HB2949 97TH GENERAL ASSEMBLY

LRB097 06289 KTG 46365 b

97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012
HB2949

Introduced 2/23/2011, by Rep. Michelle Mussman

SYNOPSIS AS INTRODUCED:

735 ILCS 5/12-801	from Ch. 110, par. 12-801
735 ILCS 5/12-805	from Ch. 110, par. 12-805
735 ILCS 5/12-808	from Ch. 110, par. 12-808

Amends the wage deduction provisions of the Code of Civil Procedure. Provides that a lien on wages in a wage deduction based on a judgment arising from financial exploitation of an elderly person or person with a disability has priority over liens on wages in other wage deductions, except those for the support of a spouse or dependent children. Requires a summons for a wage deduction that is based on a judgment arising from financial exploitation of an elderly person or person with a disability to prominently state that it must be given priority over other wage deductions except for wage deductions for the support of a spouse or dependent children.

A BILL FOR

AN ACT concerning civil law.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Code of Civil Procedure is amended by changing Sections 12-801, 12-805, and 12-808 as follows:

(735 ILCS 5/12-801) (from Ch. 110, par. 12-801)

Sec. 12-801. Definitions. As used in Part 8 of Article XII of this Act:

"Deduction order" means an order entered pursuant to Section 12-811 of this Act.

"Employer" means the person named as employer in the affidavit filed under Section 12-805.

"Federal agency employer" means an agency of the federal government as defined in 5 USC 5520a(a)(1), as amended from time to time.

"Judgment creditor" means the recipient of any judgment, except a judgment by confession which has not been confirmed as provided in Part 8 of Article XII of this Act.

"Judgment debtor" means a person against whom a judgment has been obtained.

"Wages" means any hourly pay, salaries, commissions, bonuses, or other compensation owed by an employer to a judgment debtor.

"Judgment arising from financial exploitation of an elderly person or person with a disability" means a judgment entered under subsection (g) of Section 16-1.3 of the Criminal Code of 1961.

(Source: P.A. 89-28, eff. 6-23-95.)

(735 ILCS 5/12-805) (from Ch. 110, par. 12-805)

Sec. 12-805. Summons; Issuance.

(a) Upon the filing by a judgment creditor, its attorney or other designee of (1) an affidavit that the affiant believes any person is indebted to the judgment debtor for wages due or to become due, as provided in Part 8 of Article XII of this Act, and includes the last address of the judgment debtor known to the affiant as well as the name of the judgment debtor, and a certification by the judgment creditor or his attorney that, before filing the affidavit, the wage deduction notice has been mailed to the judgment debtor by first class mail at the judgment debtor's last known address, and (2) written interrogatories to be answered by the employer with respect to the indebtedness, the clerk of the court in which the judgment was entered shall issue summons against the person named in the affidavit as employer commanding the employer to appear in the court and answer the interrogatories in writing under oath. The interrogatories shall elicit all the information necessary to determine the proper amount of non-exempt wages. The interrogatories shall require that the employer certify that a copy of the completed interrogatories as specified in subsection (c) of Section 12-808 has been mailed or hand delivered to the judgment debtor and shall be in a form consistent with local court rules. The summons shall further command federal agency employers, upon effective service of summons pursuant to 5 USC 5520a, to commence to pay over deducted wages in accordance with Section 12-808. The summons shall be in a form consistent with local court rules. The summons shall be accompanied by a copy of the underlying judgment or a certification by the clerk of the court that entered the judgment, or by the attorney for the judgment creditor, setting forth the date and amount of the judgment, allowable costs expended, interest accumulated, credits paid by or on behalf of the judgment debtor and the balance due the judgment creditor, and one copy of a wage deduction notice in substantially the following form:

"WAGE DEDUCTION NOTICE

(Name and address of Court)

Name of Case: (Name of Judgment Creditor),

Judgment Creditor v.

(Name of Judgment Debtor),

Judgment Debtor.

Address of Judgment Debtor: (Insert last known address)

Name and Address of Attorney for Judgment

Creditor or of Judgment Creditor (if no

attorney is listed): (Insert name and address)

Amount of Judgment: $..........

Employer: (Name of Employer)

Return Date: (Insert return date specified in summons)

NOTICE: The court shall be asked to issue a wage deduction summons against the employer named above for wages due or about to become due to you. The wage deduction summons may be issued on the basis of a judgment against you in favor of the judgment creditor in the amount stated above.

The amount of wages that may be deducted is limited by federal and Illinois law.

(1) Under Illinois law, the amount of wages that may be deducted is limited to the lesser of (i) 15% of gross weekly wages or (ii) the amount by which disposable earnings for a week exceed the total of 45 times the federal minimum hourly wage or, under a wage deduction summons served on or after January 1, 2006, the minimum hourly wage prescribed by Section 4 of the Minimum Wage Law, whichever is greater.

(2) Under federal law, the amount of wages that may be deducted is limited to the lesser of (i) 25% of disposable earnings for a week or (ii) the amount by which disposable earnings for a week exceed 30 times the federal minimum hourly wage.

(3) Pension and retirement benefits and refunds may be claimed as exempt from wage deduction under Illinois law.

You have the right to request a hearing before the court to dispute the wage deduction because the wages are exempt. To obtain a hearing in counties with a population of 1,000,000 or more, you must notify the Clerk of the Court in person and in writing at (insert address of Clerk) before the Return Date specified above or appear in court on the date and time on that Return Date. To obtain a hearing in counties with a population of less than 1,000,000, you must notify the Clerk of the Court in writing at (insert address of clerk) on or before the Return Date specified above. The Clerk of the Court will provide a hearing date and the necessary forms that must be prepared by you or your attorney and sent to the judgment creditor and the employer, or their attorney, regarding the time and location of the hearing. This notice may be sent by regular first class mail."

(b) In a county with a population of less than 1,000,000, unless otherwise provided by circuit court rule, at the request of the judgment creditor or his or her attorney and instead of personal service, service of a summons for a wage deduction may be made as follows:

(1) For each employer to be served, the judgment creditor or his or her attorney shall pay to the clerk of the court a fee of $2, plus the cost of mailing, and furnish to the clerk an original and one copy of a summons, an original and one copy of the interrogatories and an affidavit setting forth the employer's mailing address, an original and one copy of the wage deduction notice required by subsection (a) of this Section, and a copy of the judgment or certification described in subsection (a) of this Section. The original judgment shall be retained by the clerk.

(2) The clerk shall mail to the employer, at the address appearing in the affidavit, the copy of the judgment or certification described in subsection (a) of this Section, the summons, the interrogatories, and the wage deduction notice required by subsection (a) of this Section, by certified or registered mail, return receipt requested, showing to whom delivered and the date and address of delivery. This Mailing shall be mailed on a "restricted delivery" basis when service is directed to a natural person. The envelope and return receipt shall bear the return address of the clerk, and the return receipt shall be stamped with the docket number of the case. The receipt for certified or registered mail shall state the name and address of the addressee, the date of the mailing, shall identify the documents mailed, and shall be attached to the original summons.

(3) The return receipt must be attached to the original summons and, if it shows delivery at least 3 days before the return date, shall constitute proof of service of any documents identified on the return receipt as having been mailed.

(4) The clerk shall note the fact of service in a permanent record.

(c) Instead of personal service, a summons for a wage deduction may be served and returned in the manner provided by Supreme Court rule for service, otherwise than by publication, of a notice for additional relief upon a party in default.

(d) A summons for a wage deduction that is based on a judgment arising from financial exploitation of an elderly person or person with a disability shall prominently state that it must be given priority over other wage deductions except for wage deductions for the support of a spouse or dependent children.

(Source: P.A. 94-306, eff. 1-1-06.)

(735 ILCS 5/12-808) (from Ch. 110, par. 12-808)

Sec. 12-808. Duty of employer.

(a) An employer served as herein provided shall pay the employee the amount of his or her exempt wages.

(b) To the extent of the amount due upon the judgment and costs, the employer shall hold, subject to order of court, any non-exempt wages due or which subsequently come due. The judgment or balance due thereon is a lien on wages due at the time of the service of summons, and such lien shall continue as to subsequent earnings until the total amount due upon the judgment and costs is paid, except that such lien on subsequent earnings shall terminate sooner if the employment relationship is terminated or if the underlying judgment is vacated or modified.

(b-5) If the employer is a federal agency employer and the creditor is represented by an attorney, then the employer, upon service of summons and to the extent of the amount due upon the judgment and costs, shall commence to pay over to the attorney for the judgment creditor any non-exempt wages due or that subsequently come due. The attorney for the judgment creditor shall thereafter hold the deducted wages subject to further order of the court and shall make answer to the court regarding amounts received from the federal agency employer. The federal agency employer's periodic payments shall be considered a sufficient answer to the interrogatories.

(c) Except as provided in subsection (b-5), the employer shall file, on or before the return date or within the further time that the court for cause may allow, a written answer under oath to the interrogatories, setting forth the amount due as wages to the judgment debtor for the payroll periods ending immediately prior to the service of the summons and a summary of the computation used to determine the amount of non-exempt wages. Except as provided in subsection (b-5), the employer shall mail by first class mail or hand deliver a copy of the answer to the judgment debtor at the address specified in the affidavit filed under Section 12-805 of this Act, or at any other address or location of the judgment debtor known to the employer.

A lien obtained hereunder shall have priority over any subsequent lien obtained hereunder, except that liens for the support of a spouse or dependent children and liens based on judgments arising from financial exploitation of an elderly person or person with a disability shall have priority over all other liens obtained hereunder. Liens for the support of a spouse or dependent children have priority over liens based on judgments arising from financial exploitation of an elderly person or person with a disability. Subsequent summonses shall be effective in the order in which they are served.

(d) The Illinois Supreme Court may by rule allow an employer to file answers to interrogatories by facsimile transmission.

(e) Pursuant to answer under oath to the interrogatories by the employer, an order shall be entered compelling the employer to deduct from wages of the judgment debtor subject to collection under a deduction order an amount which is the lesser of (i) 15% of the gross amount of the wages or (ii) the amount by which disposable earnings for a week exceed 45 times the Federal Minimum Hourly Wage prescribed by Section 206(a)(1) of Title 29 of the United States Code, as amended, in effect at the time the amounts are payable, for each pay period in which statutory exemptions under Section 12-804 and child support garnishments, if any, leave funds to be remitted or, under a wage deduction summons served on or after January 1, 2006, the minimum hourly wage prescribed by Section 4 of the Minimum Wage Law, whichever is greater. The order shall further provide that deducted wages shall be remitted to the creditor or creditor's attorney on a monthly basis.

(f) If after the entry of a deduction order, the employer ceases to remit funds to the plaintiff pursuant to the order without a lawful excuse (which would terminate the employer's obligation under the deduction order such as the debtor having filed a bankruptcy, the debtor having left employment or the employer having received service of a support order against the judgment debtor having priority over the wage deduction proceedings), the court shall, upon plaintiff's motion, enter a conditional judgment against the employer for the balance due on the judgment. The plaintiff may then issue a Summons After Conditional Judgment. After service of the Summons After Conditional Judgment, the employer may show cause why the conditional judgment, or some portion thereof should not be made a final judgment. If the employer shall fail to respond or show cause why the conditional judgment or some portion thereof should not be made final, the court shall confirm the conditional judgment and make it final as to the employer plus additional court costs.

(Source: P.A. 94-306, eff. 1-1-06; 95-661, eff. 1-1-08.)