Full Text of HB0530 96th General Assembly
HB0530ham001 96TH GENERAL ASSEMBLY
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Judiciary I - Civil Law Committee
Filed: 3/11/2009
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| AMENDMENT TO HOUSE BILL 530
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| AMENDMENT NO. ______. Amend House Bill 530 by replacing | 3 |
| everything after the enacting clause with the following:
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| "Section 5. The Code of Civil Procedure is amended by | 5 |
| changing Sections 2-1303, 12-805, 12-808, and 12-811 as | 6 |
| follows:
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| (735 ILCS 5/2-1303) (from Ch. 110, par. 2-1303)
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| Sec. 2-1303. Interest on judgment. | 9 |
| (a) Judgments recovered in
any court shall draw interest at | 10 |
| the rate of 9% per annum from the date
of the judgment until | 11 |
| satisfied or 6% per annum when the judgment debtor is a unit
of | 12 |
| local government, as defined in Section 1 of Article VII of the | 13 |
| Constitution,
a school district, a community college district, | 14 |
| or any other governmental
entity ; provided that if the judgment | 15 |
| debtor qualifies for relief under subsection (b), the court may | 16 |
| reduce the interest rate to as low as 3% per annum . When |
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| judgment is entered upon any award, report or verdict, interest
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| shall be computed at the above rate, from the time when made or | 3 |
| rendered
to the time of entering judgment upon the same, and | 4 |
| included in the judgment.
Interest shall be computed and | 5 |
| charged only on the unsatisfied portion of
the judgment as it | 6 |
| exists from time to time. The judgment debtor may by
tender of | 7 |
| payment of judgment, costs and interest
accrued to the date of | 8 |
| tender, stop the further accrual of interest on such
judgment | 9 |
| notwithstanding the prosecution of an appeal, or other steps to
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| reverse, vacate or modify the judgment.
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| (b) The court may, pursuant to Section 12-811, enter an | 12 |
| order reducing the amount of wages withheld and reducing the | 13 |
| rate of interest a judgment debtor is obligated to pay on the | 14 |
| judgment, if the court finds that the judgment debtor is a | 15 |
| "family supporter" and the full wage garnishment would result | 16 |
| in a denial of necessities to the judgment debtor's dependent. | 17 |
| The term "family supporter" means an individual who actually | 18 |
| supports and resides with one or more dependents. The term | 19 |
| "dependent" means a child under the age of 18 who resides with | 20 |
| and is supported by the judgment debtor or a disabled person | 21 |
| who resides with and is supported by the judgment debtor and | 22 |
| whose relationship with the judgment debtor is that of parent, | 23 |
| stepparent, son, daughter, sibling, uncle, aunt, grandparent, | 24 |
| or ward. A reduction in the rate of interest on a judgment | 25 |
| ordered by the court shall be prospective only and shall not be | 26 |
| below 3% per annum. Subsequent to the entry of an order |
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| reducing the rate of interest on a judgment pursuant to this | 2 |
| subsection, any party may request that a prospective | 3 |
| readjustment in the rate be made, based on a relevant change in | 4 |
| circumstances. | 5 |
| (Source: P.A. 85-907.)
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| (735 ILCS 5/12-805) (from Ch. 110, par. 12-805)
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| Sec. 12-805. Summons; Issuance.
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| (a) Upon the filing by a judgment creditor, its attorney or | 9 |
| other designee
of (1) an affidavit that the affiant believes | 10 |
| any person is indebted to the
judgment debtor for wages due or | 11 |
| to become due, as provided in Part 8 of
Article XII of this | 12 |
| Act, and includes the last address of the judgment
debtor known | 13 |
| to the affiant as well as the name of the judgment debtor, and
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| a certification by the judgment creditor or his attorney that, | 15 |
| before
filing the affidavit, the wage deduction notice has been | 16 |
| mailed to the
judgment debtor by first class mail at the | 17 |
| judgment debtor's last known
address, and (2) written | 18 |
| interrogatories to be answered by the employer
with respect to | 19 |
| the indebtedness, the clerk of the court in which the
judgment | 20 |
| was entered shall issue summons against the person named in the
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| affidavit as employer commanding the employer to appear in the | 22 |
| court and
answer the interrogatories in writing under oath. The | 23 |
| interrogatories shall
elicit all the information necessary to | 24 |
| determine the proper amount of
non-exempt wages. The | 25 |
| interrogatories shall require that the employer
certify that a |
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| copy of the completed interrogatories as specified in
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| subsection (c) of Section 12-808 has been mailed or hand | 3 |
| delivered to the
judgment debtor and shall be in a form | 4 |
| consistent with local court rules.
The summons shall further | 5 |
| command federal agency employers, upon effective
service of | 6 |
| summons pursuant to 5 USC 5520a, to commence to pay over | 7 |
| deducted
wages in accordance with Section 12-808.
The summons | 8 |
| shall be in a form consistent with local court rules. The
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| summons shall be accompanied by a copy of the underlying | 10 |
| judgment or a
certification by the clerk of the court that | 11 |
| entered the judgment, or by
the attorney for the judgment | 12 |
| creditor, setting forth the date and amount
of the
judgment,
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| allowable costs expended, interest accumulated, credits paid | 14 |
| by or on behalf
of the judgment debtor and the balance due the | 15 |
| judgment creditor, and one copy of
a wage deduction notice in | 16 |
| substantially the following form:
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| "WAGE DEDUCTION NOTICE
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| (Name and address of Court)
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| Name of Case: (Name of Judgment Creditor),
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| Judgment Creditor v.
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| (Name of Judgment Debtor),
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| Judgment Debtor.
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| Address of Judgment Debtor: (Insert last known address)
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| Name and Address of Attorney for Judgment
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| Creditor or of Judgment Creditor (if no
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| attorney is listed): (Insert name and address)
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| Amount of Judgment: $..........
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| Employer: (Name of Employer)
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| Return Date: (Insert return date specified in summons)
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| NOTICE: The court shall be asked to issue a wage deduction | 5 |
| summons against
the employer named above for wages due or about | 6 |
| to become due to you.
The wage deduction summons may be issued | 7 |
| on the basis of a judgment against
you in favor of the judgment | 8 |
| creditor in the amount stated above.
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| The amount of wages that may be deducted is limited by | 10 |
| federal and
Illinois law.
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| (1) Under Illinois law, the amount of wages that may be | 12 |
| deducted is
limited to the lesser of (i) 15% of gross | 13 |
| weekly wages or (ii) the amount
by which disposable | 14 |
| earnings for a week exceed the total of 45 times the
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| federal minimum hourly wage or, under a wage deduction | 16 |
| summons served on or after January 1, 2006, the minimum | 17 |
| hourly wage prescribed by Section 4 of the Minimum Wage | 18 |
| Law, whichever is greater.
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| (2) Under federal law, the amount of wages that may be | 20 |
| deducted is
limited to the lesser of (i) 25% of disposable | 21 |
| earnings for a week or (ii)
the amount by which disposable | 22 |
| earnings for a week exceed 30 times the
federal minimum | 23 |
| hourly wage.
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| (3) Pension and retirement benefits and refunds may be | 25 |
| claimed as
exempt from wage deduction under Illinois law.
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| (4) Under Illinois law, the court may enter an order |
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| reducing the amount of wages withheld and reducing the rate | 2 |
| of interest a judgment debtor is obligated to pay on the | 3 |
| judgment, if the court finds that the judgment debtor is a | 4 |
| "family supporter" and the full wage garnishment would | 5 |
| result in a denial of necessities to the judgment debtor's | 6 |
| dependent. | 7 |
| You have the right to request a hearing before the court
to | 8 |
| dispute the wage deduction because either the wages are exempt . | 9 |
| or you are a "family supporter" and are requesting (1) a | 10 |
| reduction in the amount of the wage garnishment because the | 11 |
| full wage garnishment would result in a denial of necessities | 12 |
| to your dependent or (2) a reduction in the interest rate on | 13 |
| the judgment if the court determines that you are a family | 14 |
| supporter and entitled to relief taking into consideration the | 15 |
| needs of your dependent and your ability to meet those needs. | 16 |
| "Dependent" means a child under the age of 18 who resides with | 17 |
| and is supported by the judgment debtor or a disabled person | 18 |
| who resides with and is supported by the judgment debtor and | 19 |
| whose relationship with the judgment debtor is that of parent, | 20 |
| stepparent, son, daughter, sibling, uncle, aunt, grandparent, | 21 |
| or ward. You are a “family supporter” if you actually support | 22 |
| and reside with a child under the age of 18 or you reside with | 23 |
| and support a disabled person who is your parent, stepparent, | 24 |
| son, daughter, sibling, uncle, aunt, grandparent, or ward. To | 25 |
| obtain a
hearing in counties with a population of 1,000,000 or | 26 |
| more, you
must notify the Clerk of the Court in person and in |
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| writing at (insert
address of Clerk) before the Return Date | 2 |
| specified above or appear
in court on the date and time on that | 3 |
| Return Date. To obtain a
hearing in counties with a population | 4 |
| of less than 1,000,000, you
must notify the Clerk of the Court | 5 |
| in writing at (insert address of
clerk) on or before the Return | 6 |
| Date specified above.
The Clerk of the Court will provide a | 7 |
| hearing date and the necessary
forms that must be prepared by | 8 |
| you or your attorney and
sent to the judgment creditor and the | 9 |
| employer, or their attorney,
regarding the time and location of | 10 |
| the hearing. This notice may be sent by
regular first class | 11 |
| mail."
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| (b) In a county with a population of less than 1,000,000, | 13 |
| unless otherwise
provided by circuit court rule, at the request | 14 |
| of the judgment creditor or his
or her attorney and instead of | 15 |
| personal service, service of a summons for a
wage deduction may | 16 |
| be made as follows:
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| (1) For each employer to be served, the judgment | 18 |
| creditor or his or her
attorney shall pay to the clerk of | 19 |
| the court a fee of $2, plus the cost of
mailing, and | 20 |
| furnish to the clerk an original and one copy of a
summons, | 21 |
| an original and one copy of the interrogatories and an | 22 |
| affidavit
setting forth the employer's mailing address, an | 23 |
| original and one copy of
the wage deduction notice required | 24 |
| by subsection (a) of this Section, and a
copy of the | 25 |
| judgment or certification described in subsection (a) of | 26 |
| this
Section. The original judgment shall be
retained by |
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| the clerk.
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| (2) The clerk shall mail to the employer, at the | 3 |
| address appearing in the
affidavit, the copy of the | 4 |
| judgment
or certification described in subsection (a) of | 5 |
| this Section, the summons,
the interrogatories, and the | 6 |
| wage deduction notice required by subsection (a)
of this | 7 |
| Section, by certified or registered mail, return
receipt | 8 |
| requested, showing to whom delivered and the date and | 9 |
| address of
delivery. This Mailing shall be mailed on a | 10 |
| "restricted delivery"
basis when service is directed to a | 11 |
| natural person. The envelope and return
receipt shall bear | 12 |
| the return address of the clerk, and the return receipt
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| shall be stamped with the docket number of the case. The | 14 |
| receipt for certified
or registered mail shall state the | 15 |
| name and address of the
addressee, the date of the mailing, | 16 |
| shall identify the documents mailed, and
shall be attached | 17 |
| to the original summons.
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| (3) The return receipt must be attached to the original | 19 |
| summons and, if it
shows delivery at least 3 days before | 20 |
| the return date, shall
constitute proof
of service of any | 21 |
| documents identified on the return receipt as having been
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| mailed.
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| (4) The clerk shall note the fact of service in a | 24 |
| permanent record.
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| (c) Instead of personal service, a summons for a wage | 26 |
| deduction may
be served and returned in the manner provided by |
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| Supreme Court rule for
service, otherwise than by publication, | 2 |
| of a notice for additional relief upon
a
party in default.
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| (Source: P.A. 94-306, eff. 1-1-06.)
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| (735 ILCS 5/12-808) (from Ch. 110, par. 12-808)
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| Sec. 12-808. Duty of employer.
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| (a) An employer served as herein provided shall pay the
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| employee the amount of his or her exempt wages.
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| (b) To the extent of the amount due upon the judgment and | 9 |
| costs, the
employer shall hold, subject to order of court, any | 10 |
| non-exempt wages due or
which subsequently come due. The | 11 |
| judgment or balance due thereon is
a lien on wages due at the | 12 |
| time of the service of summons, and such lien
shall continue as | 13 |
| to subsequent earnings until the total amount due upon
the | 14 |
| judgment and costs is paid, except that such lien on subsequent
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| earnings shall terminate sooner if the employment relationship | 16 |
| is
terminated or if the underlying judgment is vacated or | 17 |
| modified.
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| (b-5) If the employer is a federal agency employer and the | 19 |
| creditor is
represented by an attorney, then the employer, upon | 20 |
| service of summons and to
the extent of the amount due upon the | 21 |
| judgment and costs, shall commence to pay
over to the attorney | 22 |
| for the judgment creditor any non-exempt wages due or that
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| subsequently come due. The attorney for the judgment creditor | 24 |
| shall thereafter
hold the deducted wages subject to further | 25 |
| order of the court and shall make
answer to the court regarding |
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| amounts received from the federal agency
employer. The federal | 2 |
| agency employer's periodic payments shall be considered
a | 3 |
| sufficient answer to the interrogatories.
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| (c) Except as provided in subsection (b-5),
the employer | 5 |
| shall file, on or before the return date or within the
further | 6 |
| time that the court for cause may allow, a written answer under
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| oath to the interrogatories, setting forth the amount due as | 8 |
| wages to
the judgment debtor for the payroll periods ending | 9 |
| immediately prior to the service of the summons and a summary | 10 |
| of the
computation used to determine the amount of non-exempt | 11 |
| wages. Except as
provided in subsection (b-5), the
employer | 12 |
| shall mail by first class mail or hand deliver a copy of the
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| answer to the judgment debtor at the address specified in the | 14 |
| affidavit
filed under Section 12-805 of this Act, or at any | 15 |
| other address or location
of the judgment debtor known to the | 16 |
| employer.
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| A lien obtained hereunder shall have priority over any | 18 |
| subsequent
lien obtained hereunder, except that liens for the | 19 |
| support of a spouse
or dependent children shall have priority | 20 |
| over all other liens obtained
hereunder. Subsequent summonses | 21 |
| shall be effective in the order in which they are served.
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| (d) The Illinois Supreme Court may by rule allow an | 23 |
| employer to file
answers to interrogatories by facsimile | 24 |
| transmission.
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| (e) Pursuant to answer under oath to the interrogatories by | 26 |
| the employer,
an order shall be entered compelling the employer |
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| to deduct from wages of the
judgment debtor subject to | 2 |
| collection under a deduction order an amount which is the | 3 |
| lesser of (i) 15% of the gross amount of the wages or (ii) the
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| amount by which disposable earnings for a week exceed 45 times | 5 |
| the Federal
Minimum Hourly Wage prescribed by Section 206(a)(1) | 6 |
| of Title 29 of the United
States Code, as amended, in effect at | 7 |
| the time the amounts are payable, for
each pay period in which | 8 |
| statutory exemptions under Section 12-804 and child
support | 9 |
| garnishments, if any, leave funds to be remitted or, under a | 10 |
| wage deduction summons served on or after January 1, 2006, the | 11 |
| minimum hourly wage prescribed by Section 4 of the Minimum Wage | 12 |
| Law, whichever is greater. The order shall
further provide that | 13 |
| deducted wages shall be remitted to the creditor or
creditor's | 14 |
| attorney on a monthly basis.
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| (f) If after the entry of a deduction order, the employer | 16 |
| ceases to remit funds to the plaintiff pursuant to the order | 17 |
| without a lawful excuse (which would terminate the employer's | 18 |
| obligation under the deduction order such as the debtor having | 19 |
| filed a bankruptcy, the debtor having left employment or the | 20 |
| employer having received service of a support order against the | 21 |
| judgment debtor having priority over the wage deduction | 22 |
| proceedings), the court shall, upon plaintiff's motion, enter a | 23 |
| conditional judgment against the employer for the balance due | 24 |
| on the judgment. The plaintiff may then issue a Summons After | 25 |
| Conditional Judgment. After service of the Summons After | 26 |
| Conditional Judgment, the employer may show cause why the |
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| conditional judgment, or some portion thereof should not be | 2 |
| made a final judgment. If the employer shall fail to respond or | 3 |
| show cause why the conditional judgment or some portion thereof | 4 |
| should not be
made final, the court shall confirm the | 5 |
| conditional judgment and make it final as to the employer plus | 6 |
| additional court costs.
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| (g) Notwithstanding any other provision, the court may | 8 |
| enter an order reducing the amount of wages withheld, if the | 9 |
| court finds that the judgment debtor is a family supporter and | 10 |
| the full wage garnishment would result in a denial of | 11 |
| necessities to his or her dependent. The term "family | 12 |
| supporter" means an individual who actually supports and | 13 |
| resides with one or more dependents. The term "dependent" means | 14 |
| a child under the age of 18 who resides with and is supported | 15 |
| by the judgment debtor or a disabled person who resides with | 16 |
| and is supported by the judgment debtor and whose relationship | 17 |
| with the judgment debtor is that of parent, stepparent, son, | 18 |
| daughter, sibling, uncle, aunt, grandparent, or ward. | 19 |
| (Source: P.A. 94-306, eff. 1-1-06; 95-661, eff. 1-1-08.)
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| (735 ILCS 5/12-811) (from Ch. 110, par. 12-811)
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| Sec. 12-811. Trial and judgment.
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| (a) The judgment creditor or the judgment debtor may | 23 |
| contest the truth or
sufficiency of the employer's answer and, | 24 |
| in accordance with local court
rules, the court shall | 25 |
| immediately, unless for good cause the hearing is
postponed, |
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| proceed to try the issues. The answer of the employer may be
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| contested without further pleading.
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| (b) At any time on or before the return date, the judgment | 4 |
| debtor may
request a hearing to dispute the wage deduction | 5 |
| because the wages are
exempt or to reduce the amount of wages | 6 |
| withheld because the judgment debtor is a family supporter | 7 |
| under this Section by notifying the clerk of court before that | 8 |
| time, using forms as may
be provided by the clerk of the court. | 9 |
| To obtain a hearing
in counties with a population of 1,000,000 | 10 |
| or more, the judgment debtor
must notify the clerk of court in | 11 |
| person and in writing at the clerk's office
before the return | 12 |
| date specified in the summons or appear in court on the
date | 13 |
| and time specified in the summons. To obtain a hearing in | 14 |
| counties
with a population of less than 1,000,000, the judgment | 15 |
| debtor must notify
the clerk of the court in writing at the | 16 |
| clerk's office on or before the
return date specified in the | 17 |
| summons. The Clerk of Court will provide a
hearing date and the | 18 |
| necessary forms that must be prepared by the judgment
debtor or | 19 |
| the attorney for the judgment debtor and sent to the judgment
| 20 |
| creditor and the employer, or their attorney, regarding the | 21 |
| time and
location of the hearing. This notice may be sent by | 22 |
| regular first class
mail. At the hearing the court shall | 23 |
| immediately, unless for good cause the
hearing is continued, | 24 |
| proceed to try the issues.
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| (b-5) Notwithstanding any other provision, the court may | 26 |
| enter an order reducing the amount of wages withheld and reduce |
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| the rate of interest the judgment debtor is obligated to pay on | 2 |
| the judgment, if the court finds that the judgment debtor is a | 3 |
| family supporter and the full wage garnishment would result in | 4 |
| a denial of necessities to his or her dependent. For purposes | 5 |
| of this Act: | 6 |
| (1) "family supporter" means an individual who | 7 |
| actually supports and resides with one or more dependents; | 8 |
| and | 9 |
| (2) "dependent" means a child under the age of 18 who | 10 |
| resides with and is supported by the judgment debtor or a | 11 |
| disabled person who resides with and is supported by the | 12 |
| judgment debtor and whose relationship with the judgment | 13 |
| debtor is that of parent, stepparent, son, daughter, | 14 |
| sibling, uncle, aunt, grandparent, or ward. | 15 |
| (c) The trial shall be conducted as in other civil cases.
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| (d) If the finding is against an employer, a deduction | 17 |
| order shall
be entered against the employer and in favor of the | 18 |
| judgment debtor to
whom the employer is indebted, in the same | 19 |
| manner as if the facts are
admitted.
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| (e) No deduction order shall be entered in favor of the | 21 |
| judgment
creditor unless the affidavit filed by the judgment | 22 |
| creditor certifies that
a copy of the wage deduction notice has | 23 |
| been mailed to the judgment debtor,
under Section 12-805, and | 24 |
| the employer's answer provides a summary of the
computation | 25 |
| used to determine the amount of non-exempt wages.
If the | 26 |
| employer is a federal agency employer, a deduction order shall |
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| be
entered in favor of the judgment creditor if (i) the | 2 |
| affidavit filed by the
judgment creditor certifies that a copy | 3 |
| of the wage deduction notice has been
mailed to the judgment | 4 |
| debtor under Section 12-805 and (ii) the federal agency
| 5 |
| employer identifies, on or with its periodic payments made | 6 |
| under subsection
(b-5) of Section 12-808, the computation | 7 |
| method used to determine the amount of
non-exempt wages. A | 8 |
| federal agency employer shall not be required to provide a
| 9 |
| summary of the computation used to determine the amount of | 10 |
| non-exempt wages.
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| (Source: P.A. 89-28, eff. 6-23-95.)".
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