial court. 

ILBA's contention is belied by the fact that Advanta defended

against ILBA's motion on the merits only after objecting to the

trial court's jurisdiction.  In addition, the bankruptcy court

did not remand the case due to a deficiency in the removal. 

Rather, it remanded the case after ILBA dismissed CCC as a

defendant, which left the bankruptcy court without jurisdiction

over the remaining parties, none of which were bankruptcy debt

ors.

	Moreover, a movant's right to substitution of judge as

of right is absolute, and the trial court does not have discre

tion to consider whether the movant had an opportunity to "test the waters."  See Scroggins, 327 Ill. App. 3d at 336, 726 N.E.1d at 1198 (holding that the current version of section 2-1001(a)(2)

of the Code does not require consideration of the movant's

motivation or opportunity to "test the waters"). 

	We are similarly unpersuaded by ILBA's contention that 

Advanta forfeited the right to object to the trial court's

jurisdiction at the July 18, 2001, hearing by appearing and

arguing against ILBA's motion for preliminary injunction on the

merits.  All of the cases ILBA cites in support of this argument

relate to personal jurisdiction, not subject-matter jurisdiction. 

Segers v. Industrial Comm'n, 191 Ill. 2d 421, 427, 732 N.E.2d 488, 492 (2000). 

	Because the trial court's July 18, 2001, preliminary

injunction order is void and a nullity, it cannot be considered a

"substantial ruling" in the case under section 2-1001(a)(2)(ii)

of the Code, and the court erred by denying Advanta's motion for

substitution of judge as of right.  Accordingly, we reverse the

court's order denying Advanta's motion for substitution of judge

as of right.  We also reverse the court's October and November

2001 orders granting ILBA injunctive relief.  See Scroggins, 327 Ill. App. 3d at 336, 762 N.E.2d at 1198 (reversing the trial

court's orders entered after it improperly denied a motion for

substitution of judge as of right).  

	In light of our decision on this issue, we need not

address Advanta's other claims of error.

	III. CONCLUSION

	For the reasons stated, we reverse the trial court's

orders (1) denying Advanta's motion for substitution of judge as

of right and (2) granting ILBA injunctive relief, and we remand

for further proceedings.

	Reversed and remanded.

	KNECHT and COOK, JJ., concur.