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.


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A BILL FOR

 

HB2949LRB097 06289 KTG 46365 b

1    AN ACT concerning civil law.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Code of Civil Procedure is amended by
5changing 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
8of this Act:
9    "Deduction order" means an order entered pursuant to
10Section 12-811 of this Act.
11    "Employer" means the person named as employer in the
12affidavit filed under Section 12-805.
13    "Federal agency employer" means an agency of the federal
14government as defined in 5 USC 5520a(a)(1), as amended from
15time to time.
16    "Judgment creditor" means the recipient of any judgment,
17except a judgment by confession which has not been confirmed as
18provided in Part 8 of Article XII of this Act.
19    "Judgment debtor" means a person against whom a judgment
20has been obtained.
21    "Wages" means any hourly pay, salaries, commissions,
22bonuses, or other compensation owed by an employer to a
23judgment debtor.

 

 

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1    "Judgment arising from financial exploitation of an
2elderly person or person with a disability" means a judgment
3entered under subsection (g) of Section 16-1.3 of the Criminal
4Code 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
9other designee of (1) an affidavit that the affiant believes
10any person is indebted to the judgment debtor for wages due or
11to become due, as provided in Part 8 of Article XII of this
12Act, and includes the last address of the judgment debtor known
13to the affiant as well as the name of the judgment debtor, and
14a certification by the judgment creditor or his attorney that,
15before filing the affidavit, the wage deduction notice has been
16mailed to the judgment debtor by first class mail at the
17judgment debtor's last known address, and (2) written
18interrogatories to be answered by the employer with respect to
19the indebtedness, the clerk of the court in which the judgment
20was entered shall issue summons against the person named in the
21affidavit as employer commanding the employer to appear in the
22court and answer the interrogatories in writing under oath. The
23interrogatories shall elicit all the information necessary to
24determine the proper amount of non-exempt wages. The
25interrogatories shall require that the employer certify that a

 

 

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1copy of the completed interrogatories as specified in
2subsection (c) of Section 12-808 has been mailed or hand
3delivered to the judgment debtor and shall be in a form
4consistent with local court rules. The summons shall further
5command federal agency employers, upon effective service of
6summons pursuant to 5 USC 5520a, to commence to pay over
7deducted wages in accordance with Section 12-808. The summons
8shall be in a form consistent with local court rules. The
9summons shall be accompanied by a copy of the underlying
10judgment or a certification by the clerk of the court that
11entered the judgment, or by the attorney for the judgment
12creditor, setting forth the date and amount of the judgment,
13allowable costs expended, interest accumulated, credits paid
14by or on behalf of the judgment debtor and the balance due the
15judgment creditor, and one copy of a wage deduction notice in
16substantially 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)
4NOTICE: The court shall be asked to issue a wage deduction
5summons against the employer named above for wages due or about
6to become due to you. The wage deduction summons may be issued
7on the basis of a judgment against you in favor of the judgment
8creditor in the amount stated above.
9    The amount of wages that may be deducted is limited by
10federal 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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1dispute the wage deduction because the wages are exempt. To
2obtain a hearing in counties with a population of 1,000,000 or
3more, you must notify the Clerk of the Court in person and in
4writing at (insert address of Clerk) before the Return Date
5specified above or appear in court on the date and time on that
6Return Date. To obtain a hearing in counties with a population
7of less than 1,000,000, you must notify the Clerk of the Court
8in writing at (insert address of clerk) on or before the Return
9Date specified above. The Clerk of the Court will provide a
10hearing date and the necessary forms that must be prepared by
11you or your attorney and sent to the judgment creditor and the
12employer, or their attorney, regarding the time and location of
13the hearing. This notice may be sent by regular first class
14mail."
15    (b) In a county with a population of less than 1,000,000,
16unless otherwise provided by circuit court rule, at the request
17of the judgment creditor or his or her attorney and instead of
18personal service, service of a summons for a wage deduction may
19be 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
3deduction may be served and returned in the manner provided by
4Supreme Court rule for service, otherwise than by publication,
5of a notice for additional relief upon a party in default.
6    (d) A summons for a wage deduction that is based on a
7judgment arising from financial exploitation of an elderly
8person or person with a disability shall prominently state that
9it must be given priority over other wage deductions except for
10wage deductions for the support of a spouse or dependent
11children.
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
16employee the amount of his or her exempt wages.
17    (b) To the extent of the amount due upon the judgment and
18costs, the employer shall hold, subject to order of court, any
19non-exempt wages due or which subsequently come due. The
20judgment or balance due thereon is a lien on wages due at the
21time of the service of summons, and such lien shall continue as
22to subsequent earnings until the total amount due upon the
23judgment and costs is paid, except that such lien on subsequent
24earnings shall terminate sooner if the employment relationship
25is terminated or if the underlying judgment is vacated or

 

 

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1modified.
2    (b-5) If the employer is a federal agency employer and the
3creditor is represented by an attorney, then the employer, upon
4service of summons and to the extent of the amount due upon the
5judgment and costs, shall commence to pay over to the attorney
6for the judgment creditor any non-exempt wages due or that
7subsequently come due. The attorney for the judgment creditor
8shall thereafter hold the deducted wages subject to further
9order of the court and shall make answer to the court regarding
10amounts received from the federal agency employer. The federal
11agency employer's periodic payments shall be considered a
12sufficient answer to the interrogatories.
13    (c) Except as provided in subsection (b-5), the employer
14shall file, on or before the return date or within the further
15time that the court for cause may allow, a written answer under
16oath to the interrogatories, setting forth the amount due as
17wages to the judgment debtor for the payroll periods ending
18immediately prior to the service of the summons and a summary
19of the computation used to determine the amount of non-exempt
20wages. Except as provided in subsection (b-5), the employer
21shall mail by first class mail or hand deliver a copy of the
22answer to the judgment debtor at the address specified in the
23affidavit filed under Section 12-805 of this Act, or at any
24other address or location of the judgment debtor known to the
25employer.
26    A lien obtained hereunder shall have priority over any

 

 

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1subsequent lien obtained hereunder, except that liens for the
2support of a spouse or dependent children and liens based on
3judgments arising from financial exploitation of an elderly
4person or person with a disability shall have priority over all
5other liens obtained hereunder. Liens for the support of a
6spouse or dependent children have priority over liens based on
7judgments arising from financial exploitation of an elderly
8person or person with a disability. Subsequent summonses shall
9be effective in the order in which they are served.
10    (d) The Illinois Supreme Court may by rule allow an
11employer to file answers to interrogatories by facsimile
12transmission.
13    (e) Pursuant to answer under oath to the interrogatories by
14the employer, an order shall be entered compelling the employer
15to deduct from wages of the judgment debtor subject to
16collection under a deduction order an amount which is the
17lesser of (i) 15% of the gross amount of the wages or (ii) the
18amount by which disposable earnings for a week exceed 45 times
19the Federal Minimum Hourly Wage prescribed by Section 206(a)(1)
20of Title 29 of the United States Code, as amended, in effect at
21the time the amounts are payable, for each pay period in which
22statutory exemptions under Section 12-804 and child support
23garnishments, if any, leave funds to be remitted or, under a
24wage deduction summons served on or after January 1, 2006, the
25minimum hourly wage prescribed by Section 4 of the Minimum Wage
26Law, whichever is greater. The order shall further provide that

 

 

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1deducted wages shall be remitted to the creditor or creditor's
2attorney on a monthly basis.
3    (f) If after the entry of a deduction order, the employer
4ceases to remit funds to the plaintiff pursuant to the order
5without a lawful excuse (which would terminate the employer's
6obligation under the deduction order such as the debtor having
7filed a bankruptcy, the debtor having left employment or the
8employer having received service of a support order against the
9judgment debtor having priority over the wage deduction
10proceedings), the court shall, upon plaintiff's motion, enter a
11conditional judgment against the employer for the balance due
12on the judgment. The plaintiff may then issue a Summons After
13Conditional Judgment. After service of the Summons After
14Conditional Judgment, the employer may show cause why the
15conditional judgment, or some portion thereof should not be
16made a final judgment. If the employer shall fail to respond or
17show cause why the conditional judgment or some portion thereof
18should not be made final, the court shall confirm the
19conditional judgment and make it final as to the employer plus
20additional court costs.
21(Source: P.A. 94-306, eff. 1-1-06; 95-661, eff. 1-1-08.)