Judiciary I - Civil Law Committee
Adopted in House Comm. on Feb 24, 2010
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| 1 | AMENDMENT TO HOUSE BILL 4931
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| 2 | AMENDMENT NO. ______. Amend House Bill 4931, AS AMENDED, by | ||||||
| 3 | replacing everything after the enacting clause with the | ||||||
| 4 | following:
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| 5 | "Section 5. The Code of Civil Procedure is amended by | ||||||
| 6 | changing Sections 2-403 and 2-606 as follows: | ||||||
| 7 | (735 ILCS 5/2-403) (from Ch. 110, par. 2-403) | ||||||
| 8 | Sec. 2-403. Who may be plaintiff - Assignments - | ||||||
| 9 | Subrogation. (a) The assignee and owner of a non-negotiable | ||||||
| 10 | chose in action may
sue thereon in his or her own name. Such | ||||||
| 11 | person shall in his or her pleading
on oath allege
that he or | ||||||
| 12 | she is the actual bona fide owner thereof. An assignee shall | ||||||
| 13 | identify with specificity how he or she came to acquire title | ||||||
| 14 | to the chose in action, including the name of the original | ||||||
| 15 | owner of the chose in action , and set forth how and
when he or | ||||||
| 16 | she acquired title. The action is subject to any defense or
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| 1 | set-off
existing before notice of the assignment. | ||||||
| 2 | (b) In all cases in which the chose in action consists of | ||||||
| 3 | wages due
or to become due to the assignor thereof from the | ||||||
| 4 | defendant in the
action, at least 5 days' written notice of the | ||||||
| 5 | pendency of the action
shall be served upon the assignor, | ||||||
| 6 | before the trial of the same. Upon
application of the assignor | ||||||
| 7 | of the chose in action the court shall allow
him or her to | ||||||
| 8 | intervene and be made a party to the action.
The assignor, or | ||||||
| 9 | the
defendant to the action on behalf of the assignor, shall be | ||||||
| 10 | allowed to set
up or affirmatively maintain any just setoff, | ||||||
| 11 | discount or defense which
the assignor may have to the | ||||||
| 12 | assignment of the chose in action, or to the
indebtedness, the | ||||||
| 13 | payment of which is secured by the assignment of the chose
in | ||||||
| 14 | action. The
court, by jury or otherwise, shall ascertain the | ||||||
| 15 | amount of the
indebtedness remaining due and unpaid from the | ||||||
| 16 | assignor to the assignee
of the chose in action. The judgment, | ||||||
| 17 | if any, against the defendant
shall not exceed the amount so | ||||||
| 18 | found to be due and unpaid from the
assignor to the assignee of | ||||||
| 19 | the chose in action. Judgment for the
balance, if any, | ||||||
| 20 | remaining due from the defendant, upon the assigned
chose in | ||||||
| 21 | action, shall be rendered in favor of the assignor and against
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| 22 | the defendant in the action or proceeding. The court may
enter | ||||||
| 23 | any order
as to costs in the proceeding that may be equitable. | ||||||
| 24 | (c) Any action hereafter brought by virtue of the | ||||||
| 25 | subrogation
provision of any contract or by virtue of | ||||||
| 26 | subrogation by operation of
law shall be brought either in the | ||||||
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| 1 | name or for the use of the subrogee;
and the subrogee shall in | ||||||
| 2 | his or her pleading on oath,
or by his or her
affidavit if | ||||||
| 3 | pleading is not required, allege that he or she is the actual | ||||||
| 4 | bona
fide subrogee and set forth how and when he or she became | ||||||
| 5 | subrogee. | ||||||
| 6 | (d) A judgment in an action brought and conducted by a | ||||||
| 7 | subrogee by
virtue of the subrogation provision of any contract | ||||||
| 8 | or by virtue of any
subrogation by operation of law, whether in | ||||||
| 9 | the name of the subrogor or
otherwise, is not a bar or a | ||||||
| 10 | determination on the merits of the case or
any aspect thereof | ||||||
| 11 | in an action by the subrogor to recover upon any
other cause of | ||||||
| 12 | action arising out of the same transaction or series of
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| 13 | transactions. | ||||||
| 14 | (Source: P.A. 83-707.) | ||||||
| 15 | (735 ILCS 5/2-606) (from Ch. 110, par. 2-606) | ||||||
| 16 | Sec. 2-606. Exhibits. If a claim or defense is founded upon | ||||||
| 17 | a written instrument, a copy
thereof, or of so much of the same | ||||||
| 18 | as is relevant, must be attached to
the pleading as an exhibit | ||||||
| 19 | or recited therein, unless the pleader
attaches to his or her | ||||||
| 20 | pleading an affidavit stating facts showing that the
instrument | ||||||
| 21 | is not accessible to him or her. In pleading any written | ||||||
| 22 | instrument
a copy thereof may be attached to the pleading as an | ||||||
| 23 | exhibit. In either
case the exhibit constitutes a part of the | ||||||
| 24 | pleading for all purposes. If a written assignment is recited | ||||||
| 25 | in the complaint, a copy must be provided to the defendant upon | ||||||
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| 1 | request. This Section applies to all actions, including small | ||||||
| 2 | claims actions. | ||||||
| 3 | (Source: P.A. 82-280.)
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| 4 | Section 98. Applicability. The changes made by this | ||||||
| 5 | amendatory Act of the 96th General Assembly apply to actions | ||||||
| 6 | commenced on or after the effective date of this amendatory Act | ||||||
| 7 | of the 96th General Assembly.".
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