HB0530 96TH GENERAL ASSEMBLY

LRB096 03817 AJO 13849 b

96TH GENERAL ASSEMBLY
State of Illinois
2009 and 2010
HB0530

Introduced 2/4/2009, by Rep. Mary E. Flowers

SYNOPSIS AS INTRODUCED:

735 ILCS 5/2-1303	from Ch. 110, par. 2-1303
735 ILCS 5/12-805	from Ch. 110, par. 12-805
735 ILCS 5/12-808	from Ch. 110, par. 12-808
735 ILCS 5/12-811	from Ch. 110, par. 12-811

Amends the Code of Civil Procedure. Provides that if the court finds that a judgment debtor is a family supporter and entitled to relief, the court may prospectively reduce the interest rate on a judgment to a rate not lower than 3%, taking into consideration the needs of the judgment debtor's dependents and the judgment debtor's ability to meet those needs. Provides that any party may request a readjustment of a reduced interest rate on a judgment based on a relevant change in circumstances. Provides that a judgment debtor shall be notified that the court may reduce the amount of wages withheld and reduce the rate of interest on the judgment, if the court finds that the judgment debtor is a "family supporter" and the full wage garnishment would result in a denial of necessities to the judgment debtor's dependents who are disabled or under the age of 18. Provides that under the Act, (1) "family supporter" means a person who supports and resides with one or more dependent children under the age of 18 or a dependent disabled person and whose relationship with the dependent child or disabled person is that of parent, stepparent, son, daughter, sibling, uncle, aunt, grandparent, or guardian; and (2) "dependent" means a child under the age of 18 or disabled person who resides with and is supported by the judgment debtor.

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 2-1303, 12-805, 12-808, and 12-811 as follows:

(735 ILCS 5/2-1303) (from Ch. 110, par. 2-1303)

Sec. 2-1303. Interest on judgment.

(a) Judgments recovered in any court shall draw interest at the rate of 9% per annum from the date of the judgment until satisfied, a rate as low as 3% per annum when the judgment debtor qualifies for relief under subsection (b), or, 6% per annum when the judgment debtor is a unit of local government, as defined in Section 1 of Article VII of the Constitution, a school district, a community college district, or any other governmental entity. When judgment is entered upon any award, report or verdict, interest shall be computed at the above rate, from the time when made or rendered to the time of entering judgment upon the same, and included in the judgment. Interest shall be computed and charged only on the unsatisfied portion of the judgment as it exists from time to time. The judgment debtor may by tender of payment of judgment, costs and interest accrued to the date of tender, stop the further accrual of interest on such judgment notwithstanding the prosecution of an appeal, or other steps to reverse, vacate or modify the judgment.

(b) Whenever the court finds that the judgment debtor is a family supporter and entitled to relief, pursuant to Section 12-811, the court may prospectively reduce the interest rate on a judgment, taking into consideration the needs of the judgment debtor's dependents and the judgment debtor's ability to meet those needs. A reduction in the rate of interest on a judgment ordered by the court shall be prospective only and shall not be below 3% per annum. Subsequent to the entry of an order reducing the rate of interest on a judgment pursuant to this subsection, any party may request that a prospective readjustment in the rate be made, based on a relevant change in circumstances.

(Source: P.A. 85-907.)

(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 50 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.

(4) Under Illinois law, the court may enter an order reducing the amount of wages withheld and reducing the rate of interest a judgment debtor is obligated to pay on the judgment, if the court finds that the judgment debtor is a "family supporter" and the full wage garnishment would result in a denial of necessities to the judgment debtor's dependents who reside with the judgment debtor and who are under the age of 18 or disabled. "Dependent" means a child under the age of 18 or disabled person who resides with and is supported by the judgment debtor.

You have the right to request a hearing before the court to dispute the wage deduction because the wages are exempt. If you are the "family supporter", you have the right to request: (1) a reduction in the amount of the wage garnishment because the full wage garnishment would result in a denial of necessities to your dependents who reside with you and who are under the age of 18 or disabled; and (2) a reduction in the interest rate on the judgment if the court determines that you are a family supporter and entitled to relief taking into consideration the needs of your dependents and your ability to meet those needs. You are a "family supporter", if you actually support and reside with one or more dependent children under the age of 18 or a dependent disabled adult and your relationship with the dependent child or dependent disabled adult is that of parent, stepparent, son, daughter, sibling, uncle, aunt, grandparent, or guardian. 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.

(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 shall have priority over all other liens obtained hereunder. 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 50 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.

(g) Notwithstanding any other provision, the court may enter an order reducing the amount of wages withheld, if the court finds that the judgment debtor is a family supporter and the full wage garnishment would result in a denial of necessities to his or her dependents who are under the age of 18 or disabled. The term "family supporter" means an individual who actually supports and resides with one or more dependent children under the age of 18 or a dependent disabled adult and whose relationship with the dependent child or dependent disabled adult is that of parent, stepparent, son, daughter, sibling, uncle, aunt, grandparent, or guardian. "Dependent" means a child under the age of 18 or disabled person who resides with and is supported by the judgment debtor.

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

(735 ILCS 5/12-811) (from Ch. 110, par. 12-811)

Sec. 12-811. Trial and judgment.

(a) The judgment creditor or the judgment debtor may contest the truth or sufficiency of the employer's answer and, in accordance with local court rules, the court shall immediately, unless for good cause the hearing is postponed, proceed to try the issues. The answer of the employer may be contested without further pleading.

(b) At any time on or before the return date, the judgment debtor may request a hearing to dispute the wage deduction because the wages are exempt or to reduce the amount of wages withheld because the judgment debtor is a family supporter under this Section by notifying the clerk of court before that time, using forms as may be provided by the clerk of the court. To obtain a hearing in counties with a population of 1,000,000 or more, the judgment debtor must notify the clerk of court in person and in writing at the clerk's office before the return date specified in the summons or appear in court on the date and time specified in the summons. To obtain a hearing in counties with a population of less than 1,000,000, the judgment debtor must notify the clerk of the court in writing at the clerk's office on or before the return date specified in the summons. The Clerk of Court will provide a hearing date and the necessary forms that must be prepared by the judgment debtor or the attorney for the judgment debtor 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. At the hearing the court shall immediately, unless for good cause the hearing is continued, proceed to try the issues.

(b-5) Notwithstanding any other provision, the court may enter an order reducing the amount of wages withheld and reduce the rate of interest the judgment debtor is obligated to pay on the judgment, if the court finds that the judgment debtor is obligated to pay on the judgment, the judgment debtor is a family supporter, and the full wage garnishment would result in a denial of necessities to his or her dependents who are under the age of 18 or disabled. For purposes of this Act:

(1) "family supporter" means an individual who actually supports and resides with one or more dependent children under the age of 18 or a dependent disabled adult and whose relationship with the dependent child or dependent disabled adult is that of parent, stepparent, son, daughter, sibling, uncle, aunt, grandparent or guardian; and

(2) "dependent" means a child under the age of 18 or disabled person who resides with and is supported by the judgment debtor.

(c) The trial shall be conducted as in other civil cases.

(d) If the finding is against an employer, a deduction order shall be entered against the employer and in favor of the judgment debtor to whom the employer is indebted, in the same manner as if the facts are admitted.

(e) No deduction order shall be entered in favor of the judgment creditor unless the affidavit filed by the judgment creditor certifies that a copy of the wage deduction notice has been mailed to the judgment debtor, under Section 12-805, and the employer's answer provides a summary of the computation used to determine the amount of non-exempt wages. If the employer is a federal agency employer, a deduction order shall be entered in favor of the judgment creditor if (i) the affidavit filed by the judgment creditor certifies that a copy of the wage deduction notice has been mailed to the judgment debtor under Section 12-805 and (ii) the federal agency employer identifies, on or with its periodic payments made under subsection (b-5) of Section 12-808, the computation method used to determine the amount of non-exempt wages. A federal agency employer shall not be required to provide a summary of the computation used to determine the amount of non-exempt wages.

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