Full Text of HB2949 97th General Assembly
HB2949eng 97TH GENERAL ASSEMBLY |
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| 1 | | AN ACT concerning civil law.
| 2 | | Be it enacted by the People of the State of Illinois,
| 3 | | represented in the General Assembly:
| 4 | | Section 5. The Code of Civil Procedure is amended by | 5 | | changing Sections 12-801, 12-805, and 12-808 as follows:
| 6 | | (735 ILCS 5/12-801) (from Ch. 110, par. 12-801)
| 7 | | Sec. 12-801. Definitions. As used in Part 8 of Article XII | 8 | | of this Act:
| 9 | | "Deduction order" means an order entered pursuant to | 10 | | Section 12-811 of
this Act.
| 11 | | "Employer" means the person named as employer in the | 12 | | affidavit filed
under Section 12-805.
| 13 | | "Federal agency employer" means an agency of the federal | 14 | | government as
defined in 5 USC 5520a(a)(1), as amended from | 15 | | time to time.
| 16 | | "Judgment creditor" means the recipient of any judgment, | 17 | | except a
judgment by confession which has not been confirmed as | 18 | | provided in Part
8 of Article XII of this Act.
| 19 | | "Judgment debtor" means a person against whom a judgment | 20 | | has been obtained.
| 21 | | "Wages" means any hourly pay, salaries, commissions, | 22 | | bonuses, or other
compensation owed by an employer to a | 23 | | judgment debtor.
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| 1 | | "Judgment arising from financial exploitation of an | 2 | | elderly person
or person with a disability" means a judgment | 3 | | entered under subsection (g) of Section 16-1.3 of the Criminal | 4 | | Code of 1961. | 5 | | (Source: P.A. 89-28, eff. 6-23-95.)
| 6 | | (735 ILCS 5/12-805) (from Ch. 110, par. 12-805)
| 7 | | Sec. 12-805. Summons; Issuance.
| 8 | | (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
| 14 | | 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
| 21 | | 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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| 1 | | copy of the completed interrogatories as specified in
| 2 | | 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
| 9 | | 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,
| 13 | | 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:
| 17 | | "WAGE DEDUCTION NOTICE
| 18 | | (Name and address of Court)
| 19 | | Name of Case: (Name of Judgment Creditor),
| 20 | | Judgment Creditor v.
| 21 | | (Name of Judgment Debtor),
| 22 | | Judgment Debtor.
| 23 | | Address of Judgment Debtor: (Insert last known address)
| 24 | | Name and Address of Attorney for Judgment
| 25 | | Creditor or of Judgment Creditor (if no
| 26 | | attorney is listed): (Insert name and address)
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| 1 | | Amount of Judgment: $..........
| 2 | | Employer: (Name of Employer)
| 3 | | Return Date: (Insert return date specified in summons)
| 4 | | 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.
| 9 | | The amount of wages that may be deducted is limited by | 10 | | federal and
Illinois law.
| 11 | | (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
| 15 | | 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.
| 19 | | (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.
| 24 | | (3) Pension and retirement benefits and refunds may be | 25 | | claimed as
exempt from wage deduction under Illinois law.
| 26 | | You have the right to request a hearing before the court
to |
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| 1 | | dispute the wage deduction because the wages are exempt. To | 2 | | obtain a
hearing in counties with a population of 1,000,000 or | 3 | | more, you
must notify the Clerk of the Court in person and in | 4 | | writing at (insert
address of Clerk) before the Return Date | 5 | | specified above or appear
in court on the date and time on that | 6 | | Return Date. To obtain a
hearing in counties with a population | 7 | | of less than 1,000,000, you
must notify the Clerk of the Court | 8 | | in writing at (insert address of
clerk) on or before the Return | 9 | | Date specified above.
The Clerk of the Court will provide a | 10 | | hearing date and the necessary
forms that must be prepared by | 11 | | you or your attorney and
sent to the judgment creditor and the | 12 | | employer, or their attorney,
regarding the time and location of | 13 | | the hearing. This notice may be sent by
regular first class | 14 | | mail."
| 15 | | (b) In a county with a population of less than 1,000,000, | 16 | | unless otherwise
provided by circuit court rule, at the request | 17 | | of the judgment creditor or his
or her attorney and instead of | 18 | | personal service, service of a summons for a
wage deduction may | 19 | | be made as follows:
| 20 | | (1) For each employer to be served, the judgment | 21 | | creditor or his or her
attorney shall pay to the clerk of | 22 | | the court a fee of $2, plus the cost of
mailing, and | 23 | | furnish to the clerk an original and one copy of a
summons, | 24 | | an original and one copy of the interrogatories and an | 25 | | affidavit
setting forth the employer's mailing address, an | 26 | | original and one copy of
the wage deduction notice required |
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| 1 | | by subsection (a) of this Section, and a
copy of the | 2 | | judgment or certification described in subsection (a) of | 3 | | this
Section. The original judgment shall be
retained by | 4 | | the clerk.
| 5 | | (2) The clerk shall mail to the employer, at the | 6 | | address appearing in the
affidavit, the copy of the | 7 | | judgment
or certification described in subsection (a) of | 8 | | this Section, the summons,
the interrogatories, and the | 9 | | wage deduction notice required by subsection (a)
of this | 10 | | Section, by certified or registered mail, return
receipt | 11 | | requested, showing to whom delivered and the date and | 12 | | address of
delivery. This Mailing shall be mailed on a | 13 | | "restricted delivery"
basis when service is directed to a | 14 | | natural person. The envelope and return
receipt shall bear | 15 | | the return address of the clerk, and the return receipt
| 16 | | shall be stamped with the docket number of the case. The | 17 | | receipt for certified
or registered mail shall state the | 18 | | name and address of the
addressee, the date of the mailing, | 19 | | shall identify the documents mailed, and
shall be attached | 20 | | to the original summons.
| 21 | | (3) The return receipt must be attached to the original | 22 | | summons and, if it
shows delivery at least 3 days before | 23 | | the return date, shall
constitute proof
of service of any | 24 | | documents identified on the return receipt as having been
| 25 | | mailed.
| 26 | | (4) The clerk shall note the fact of service in a |
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| 1 | | permanent record.
| 2 | | (c) Instead of personal service, a summons for a wage | 3 | | deduction may
be served and returned in the manner provided by | 4 | | Supreme Court rule for
service, otherwise than by publication, | 5 | | of a notice for additional relief upon
a
party in default.
| 6 | | (d) A summons for a wage deduction that is based on a | 7 | | judgment arising from financial exploitation of an elderly | 8 | | person
or person with a disability shall prominently state that | 9 | | it must be given priority over other wage deductions except for | 10 | | wage deductions for the support of a spouse
or dependent | 11 | | children. | 12 | | (Source: P.A. 94-306, eff. 1-1-06.)
| 13 | | (735 ILCS 5/12-808) (from Ch. 110, par. 12-808)
| 14 | | Sec. 12-808. Duty of employer.
| 15 | | (a) An employer served as herein provided shall pay the
| 16 | | employee the amount of his or her exempt wages.
| 17 | | (b) To the extent of the amount due upon the judgment and | 18 | | costs, the
employer shall hold, subject to order of court, any | 19 | | non-exempt wages due or
which subsequently come due. The | 20 | | judgment or balance due thereon is
a lien on wages due at the | 21 | | time of the service of summons, and such lien
shall continue as | 22 | | to subsequent earnings until the total amount due upon
the | 23 | | judgment and costs is paid, except that such lien on subsequent
| 24 | | earnings shall terminate sooner if the employment relationship | 25 | | is
terminated or if the underlying judgment is vacated or |
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| 1 | | modified.
| 2 | | (b-5) If the employer is a federal agency employer and the | 3 | | creditor is
represented by an attorney, then the employer, upon | 4 | | service of summons and to
the extent of the amount due upon the | 5 | | judgment and costs, shall commence to pay
over to the attorney | 6 | | for the judgment creditor any non-exempt wages due or that
| 7 | | subsequently come due. The attorney for the judgment creditor | 8 | | shall thereafter
hold the deducted wages subject to further | 9 | | order of the court and shall make
answer to the court regarding | 10 | | amounts received from the federal agency
employer. The federal | 11 | | agency employer's periodic payments shall be considered
a | 12 | | sufficient answer to the interrogatories.
| 13 | | (c) Except as provided in subsection (b-5),
the employer | 14 | | shall file, on or before the return date or within the
further | 15 | | time that the court for cause may allow, a written answer under
| 16 | | oath to the interrogatories, setting forth the amount due as | 17 | | wages to
the judgment debtor for the payroll periods ending | 18 | | immediately prior to the service of the summons and a summary | 19 | | of the
computation used to determine the amount of non-exempt | 20 | | wages. Except as
provided in subsection (b-5), the
employer | 21 | | shall mail by first class mail or hand deliver a copy of the
| 22 | | answer to the judgment debtor at the address specified in the | 23 | | affidavit
filed under Section 12-805 of this Act, or at any | 24 | | other address or location
of the judgment debtor known to the | 25 | | employer.
| 26 | | A lien obtained hereunder shall have priority over any |
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| 1 | | subsequent
lien obtained hereunder, except that liens for the | 2 | | support of a spouse
or dependent children and liens based on | 3 | | judgments arising from financial exploitation of an elderly | 4 | | person
or person with a disability shall have priority over all | 5 | | other liens obtained
hereunder. Liens for the support of a | 6 | | spouse
or dependent children have priority over liens based on | 7 | | judgments arising from financial exploitation of an elderly | 8 | | person
or person with a disability. Subsequent summonses shall | 9 | | be effective in the order in which they are served.
| 10 | | (d) The Illinois Supreme Court may by rule allow an | 11 | | employer to file
answers to interrogatories by facsimile | 12 | | transmission.
| 13 | | (e) Pursuant to answer under oath to the interrogatories by | 14 | | the employer,
an order shall be entered compelling the employer | 15 | | to deduct from wages of the
judgment debtor subject to | 16 | | collection under a deduction order an amount which is the | 17 | | lesser of (i) 15% of the gross amount of the wages or (ii) the
| 18 | | amount by which disposable earnings for a week exceed 45 times | 19 | | the Federal
Minimum Hourly Wage prescribed by Section 206(a)(1) | 20 | | of Title 29 of the United
States Code, as amended, in effect at | 21 | | the time the amounts are payable, for
each pay period in which | 22 | | statutory exemptions under Section 12-804 and child
support | 23 | | garnishments, if any, leave funds to be remitted or, under a | 24 | | wage deduction summons served on or after January 1, 2006, the | 25 | | minimum hourly wage prescribed by Section 4 of the Minimum Wage | 26 | | Law, whichever is greater. The order shall
further provide that |
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| 1 | | deducted wages shall be remitted to the creditor or
creditor's | 2 | | attorney on a monthly basis.
| 3 | | (f) If after the entry of a deduction order, the employer | 4 | | ceases to remit funds to the plaintiff pursuant to the order | 5 | | without a lawful excuse (which would terminate the employer's | 6 | | obligation under the deduction order such as the debtor having | 7 | | filed a bankruptcy, the debtor having left employment or the | 8 | | employer having received service of a support order against the | 9 | | judgment debtor having priority over the wage deduction | 10 | | proceedings), the court shall, upon plaintiff's motion, enter a | 11 | | conditional judgment against the employer for the balance due | 12 | | on the judgment. The plaintiff may then issue a Summons After | 13 | | Conditional Judgment. After service of the Summons After | 14 | | Conditional Judgment, the employer may show cause why the | 15 | | conditional judgment, or some portion thereof should not be | 16 | | made a final judgment. If the employer shall fail to respond or | 17 | | show cause why the conditional judgment or some portion thereof | 18 | | should not be
made final, the court shall confirm the | 19 | | conditional judgment and make it final as to the employer plus | 20 | | additional court costs.
| 21 | | (Source: P.A. 94-306, eff. 1-1-06; 95-661, eff. 1-1-08.)
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