Full Text of HB5434 97th General Assembly
HB5434ham001 97TH GENERAL ASSEMBLY | Rep. Ann Williams Filed: 3/7/2012
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| 1 | | AMENDMENT TO HOUSE BILL 5434
| 2 | | AMENDMENT NO. ______. Amend House Bill 5434 by replacing | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 5. The Code of Civil Procedure is amended by | 5 | | changing Section 2-1402 and by adding Section 12-107.5 as | 6 | | follows:
| 7 | | (735 ILCS 5/2-1402) (from Ch. 110, par. 2-1402)
| 8 | | Sec. 2-1402. Supplementary proceedings.
| 9 | | (a) A judgment creditor, or his or her successor in | 10 | | interest when that
interest is made to appear of record, is | 11 | | entitled to prosecute supplementary
proceedings for the | 12 | | purposes of examining the judgment debtor or any other
person | 13 | | to discover assets or income of the debtor not exempt from the
| 14 | | enforcement of the judgment, a deduction order or garnishment, | 15 | | and of
compelling the application of non-exempt assets or | 16 | | income discovered toward the
payment of the amount due under |
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| 1 | | the judgment. A supplementary proceeding shall
be commenced by | 2 | | the service of a citation issued by the clerk. The procedure
| 3 | | for conducting supplementary proceedings shall be prescribed | 4 | | by rules. It is
not a prerequisite to the commencement of a | 5 | | supplementary proceeding that a
certified copy of the judgment | 6 | | has been returned wholly or partly unsatisfied.
All citations | 7 | | issued by the clerk shall have the following language, or
| 8 | | language substantially similar thereto, stated prominently on | 9 | | the front, in
capital letters: " IF YOU FAIL YOUR FAILURE TO | 10 | | APPEAR IN COURT AS HEREIN DIRECTED IN THIS NOTICE, YOU MAY | 11 | | CAUSE
YOU TO BE ARRESTED AND BROUGHT BEFORE THE COURT TO ANSWER | 12 | | TO A CHARGE OF
CONTEMPT OF COURT, WHICH MAY BE PUNISHABLE BY | 13 | | IMPRISONMENT IN THE COUNTY JAIL."
The court shall not grant a | 14 | | continuance of the supplementary proceeding except
upon good | 15 | | cause shown.
| 16 | | (b) Any citation served upon a judgment debtor or any other | 17 | | person shall
include a certification by the attorney for the | 18 | | judgment creditor or the
judgment creditor setting forth the | 19 | | amount of the judgment, the date of the
judgment, or its | 20 | | revival date, the balance due thereon, the name of the court,
| 21 | | and the number of the case, and a copy of the citation notice | 22 | | required by this
subsection , and a copy of the Income and Asset | 23 | | Form required by this Section. Service of a citation upon a | 24 | | judgment debtor shall be personal service or abode service as | 25 | | provided in Section 2-203 . Whenever a citation is served upon a | 26 | | person or party other than
the judgment debtor, the officer or |
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| 1 | | person serving the citation shall send to
the judgment debtor, | 2 | | within three business days of the service upon the cited
party, | 3 | | a copy of the citation and the citation notice, which may be | 4 | | sent
by regular first-class mail to the judgment debtor's last | 5 | | known address. In no
event shall a citation hearing be held | 6 | | sooner than five business days after the
mailing of the | 7 | | citation and citation notice to the judgment debtor, except by
| 8 | | agreement of the parties. The citation notice need not be | 9 | | mailed to a
corporation, partnership, or association. The | 10 | | citation notice shall be in
substantially the following form:
| 11 | | "CITATION NOTICE
| 12 | | (Name and address of Court)
| 13 | | Name of Case: (Name of Judgment Creditor),
| 14 | | Judgment Creditor v.
| 15 | | (Name of Judgment Debtor),
| 16 | | Judgment Debtor.
| 17 | | Address of Judgment Debtor: (Insert last known
| 18 | | address)
| 19 | | Name and address of Attorney for Judgment
| 20 | | Creditor or of Judgment Creditor (If no
| 21 | | attorney is listed): (Insert name and address)
| 22 | | Amount of Judgment: $ (Insert amount)
| 23 | | Name of Person Receiving Citation: (Insert name)
| 24 | | Court Date and Time: (Insert return date and time
| 25 | | specified in citation)
| 26 | | NOTICE: The court has issued a citation against the person |
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| 1 | | named above. The
citation directs that person to appear in | 2 | | court to be examined for the purpose
of allowing the judgment | 3 | | creditor to discover income and assets belonging to
the | 4 | | judgment debtor or in which the judgment debtor has an | 5 | | interest. The
citation was issued on the basis of a judgment | 6 | | against the judgment debtor in
favor of the judgment creditor | 7 | | in the amount stated above. On or after the
court date stated | 8 | | above, the court may compel the application of any
discovered | 9 | | income or assets toward payment on the judgment.
| 10 | | The amount of income or assets that may be applied toward | 11 | | the judgment is
limited by federal and Illinois law. The | 12 | | JUDGMENT DEBTOR HAS THE RIGHT TO
ASSERT STATUTORY EXEMPTIONS | 13 | | AGAINST CERTAIN INCOME OR ASSETS OF THE JUDGMENT
DEBTOR WHICH | 14 | | MAY NOT BE USED TO SATISFY THE JUDGMENT IN THE AMOUNT STATED
| 15 | | ABOVE:
| 16 | | (1) Under Illinois or federal law, the exemptions of | 17 | | personal property
owned by the debtor include the debtor's | 18 | | equity interest, not to exceed $4,000
in value, in any | 19 | | personal property as chosen by the debtor; Social Security | 20 | | and
SSI benefits; public assistance benefits; unemployment | 21 | | compensation benefits;
worker's compensation benefits; | 22 | | veteran's benefits; circuit breaker property
tax relief | 23 | | benefits; the debtor's equity interest, not to exceed | 24 | | $2,400 in
value, in any one motor vehicle, and the debtor's | 25 | | equity interest, not to
exceed $1,500 in value, in any | 26 | | implements, professional books, or tools of the
trade of |
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| 1 | | the debtor.
| 2 | | (2) Under Illinois law, every person is entitled to an | 3 | | estate in
homestead, when it is owned and occupied as a | 4 | | residence, to the extent in value
of $15,000, which | 5 | | homestead is exempt from judgment.
| 6 | | (3) Under Illinois law, the amount of wages that may be | 7 | | applied toward a
judgment is limited to the lesser of (i) | 8 | | 15% of gross weekly wages or (ii) the
amount by which | 9 | | disposable earnings for a week exceed the total of 45 times | 10 | | the
federal minimum hourly wage or, under a wage deduction | 11 | | summons served on or after January 1, 2006, the Illinois | 12 | | minimum hourly wage, whichever is greater.
| 13 | | (4) Under federal law, the amount of wages that may be | 14 | | applied toward a
judgment is limited to the lesser of (i) | 15 | | 25% of disposable earnings for a week
or (ii) the amount by | 16 | | which disposable earnings for a week exceed 30 times the
| 17 | | federal minimum hourly wage.
| 18 | | (5) Pension and retirement benefits and refunds may be | 19 | | claimed as exempt
under Illinois law.
| 20 | | The judgment debtor may have other possible exemptions | 21 | | under the law.
| 22 | | THE JUDGMENT DEBTOR HAS THE RIGHT AT THE CITATION HEARING | 23 | | TO DECLARE EXEMPT
CERTAIN INCOME OR ASSETS OR BOTH. THE | 24 | | JUDGMENT DEBTOR IS ENCOURAGED TO USE THE ENCLOSED INCOME AND | 25 | | ASSET FORM TO ASSIST WITH THIS PROCESS. The judgment debtor | 26 | | also has the right to
seek a declaration at an earlier date, by |
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| 1 | | notifying the clerk in writing at
(insert address of clerk). | 2 | | When so notified, the Clerk of the Court will
obtain a prompt | 3 | | hearing date from the court and will
provide the necessary | 4 | | forms that must be prepared by the judgment debtor or the
| 5 | | attorney for the judgment debtor and sent to the judgment | 6 | | creditor and the
judgment creditor's attorney regarding the | 7 | | time and location of the hearing.
This notice may be sent by | 8 | | regular first class mail."
| 9 | | INCOME AND ASSET FORM | 10 | | (CASE CAPTION) | 11 | | To Judgment Debtor: Please complete this form and bring | 12 | | it with you to the hearing at (DATE, TIME, LOCATION). The | 13 | | information you provide will help the court determine | 14 | | whether you have any property or income that can be used to | 15 | | satisfy the judgment entered against you in this matter. | 16 | | The information you provide must be accurate to the best of | 17 | | your knowledge. | 18 | | If you fail to appear at this hearing, you could be | 19 | | held in contempt of court and possibly arrested. | 20 | | In answer to the citation and supplemental proceedings | 21 | | served upon (INSERT NAME OF JUDGMENT DEBTOR), he or she | 22 | | answers as follows: | 23 | | Name:..................... | 24 | | Home Phone Number:................. |
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| 1 | | Home Address:.................... | 2 | | Date of Birth:...................... | 3 | | Marital Status:..................... | 4 | | I have.........dependents. | 5 | | Do you have a job? YES NO | 6 | | Company's name I work for:...................... | 7 | | Company's address:.............................. | 8 | | Job: | 9 | | I earn $....... per....... | 10 | | If self employed, list here your business name and | 11 | | address: | 12 | | ............................................................. | 13 | | Income from self employment is $......... per | 14 | | year. | 15 | | I have the following benefits with my employer: | 16 | | ............................................................. | 17 | | I do not have a job, but I support myself through: | 18 | | Government Assistance $........ per month | 19 | | Unemployment $........ per month | 20 | | Social Security $........ per month | 21 | | SSI $........ per month | 22 | | Pension $........ per month | 23 | | Other $........ per month | 24 | | Real Estate: | 25 | | Do you own any real estate? YES NO |
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| 1 | | I own real estate at.........., with names of other | 2 | | owners | 3 | | ............................................................. | 4 | | Additional real estate I own: ........................ | 5 | | I have a beneficial interest in a land trust. The name | 6 | | and address of the trustee is:............. The beneficial | 7 | | interest is listed in my name and ............................ | 8 | | There is a mortgage on my real estate. State the | 9 | | mortgage company's name and address for each parcel of real | 10 | | estate owned: | 11 | | ............................................................. | 12 | | An assignment of beneficial interest in the land trust | 13 | | was signed to secure a loan from ............................. | 14 | | I have the following accounts: | 15 | | Checking account at ..........; | 16 | | account balance $...... | 17 | | Savings account at ..........; | 18 | | account balance $...... | 19 | | Money market or certificate of deposit at ........ | 20 | | Safe deposit box at .............................. | 21 | | Other accounts (please identify): ................ | 22 | | I own: | 23 | | A vehicle (state year, make, model, and VIN): .... | 24 | | Jewelry (please specify): ........................ | 25 | | Other property described as:...................... | 26 | | Stocks/Bonds..................... |
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| 1 | | Personal computer................ | 2 | | DVD player....................... | 3 | | Television....................... | 4 | | Stove....................... | 5 | | Microwave....................... | 6 | | Work tools....................... | 7 | | Business equipment....................... | 8 | | Farm equipment....................... | 9 | | Other property (please specify): | 10 | | ............................................................. | 11 | | Signature:.................... | 12 | | (c) No order to pay money shall be entered until the court | 13 | | has determined that the judgment debtor has been served with a | 14 | | citation, citation notice, and an Income and Asset Form in | 15 | | accordance with subsection (b) of this Section and has had an | 16 | | opportunity to assert exemptions, and that the source of the | 17 | | payments is non-exempt sources. When assets or income of the | 18 | | judgment debtor not exempt from
the satisfaction of a judgment, | 19 | | a deduction order or garnishment are
discovered, the court may, | 20 | | by appropriate order or judgment:
| 21 | | (1) Compel the judgment debtor to deliver up, to be | 22 | | applied in
satisfaction of the judgment, in whole or in | 23 | | part, money, choses in
action, property or effects in his | 24 | | or her possession or control, so discovered,
capable of | 25 | | delivery and to which his or her title or right of | 26 | | possession is not
substantially disputed.
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| 1 | | (2) Compel the judgment debtor to pay to the judgment | 2 | | creditor or
apply on the judgment, in installments, a | 3 | | portion of his or her income, however
or whenever earned or | 4 | | acquired, as the court may deem proper, having due
regard | 5 | | for the reasonable requirements of the judgment debtor and | 6 | | his or her
family, if dependent upon him or her, as well as | 7 | | any payments required to be
made by prior order of court or | 8 | | under wage assignments outstanding; provided
that the | 9 | | judgment debtor shall not be compelled to pay income which | 10 | | would be
considered exempt as wages under the Wage | 11 | | Deduction Statute. The court may
modify an order for | 12 | | installment payments, from time to time, upon application
| 13 | | of either party upon notice to the other.
| 14 | | (3) Compel any person cited, other than the judgment | 15 | | debtor, to
deliver up any assets so discovered, to be | 16 | | applied in satisfaction of
the judgment, in whole or in | 17 | | part, when those assets are held under such
circumstances | 18 | | that in an action by the judgment debtor he or she could | 19 | | recover
them in specie or obtain a judgment for the | 20 | | proceeds or value thereof as
for conversion or | 21 | | embezzlement. A judgment creditor may recover a corporate | 22 | | judgment debtor's property on behalf of the judgment debtor | 23 | | for use of the judgment creditor by filing an appropriate | 24 | | petition within the citation proceedings.
| 25 | | (4) Enter any order upon or judgment against the person | 26 | | cited that
could be entered in any garnishment proceeding.
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| 1 | | (5) Compel any person cited to execute an assignment of | 2 | | any chose in
action or a conveyance of title to real or | 3 | | personal property or resign memberships in exchanges, | 4 | | clubs, or other entities in the
same manner and to the same | 5 | | extent as a court could do in any proceeding
by a judgment | 6 | | creditor to enforce payment of a judgment or in aid of
the | 7 | | enforcement of a judgment.
| 8 | | (6) Authorize the judgment creditor to maintain an | 9 | | action against
any person or corporation that, it appears | 10 | | upon proof satisfactory to
the court, is indebted to the | 11 | | judgment debtor, for the recovery of the
debt, forbid the | 12 | | transfer or other disposition of the debt until an
action | 13 | | can be commenced and prosecuted to judgment, direct that | 14 | | the
papers or proof in the possession or control of the | 15 | | debtor and necessary
in the prosecution of the action be | 16 | | delivered to the creditor or
impounded in court, and | 17 | | provide for the disposition of any moneys in
excess of the | 18 | | sum required to pay the judgment creditor's judgment and
| 19 | | costs allowed by the court.
| 20 | | (d) No order or judgment shall be entered under subsection | 21 | | (c) in favor of
the judgment creditor unless there appears of | 22 | | record a certification of
mailing showing that a copy of the | 23 | | citation , and a copy of the citation notice , and the Income and | 24 | | Asset Form were served upon was mailed to the judgment debtor | 25 | | as required by subsection (b).
| 26 | | (d-5) If the court determines that the judgment debtor does |
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| 1 | | not possess any non-exempt income or assets, then the citation | 2 | | shall be dismissed. | 3 | | (e) All property ordered to be delivered up shall, except | 4 | | as
otherwise provided in this Section, be delivered to the | 5 | | sheriff to be
collected by the sheriff or sold at public sale | 6 | | and the proceeds thereof
applied towards the payment of costs | 7 | | and the satisfaction of the judgment. If the judgment debtor's | 8 | | property is of such a nature that it is not readily delivered | 9 | | up to the sheriff for public sale or if another method of sale | 10 | | is more appropriate to liquidate the property or enhance its | 11 | | value at sale, the court may order the sale of such property by | 12 | | the debtor, third party respondent, or by a selling agent other | 13 | | than the sheriff upon such terms as are just and equitable. The | 14 | | proceeds of sale, after deducting reasonable and necessary | 15 | | expenses, are to be turned over to the creditor and applied to | 16 | | the balance due on the judgment.
| 17 | | (f) (1) The citation may prohibit the party to whom it is | 18 | | directed from
making or allowing any transfer or other | 19 | | disposition of, or interfering with,
any property not | 20 | | exempt from the enforcement of a judgment therefrom, a
| 21 | | deduction order or garnishment, belonging to the judgment | 22 | | debtor or to which he
or she may be entitled or which may | 23 | | thereafter be acquired by or become due to
him or her, and | 24 | | from paying over or otherwise disposing of any moneys not | 25 | | so
exempt which are due or to become due to the judgment | 26 | | debtor, until the further
order of the court or the |
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| 1 | | termination of the proceeding, whichever occurs
first. The | 2 | | third party may not be obliged to withhold the payment of | 3 | | any
moneys beyond double the amount of the balance due | 4 | | sought to be enforced by the
judgment creditor. The court | 5 | | may punish any party who violates the restraining
provision | 6 | | of a citation as and for a contempt, or if the party is a | 7 | | third party
may enter judgment against him or her in the | 8 | | amount of the unpaid portion of
the judgment and costs | 9 | | allowable under this Section, or in the amount of the
value | 10 | | of the property transferred, whichever is lesser.
| 11 | | (2) The court may enjoin any person, whether or not a | 12 | | party to the
supplementary proceeding, from making or | 13 | | allowing any transfer or other
disposition of, or | 14 | | interference with, the property of the judgment
debtor not | 15 | | exempt from the enforcement of a judgment, a deduction | 16 | | order or
garnishment, or the property or debt not so exempt | 17 | | concerning which any
person is required to attend and be | 18 | | examined until further direction in the
premises. The | 19 | | injunction order shall remain in effect until vacated by | 20 | | the
court or until the proceeding is terminated, whichever | 21 | | first occurs.
| 22 | | (g) If it appears that any property, chose in action, | 23 | | credit or
effect discovered, or any interest therein, is | 24 | | claimed by any person, the court
shall, as in garnishment | 25 | | proceedings, permit or require the claimant to appear
and | 26 | | maintain his or her right. The rights of the person cited
and |
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| 1 | | the rights of any adverse claimant shall be asserted and | 2 | | determined
pursuant to the law relating to garnishment | 3 | | proceedings.
| 4 | | (h) Costs in proceedings authorized by this Section shall | 5 | | be
allowed, assessed and paid in accordance with rules, | 6 | | provided that if the
court determines, in its discretion, that | 7 | | costs incurred by the judgment
creditor were improperly | 8 | | incurred, those costs shall be paid by the judgment
creditor.
| 9 | | (i) This Section is in addition to and does not affect
| 10 | | enforcement of judgments or proceedings supplementary thereto, | 11 | | by any other
methods now or hereafter provided by law.
| 12 | | (j) This Section does not grant the power to any court to | 13 | | order
installment or other payments from, or compel the sale, | 14 | | delivery,
surrender, assignment or conveyance of any property | 15 | | exempt by statute
from the enforcement of a judgment thereon, a | 16 | | deduction order, garnishment,
attachment, sequestration, | 17 | | process or other levy or seizure.
| 18 | | (k) (Blank).
| 19 | | (k-5) If the court determines that any property held by a | 20 | | third party respondent is wages pursuant to Section 12-801, the | 21 | | court shall proceed as if a wage deduction proceeding had been | 22 | | filed and proceed to enter such necessary and proper orders as | 23 | | would have been entered in a wage deduction proceeding | 24 | | including but not limited to the granting of the statutory | 25 | | exemptions allowed by Section 12-803 and all other remedies | 26 | | allowed plaintiff and defendant pursuant to Part 8 of Article |
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| 1 | | 12 of this Act.
| 2 | | (k-10) If a creditor discovers personal property of the | 3 | | judgment debtor that is subject to the lien of a citation to | 4 | | discover assets, the creditor may have the court impress a lien | 5 | | against a specific item of personal property, including a | 6 | | beneficial interest in a land trust. The lien survives the | 7 | | termination of the citation proceedings and remains as a lien | 8 | | against the personal property in the same manner that a | 9 | | judgment lien recorded against real property pursuant to | 10 | | Section 12-101 remains a lien on real property. If the judgment | 11 | | is revived before dormancy, the lien shall remain. A lien | 12 | | against personal property may, but need not, be recorded in the | 13 | | office of the recorder or filed as an informational filing | 14 | | pursuant to the Uniform Commercial Code. | 15 | | (l) At any citation hearing at which the judgment debtor | 16 | | appears and seeks
a declaration that certain of his or her | 17 | | income or assets are exempt, the court
shall proceed to | 18 | | determine whether the property which the judgment debtor
| 19 | | declares to be exempt is exempt from judgment. At any time | 20 | | before the return
date specified on the citation, the judgment | 21 | | debtor may request, in writing, a
hearing to declare exempt | 22 | | certain income and assets by notifying the clerk of
the court | 23 | | before that time, using forms as may be provided by the clerk | 24 | | of the
court. The clerk of the court will obtain a prompt | 25 | | hearing date from the
court and will provide the necessary | 26 | | forms that must be prepared by the
judgment debtor or the |
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| 1 | | attorney for the judgment debtor and sent to the
judgment | 2 | | creditor, or the judgment creditor's attorney, regarding the | 3 | | time and
location of the hearing. This notice may be sent by | 4 | | regular first class mail.
At the hearing, the court shall | 5 | | immediately, unless for good cause shown that
the hearing is to | 6 | | be continued, shall proceed to determine whether the property
| 7 | | which the judgment debtor declares to be exempt is exempt from | 8 | | judgment. The
restraining provisions of subsection (f) shall | 9 | | not apply to any property
determined by the court to be exempt.
| 10 | | (m) The judgment or balance due on the judgment becomes a | 11 | | lien when a
citation is served in accordance with subsection | 12 | | (a) of this Section. The lien
binds nonexempt personal | 13 | | property, including money, choses in action, and
effects of the | 14 | | judgment debtor as follows:
| 15 | | (1) When the citation is directed against the judgment | 16 | | debtor, upon all
personal property belonging to the | 17 | | judgment debtor in the possession or control
of the | 18 | | judgment debtor or which may thereafter be acquired or come | 19 | | due to the
judgment debtor to the time of the disposition | 20 | | of the citation.
| 21 | | (2) When the citation is directed against a third | 22 | | party, upon all personal
property belonging to the judgment | 23 | | debtor in the possession or control of the
third party or | 24 | | which thereafter may be acquired or come due the judgment | 25 | | debtor
and comes into the possession or control of the | 26 | | third party to the time of the
disposition of the citation.
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| 1 | | The lien established under this Section does not affect the | 2 | | rights of
citation respondents in property prior to the service | 3 | | of the citation upon them
and does not affect the rights of | 4 | | bona fide purchasers or lenders without
notice of the citation. | 5 | | The lien is effective for the period specified by
Supreme Court | 6 | | Rule.
| 7 | | This subsection (m), as added by Public Act 88-48, is a | 8 | | declaration of
existing law.
| 9 | | (n) If any provision of this Act or its application to any | 10 | | person or
circumstance is held invalid, the invalidity of that | 11 | | provision or application
does not affect the provisions or | 12 | | applications of the Act that can be given
effect without the | 13 | | invalid provision or application.
| 14 | | (o) The changes to this Section made by this amendatory Act | 15 | | of the 97th General Assembly apply only to supplementary | 16 | | proceedings commenced under this Section on or after the | 17 | | effective date of this amendatory Act of the 97th General | 18 | | Assembly. | 19 | | (Source: P.A. 97-350, eff. 1-1-12.)
| 20 | | (735 ILCS 5/12-107.5 new) | 21 | | Sec. 12-107.5. Body attachment order. | 22 | | (a) No order of body attachment or other civil order for | 23 | | the incarceration or detention of an individual to answer for a | 24 | | charge of indirect civil contempt shall issue unless the | 25 | | respondent has first had an opportunity, after personal service |
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| 1 | | or abode service of notice as provided in Section 2-203, to | 2 | | appear in court to show cause why the respondent should not be | 3 | | held in contempt. | 4 | | (b) The notice shall be an order to show cause. | 5 | | (c) Any order issued pursuant to subsection (a) shall | 6 | | expire 6 months after the date of issue. | 7 | | (d) Absent good cause, the first order issued pursuant to | 8 | | subsection (a) and directed to a respondent shall be in the | 9 | | nature of a recognizance bond in the sum of no more than | 10 | | $1,000. | 11 | | (e) Upon discharge of any bond secured by the posting of | 12 | | funds, the funds shall be returned to the respondent or other | 13 | | party posting the bond. In no case shall the respondent be | 14 | | required to pay the funds to the plaintiff.
| 15 | | Section 99. Effective date. This Act takes effect upon | 16 | | becoming law.".
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