Full Text of SB0229 95th General Assembly
SB0229 95TH GENERAL ASSEMBLY
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95TH GENERAL ASSEMBLY
State of Illinois
2007 and 2008 SB0229
Introduced 2/7/2007, by Sen. Ira I. Silverstein SYNOPSIS AS INTRODUCED: |
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Amends the Code of Civil Procedure. Provides that a judgment creditor may recover a corporate judgment debtor's property for the creditor's use. Provides that a debtor may be compelled to resign memberships in exchanges, clubs, or other entities. Provides that a judgment debtor's property that is not amenable to a sheriff's sale may be sold by other means. Provides property held by a third party that is determined to be wages is subject to a wage deduction. Provides recoverable costs include the cost of levy and replevin bonds. Provides that a federal judgment entered in Illinois shall be afforded recognition as if it were a circuit court judgment. Provides that wages subject to collection shall be (at present, shall not exceed) the lesser of 15% of the gross amount paid or the amount by which the disposable earnings exceed 45 times the federal minimum hourly wage. Provides that if an employer ceases to remit funds under a wage deduction order without a lawful excuse, a court may enter a conditional judgment against the employer for the balance due on the judgment and issue a Summons After Conditional Judgment requiring the employer to show cause the conditional judgment should not become final. Provides that if a certification of judgment balance is not provided to the employer, the employer must continue to withhold funds from the defendant's wages and hold the funds until the certification is provided; the certification need not be filed with the court. Provides that the fee of 2% (at present, $12 or 2%, whichever is greater) of the amount deducted from wages shall be retained by the employer. Provides that if a defendant fails to deliver chattel to the sheriff and the plaintiff has a reasonable belief of the chattel's location, the court may authorize the sheriff to use reasonable force to recover the chattel. Provides that if a mobile home subject to a replevin action is occupied, the court may issue a forcible order for the removal of personal property of the tenant but the order has to provide reasonable time and notice for the defendant and unknown occupants.
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A BILL FOR
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SB0229 |
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LRB095 07909 AJO 28071 b |
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| AN ACT concerning civil law.
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| Be it enacted by the People of the State of Illinois,
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| represented in the General Assembly:
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| Section 5. The Code of Civil Procedure is amended by | 5 |
| changing Sections 2-1402, 12-501, 12-803, 12-808, 12-808.5, | 6 |
| 12-814, 19-117, and 19-123 and by adding Sections 5-126.5 and | 7 |
| 19-129 as follows:
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| (735 ILCS 5/2-1402) (from Ch. 110, par. 2-1402)
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| Sec. 2-1402. Supplementary proceedings.
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| (a) A judgment creditor, or his or her successor in | 11 |
| interest when that
interest is made to appear of record, is | 12 |
| entitled to prosecute supplementary
proceedings for the | 13 |
| purposes of examining the judgment debtor or any other
person | 14 |
| to discover assets or income of the debtor not exempt from the
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| enforcement of the judgment, a deduction order or garnishment, | 16 |
| and of
compelling the application of non-exempt assets or | 17 |
| income discovered toward the
payment of the amount due under | 18 |
| the judgment. A supplementary proceeding shall
be commenced by | 19 |
| the service of a citation issued by the clerk. The procedure
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| for conducting supplementary proceedings shall be prescribed | 21 |
| by rules. It is
not a prerequisite to the commencement of a | 22 |
| supplementary proceeding that a
certified copy of the judgment | 23 |
| has been returned wholly or partly unsatisfied.
All citations |
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| issued by the clerk shall have the following language, or
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| language substantially similar thereto, stated prominently on | 3 |
| the front, in
capital letters: "YOUR FAILURE TO APPEAR IN COURT | 4 |
| AS HEREIN DIRECTED MAY CAUSE
YOU TO BE ARRESTED AND BROUGHT | 5 |
| BEFORE THE COURT TO ANSWER TO A CHARGE OF
CONTEMPT OF COURT, | 6 |
| WHICH MAY BE PUNISHABLE BY IMPRISONMENT IN THE COUNTY JAIL."
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| The court shall not grant a continuance of the supplementary | 8 |
| proceeding except
upon good cause shown.
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| (b) Any citation served upon a judgment debtor or any other | 10 |
| person shall
include a certification by the attorney for the | 11 |
| judgment creditor or the
judgment creditor setting forth the | 12 |
| amount of the judgment, the date of the
judgment, or its | 13 |
| revival date, the balance due thereon, the name of the court,
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| and the number of the case, and a copy of the citation notice | 15 |
| required by this
subsection. Whenever a citation is served upon | 16 |
| a person or party other than
the judgment debtor, the officer | 17 |
| or person serving the citation shall send to
the judgment | 18 |
| debtor, within three business days of the service upon the | 19 |
| cited
party, a copy of the citation and the citation notice, | 20 |
| which may be sent
by regular first-class mail to the judgment | 21 |
| debtor's last known address. In no
event shall a citation | 22 |
| hearing be held sooner than five business days after the
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| mailing of the citation and citation notice to the judgment | 24 |
| debtor, except by
agreement of the parties. The citation notice | 25 |
| need not be mailed to a
corporation, partnership, or | 26 |
| association. The citation notice shall be in
substantially the |
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| following form:
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| "CITATION NOTICE
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| (Name and address of Court)
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| Name of Case: (Name of Judgment Creditor),
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| Judgment Creditor v.
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| (Name of Judgment Debtor),
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| Judgment Debtor.
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| Address of Judgment Debtor: (Insert last known
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| address)
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| Name and address of Attorney for Judgment
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| Creditor or of Judgment Creditor (If no
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| attorney is listed): (Insert name and address)
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| Amount of Judgment: $ (Insert amount)
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| Name of Person Receiving Citation: (Insert name)
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| Court Date and Time: (Insert return date and time
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| specified in citation)
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| NOTICE: The court has issued a citation against the person | 18 |
| named above. The
citation directs that person to appear in | 19 |
| court to be examined for the purpose
of allowing the judgment | 20 |
| creditor to discover income and assets belonging to
the | 21 |
| judgment debtor or in which the judgment debtor has an | 22 |
| interest. The
citation was issued on the basis of a judgment | 23 |
| against the judgment debtor in
favor of the judgment creditor | 24 |
| in the amount stated above. On or after the
court date stated | 25 |
| above, the court may compel the application of any
discovered | 26 |
| income or assets toward payment on the judgment.
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| The amount of income or assets that may be applied toward | 2 |
| the judgment is
limited by federal and Illinois law. The | 3 |
| JUDGMENT DEBTOR HAS THE RIGHT TO
ASSERT STATUTORY EXEMPTIONS | 4 |
| AGAINST CERTAIN INCOME OR ASSETS OF THE JUDGMENT
DEBTOR WHICH | 5 |
| MAY NOT BE USED TO SATISFY THE JUDGMENT IN THE AMOUNT STATED
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| ABOVE:
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| (1) Under Illinois or federal law, the exemptions of | 8 |
| personal property
owned by the debtor include the debtor's | 9 |
| equity interest, not to exceed $4,000
in value, in any | 10 |
| personal property as chosen by the debtor; Social Security | 11 |
| and
SSI benefits; public assistance benefits; unemployment | 12 |
| compensation benefits;
worker's compensation benefits; | 13 |
| veteran's benefits; circuit breaker property
tax relief | 14 |
| benefits; the debtor's equity interest, not to exceed | 15 |
| $2,400 in
value, in any one motor vehicle, and the debtor's | 16 |
| equity interest, not to
exceed $1,500 in value, in any | 17 |
| implements, professional books, or tools of the
trade of | 18 |
| the debtor.
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| (2) Under Illinois law, every person is entitled to an | 20 |
| estate in
homestead, when it is owned and occupied as a | 21 |
| residence, to the extent in value
of $15,000, which | 22 |
| homestead is exempt from judgment.
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| (3) Under Illinois law, the amount of wages that may be | 24 |
| applied toward a
judgment is limited to the lesser of (i) | 25 |
| 15% of gross weekly wages or (ii) the
amount by which | 26 |
| disposable earnings for a week exceed the total of 45 times |
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| the
federal minimum hourly wage or, under a wage deduction | 2 |
| summons served on or after January 1, 2006, the Illinois | 3 |
| minimum hourly wage, whichever is greater.
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| (4) Under federal law, the amount of wages that may be | 5 |
| applied toward a
judgment is limited to the lesser of (i) | 6 |
| 25% of disposable earnings for a week
or (ii) the amount by | 7 |
| which disposable earnings for a week exceed 30 times the
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| federal minimum hourly wage.
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| (5) Pension and retirement benefits and refunds may be | 10 |
| claimed as exempt
under Illinois law.
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| The judgment debtor may have other possible exemptions | 12 |
| under the law.
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| THE JUDGMENT DEBTOR HAS THE RIGHT AT THE CITATION HEARING | 14 |
| TO DECLARE EXEMPT
CERTAIN INCOME OR ASSETS OR BOTH. The | 15 |
| judgment debtor also has the right to
seek a declaration at an | 16 |
| earlier date, by notifying the clerk in writing at
(insert | 17 |
| address of clerk). When so notified, the Clerk of the Court | 18 |
| will
obtain a prompt hearing date from the court and will
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| provide the necessary forms that must be prepared by the | 20 |
| judgment debtor or the
attorney for the judgment debtor and | 21 |
| sent to the judgment creditor and the
judgment creditor's | 22 |
| attorney regarding the time and location of the hearing.
This | 23 |
| notice may be sent by regular first class mail."
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| (c) When assets or income of the judgment debtor not exempt | 25 |
| from
the satisfaction of a judgment, a deduction order or | 26 |
| garnishment are
discovered, the court may, by appropriate order |
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| or judgment:
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| (1) Compel the judgment debtor to deliver up, to be | 3 |
| applied in
satisfaction of the judgment, in whole or in | 4 |
| part, money, choses in
action, property or effects in his | 5 |
| or her possession or control, so discovered,
capable of | 6 |
| delivery and to which his or her title or right of | 7 |
| possession is not
substantially disputed.
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| (2) Compel the judgment debtor to pay to the judgment | 9 |
| creditor or
apply on the judgment, in installments, a | 10 |
| portion of his or her income, however
or whenever earned or | 11 |
| acquired, as the court may deem proper, having due
regard | 12 |
| for the reasonable requirements of the judgment debtor and | 13 |
| his or her
family, if dependent upon him or her, as well as | 14 |
| any payments required to be
made by prior order of court or | 15 |
| under wage assignments outstanding; provided
that the | 16 |
| judgment debtor shall not be compelled to pay income which | 17 |
| would be
considered exempt as wages under the Wage | 18 |
| Deduction Statute. The court may
modify an order for | 19 |
| installment payments, from time to time, upon application
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| of either party upon notice to the other.
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| (3) Compel any person cited, other than the judgment | 22 |
| debtor, to
deliver up any assets so discovered, to be | 23 |
| applied in satisfaction of
the judgment, in whole or in | 24 |
| part, when those assets are held under such
circumstances | 25 |
| that in an action by the judgment debtor he or she could | 26 |
| recover
them in specie or obtain a judgment for the |
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| proceeds or value thereof as
for conversion or | 2 |
| embezzlement. A judgment creditor may recover a corporate | 3 |
| judgment debtor's property on behalf of the judgment debtor | 4 |
| for use of the judgment creditor by filing an appropriate | 5 |
| petition within the citation proceedings.
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| (4) Enter any order upon or judgment against the person | 7 |
| cited that
could be entered in any garnishment proceeding.
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| (5) Compel any person cited to execute an assignment of | 9 |
| any chose in
action or a conveyance of title to real or | 10 |
| personal property or resign memberships in exchanges, | 11 |
| clubs, or other entities
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same manner and to the | 12 |
| same extent as a court could do in any proceeding
by a | 13 |
| judgment creditor to enforce payment of a judgment or in | 14 |
| aid of
the enforcement of a judgment.
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| (6) Authorize the judgment creditor to maintain an | 16 |
| action against
any person or corporation that, it appears | 17 |
| upon proof satisfactory to
the court, is indebted to the | 18 |
| judgment debtor, for the recovery of the
debt, forbid the | 19 |
| transfer or other disposition of the debt until an
action | 20 |
| can be commenced and prosecuted to judgment, direct that | 21 |
| the
papers or proof in the possession or control of the | 22 |
| debtor and necessary
in the prosecution of the action be | 23 |
| delivered to the creditor or
impounded in court, and | 24 |
| provide for the disposition of any moneys in
excess of the | 25 |
| sum required to pay the judgment creditor's judgment and
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| costs allowed by the court.
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| (d) No order or judgment shall be entered under subsection | 2 |
| (c) in favor of
the judgment creditor unless there appears of | 3 |
| record a certification of
mailing showing that a copy of the | 4 |
| citation and a copy of the citation notice
was mailed to the | 5 |
| judgment debtor as required by subsection (b).
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| (e) All property ordered to be delivered up shall, except | 7 |
| as
otherwise provided in this Section, be delivered to the | 8 |
| sheriff to be
collected by the sheriff or sold at public sale | 9 |
| and the proceeds thereof
applied towards the payment of costs | 10 |
| and the satisfaction of the judgment. If the judgment debtor's | 11 |
| property is of such a nature that it is not readily delivered | 12 |
| up to the sheriff for public sale or if another method of sale | 13 |
| is more appropriate to liquidate the property or enhance its | 14 |
| value at sale, the court may order the sale of such property by | 15 |
| the debtor, third party respondent, or by a selling agent other | 16 |
| than the sheriff upon such terms as are just and equitable. The | 17 |
| proceeds of sale, after deducting reasonable and necessary | 18 |
| expenses, are to be turned over to the creditor and applied to | 19 |
| the balance due on the judgment.
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| (f) (1) The citation may prohibit the party to whom it is | 21 |
| directed from
making or allowing any transfer or other | 22 |
| disposition of, or interfering with,
any property not | 23 |
| exempt from the enforcement of a judgment therefrom, a
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| deduction order or garnishment, belonging to the judgment | 25 |
| debtor or to which he
or she may be entitled or which may | 26 |
| thereafter be acquired by or become due to
him or her, and |
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| from paying over or otherwise disposing of any moneys not | 2 |
| so
exempt which are due or to become due to the judgment | 3 |
| debtor, until the further
order of the court or the | 4 |
| termination of the proceeding, whichever occurs
first. The | 5 |
| third party may not be obliged to withhold the payment of | 6 |
| any
moneys beyond double the amount of the balance due | 7 |
| sought to be enforced by the
judgment creditor. The court | 8 |
| may punish any party who violates the restraining
provision | 9 |
| of a citation as and for a contempt, or if the party is a | 10 |
| third party
may enter judgment against him or her in the | 11 |
| amount of the unpaid portion of
the judgment and costs | 12 |
| allowable under this Section, or in the amount of the
value | 13 |
| of the property transferred, whichever is lesser.
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| (2) The court may enjoin any person, whether or not a | 15 |
| party to the
supplementary proceeding, from making or | 16 |
| allowing any transfer or other
disposition of, or | 17 |
| interference with, the property of the judgment
debtor not | 18 |
| exempt from the enforcement of a judgment, a deduction | 19 |
| order or
garnishment, or the property or debt not so exempt | 20 |
| concerning which any
person is required to attend and be | 21 |
| examined until further direction in the
premises. The | 22 |
| injunction order shall remain in effect until vacated by | 23 |
| the
court or until the proceeding is terminated, whichever | 24 |
| first occurs.
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| (g) If it appears that any property, chose in action, | 26 |
| credit or
effect discovered, or any interest therein, is |
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| claimed by any person, the court
shall, as in garnishment | 2 |
| proceedings, permit or require the claimant to appear
and | 3 |
| maintain his or her right. The rights of the person cited
and | 4 |
| the rights of any adverse claimant shall be asserted and | 5 |
| determined
pursuant to the law relating to garnishment | 6 |
| proceedings.
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| (h) Costs in proceedings authorized by this Section shall | 8 |
| be
allowed, assessed and paid in accordance with rules, | 9 |
| provided that if the
court determines, in its discretion, that | 10 |
| costs incurred by the judgment
creditor were improperly | 11 |
| incurred, those costs shall be paid by the judgment
creditor.
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| (i) This Section is in addition to and does not affect
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| enforcement of judgments or proceedings supplementary thereto, | 14 |
| by any other
methods now or hereafter provided by law.
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| (j) This Section does not grant the power to any court to | 16 |
| order
installment or other payments from, or compel the sale, | 17 |
| delivery,
surrender, assignment or conveyance of any property | 18 |
| exempt by statute
from the enforcement of a judgment thereon, a | 19 |
| deduction order, garnishment,
attachment, sequestration, | 20 |
| process or other levy or seizure.
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| (k) (Blank).
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| (k-5) If the court determines that any property held by a | 23 |
| third party respondent is wages pursuant to Section 12-801, the | 24 |
| court shall proceed as if a wage deduction proceeding had been | 25 |
| filed and proceed to enter such necessary and proper orders as | 26 |
| would have been entered in a wage deduction proceeding |
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| including but not limited to the granting of the statutory | 2 |
| exemptions allowed by Section 12-803 and all other remedies | 3 |
| allowed plaintiff and defendant pursuant to Part 8 of Article | 4 |
| 12 of this Act.
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| (l) At any citation hearing at which the judgment debtor | 6 |
| appears and seeks
a declaration that certain of his or her | 7 |
| income or assets are exempt, the court
shall proceed to | 8 |
| determine whether the property which the judgment debtor
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| declares to be exempt is exempt from judgment. At any time | 10 |
| before the return
date specified on the citation, the judgment | 11 |
| debtor may request, in writing, a
hearing to declare exempt | 12 |
| certain income and assets by notifying the clerk of
the court | 13 |
| before that time, using forms as may be provided by the clerk | 14 |
| of the
court. The clerk of the court will obtain a prompt | 15 |
| hearing date from the
court and will provide the necessary | 16 |
| forms that must be prepared by the
judgment debtor or the | 17 |
| attorney for the judgment debtor and sent to the
judgment | 18 |
| creditor, or the judgment creditor's attorney, regarding the | 19 |
| time and
location of the hearing. This notice may be sent by | 20 |
| regular first class mail.
At the hearing, the court shall | 21 |
| immediately, unless for good cause shown that
the hearing is to | 22 |
| be continued, shall proceed to determine whether the property
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| which the judgment debtor declares to be exempt is exempt from | 24 |
| judgment. The
restraining provisions of subsection (f) shall | 25 |
| not apply to any property
determined by the court to be exempt.
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| (m) The judgment or balance due on the judgment becomes a |
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| lien when a
citation is served in accordance with subsection | 2 |
| (a) of this Section. The lien
binds nonexempt personal | 3 |
| property, including money, choses in action, and
effects of the | 4 |
| judgment debtor as follows:
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| (1) When the citation is directed against the judgment | 6 |
| debtor, upon all
personal property belonging to the | 7 |
| judgment debtor in the possession or control
of the | 8 |
| judgment debtor or which may thereafter be acquired or come | 9 |
| due to the
judgment debtor to the time of the disposition | 10 |
| of the citation.
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| (2) When the citation is directed against a third | 12 |
| party, upon all personal
property belonging to the judgment | 13 |
| debtor in the possession or control of the
third party or | 14 |
| which thereafter may be acquired or come due the judgment | 15 |
| debtor
and comes into the possession or control of the | 16 |
| third party to the time of the
disposition of the citation.
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| The lien established under this Section does not affect the | 18 |
| rights of
citation respondents in property prior to the service | 19 |
| of the citation upon them
and does not affect the rights of | 20 |
| bona fide purchasers or lenders without
notice of the citation. | 21 |
| The lien is effective for the period specified by
Supreme Court | 22 |
| Rule.
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| This subsection (m), as added by Public Act 88-48, is a | 24 |
| declaration of
existing law.
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| (n) If any provision of this Act or its application to any | 26 |
| person or
circumstance is held invalid, the invalidity of that |
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| provision or application
does not affect the provisions or | 2 |
| applications of the Act that can be given
effect without the | 3 |
| invalid provision or application.
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| (Source: P.A. 94-293, eff. 1-1-06; 94-306, eff. 1-1-06; revised | 5 |
| 8-19-05.)
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| (735 ILCS 5/5-126.5 new)
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| Sec. 5-126.5. Expenses. The plaintiff shall be allowed to | 8 |
| recover as costs those expenses required by law or a law | 9 |
| enforcement or court officer for the purposes of enforcing a | 10 |
| judgment including levy bonds, replevin bonds, certification | 11 |
| of court orders, recording certified orders or memoranda of | 12 |
| judgment, and expenses for those assisting a sheriff or other | 13 |
| court officer in enforcing court orders including, but not | 14 |
| limited to, orders for possession, replevin orders, and | 15 |
| personal property levies.
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| (735 ILCS 5/12-501) (from Ch. 110, par. 12-501)
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| Sec. 12-501. Registration of Federal judgments. Judgments | 18 |
| of courts of
the United States held,
within this State, and all | 19 |
| process, returns, certificates of the levy of a
process, and | 20 |
| records of such courts may be registered, recorded, docketed,
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| indexed or otherwise dealt with in, the public offices of this | 22 |
| State, so
as to make them conform to the rules and requirements | 23 |
| relating to
judgments of courts of this State. A certified copy | 24 |
| of a federal judgment order entered in this State may be filed |
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| in any circuit court and shall be afforded recognition as if it | 2 |
| were a judgment entered in any other circuit court of this | 3 |
| State.
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| (Source: P.A. 83-707.)
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| (735 ILCS 5/12-803) (from Ch. 110, par. 12-803)
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| Sec. 12-803. Wages
Maximum wages subject to collection. The | 7 |
| maximum wages,
salary, commissions and bonuses subject to | 8 |
| collection under a deduction
order, for any work week shall be
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| not exceed the lesser of (1) 15% of such
gross amount paid for | 10 |
| that week or (2) the amount by which disposable
earnings for a | 11 |
| week exceed 45 times the Federal Minimum Hourly Wage
prescribed | 12 |
| by Section 206(a)(1) of Title 29 of the United States Code, as
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| amended, or, under a wage deduction summons served on or after | 14 |
| January 1, 2006, the minimum hourly wage prescribed by Section | 15 |
| 4 of the Minimum Wage Law, whichever is greater, in effect at | 16 |
| the time the amounts are payable. This provision
(and no other) | 17 |
| applies irrespective of the place where the compensation was
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| earned or payable and the State where the employee resides. No | 19 |
| amounts
required by law to be withheld may be taken from the | 20 |
| amount collected by
the creditor. The term "disposable | 21 |
| earnings" means that part of the
earnings of any individual | 22 |
| remaining after the deduction from those
earnings of any | 23 |
| amounts required by law to be withheld.
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| (Source: P.A. 94-306, eff. 1-1-06.)
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| (735 ILCS 5/12-808) (from Ch. 110, par. 12-808)
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| Sec. 12-808. Duty of employer.
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| (a) An employer served as herein provided shall pay the
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| employee the amount of his or her exempt wages.
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| (b) To the extent of the amount due upon the judgment and | 6 |
| costs, the
employer shall hold, subject to order of court, any | 7 |
| non-exempt wages due or
which subsequently come due. The | 8 |
| judgment or balance due thereon is
a lien on wages due at the | 9 |
| time of the service of summons, and such lien
shall continue as | 10 |
| to subsequent earnings until the total amount due upon
the | 11 |
| judgment and costs is paid, except that such lien on subsequent
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| earnings shall terminate sooner if the employment relationship | 13 |
| is
terminated or if the underlying judgment is vacated or | 14 |
| modified.
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| (b-5) If the employer is a federal agency employer and the | 16 |
| creditor is
represented by an attorney, then the employer, upon | 17 |
| service of summons and to
the extent of the amount due upon the | 18 |
| judgment and costs, shall commence to pay
over to the attorney | 19 |
| for the judgment creditor any non-exempt wages due or that
| 20 |
| subsequently come due. The attorney for the judgment creditor | 21 |
| shall thereafter
hold the deducted wages subject to further | 22 |
| order of the court and shall make
answer to the court regarding | 23 |
| amounts received from the federal agency
employer. The federal | 24 |
| agency employer's periodic payments shall be considered
a | 25 |
| sufficient answer to the interrogatories.
| 26 |
| (c) Except as provided in subsection (b-5),
the employer |
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| 1 |
| shall file, on or before the return date or within the
further | 2 |
| time that the court for cause may allow, a written answer under
| 3 |
| oath to the interrogatories, setting forth the amount due as | 4 |
| wages to
the judgment debtor for the payroll periods ending | 5 |
| immediately prior to the service of the summons and a summary | 6 |
| of the
computation used to determine the amount of non-exempt | 7 |
| wages. Except as
provided in subsection (b-5), the
employer | 8 |
| shall mail by first class mail or hand deliver a copy of the
| 9 |
| answer to the judgment debtor at the address specified in the | 10 |
| affidavit
filed under Section 12-805 of this Act, or at any | 11 |
| other address or location
of the judgment debtor known to the | 12 |
| employer.
| 13 |
| A lien obtained hereunder shall have priority over any | 14 |
| subsequent
lien obtained hereunder, except that liens for the | 15 |
| support of a spouse
or dependent children shall have priority | 16 |
| over all other liens obtained
hereunder. Subsequent summonses | 17 |
| shall be effective in the order in which they are served.
| 18 |
| (d) The Illinois Supreme Court may by rule allow an | 19 |
| employer to file
answers to interrogatories by facsimile | 20 |
| transmission.
| 21 |
| (e) Pursuant to answer under oath to the interrogatories by | 22 |
| the employer,
an order shall be entered compelling the employer | 23 |
| to deduct from wages of the
judgment debtor subject to | 24 |
| collection under a deduction order an amount which is
not to
| 25 |
| exceed the lesser of (i) 15% of the gross amount of the wages | 26 |
| or (ii) the
amount by which disposable earnings for a week |
|
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| 1 |
| exceed 45 times the Federal
Minimum Hourly Wage prescribed by | 2 |
| Section 206(a)(1) of Title 29 of the United
States Code, as | 3 |
| amended, in effect at the time the amounts are payable, for
| 4 |
| each pay period in which statutory exemptions under Section | 5 |
| 12-804 and child
support garnishments, if any, leave funds to | 6 |
| be remitted or, under a wage deduction summons served on or | 7 |
| after January 1, 2006, the minimum hourly wage prescribed by | 8 |
| Section 4 of the Minimum Wage Law, whichever is greater. The | 9 |
| order shall
further provide that deducted wages shall be | 10 |
| remitted to the creditor or
creditor's attorney on a monthly | 11 |
| basis.
| 12 |
| (f) If after the entry of a deduction order, the employer | 13 |
| ceases to remit funds to the plaintiff pursuant to the order | 14 |
| without a lawful excuse (which would terminate the employer's | 15 |
| obligation under the deduction order such as the debtor having | 16 |
| filed a bankruptcy, the debtor having left employment or the | 17 |
| employer having received service of a support order against the | 18 |
| judgment debtor having priority over the wage deduction | 19 |
| proceedings), the court shall, upon plaintiffs motion, enter a | 20 |
| conditional judgment against the employer for the balance due | 21 |
| on the judgment. The plaintiff may then issue a Summons After | 22 |
| Conditional Judgment. After service of the Summons After | 23 |
| Conditional Judgment, the employer may show cause why the | 24 |
| conditional judgment, or some portion thereof should not be | 25 |
| made a final judgment. If the employer shall fail to respond or | 26 |
| show cause why the conditional judgment or some portion thereof |
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| should not be
made final, the court shall confirm the | 2 |
| conditional judgment and make it final as to the employer plus | 3 |
| additional court costs.
| 4 |
| (Source: P.A. 94-306, eff. 1-1-06.)
| 5 |
| (735 ILCS 5/12-808.5)
| 6 |
| Sec. 12-808.5. Certification of judgment balance. Whenever | 7 |
| a wage
deduction order has not been fully satisfied by the end | 8 |
| of the first full
calendar quarter following the date of | 9 |
| service of the wage deduction
summons:
| 10 |
| (1) The judgment creditor or his attorney shall prepare | 11 |
| a certification
that states the amount of the judgment | 12 |
| remaining unsatisfied as of the last
calendar day of each | 13 |
| full calendar quarter for which the wage deduction order
| 14 |
| continues in effect.
| 15 |
| (2) The certification shall be mailed or delivered to | 16 |
| the employer by the
judgment creditor or his or her | 17 |
| attorney within 15 days after the end of each
calendar | 18 |
| quarter for which the wage deduction order continues in | 19 |
| effect. The
employer shall hand deliver or mail by first | 20 |
| class mail a copy of the
certification to the judgment | 21 |
| debtor at the judgment debtor's last known
address. | 22 |
| (3) In the event that the plaintiff fails to provide | 23 |
| the certification required by this Section, the employer | 24 |
| must continue to withhold funds from the defendant's wages | 25 |
| but may hold the funds without remitting to the plaintiff |
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| until such time as it receives a certification required by | 2 |
| this Section. A certification of judgment balance need not | 3 |
| be filed with the court. | 4 |
| (4) Any party to the wage deduction proceeding may, | 5 |
| upon motion with notice to all other parties, ask the court | 6 |
| to review the balance due claimed by the judgment creditor.
| 7 |
| (Source: P.A. 90-677, eff. 1-1-99.)
| 8 |
| (735 ILCS 5/12-814) (from Ch. 110, par. 12-814)
| 9 |
| Sec. 12-814. Costs and fees.
| 10 |
| (a) The costs of obtaining a deduction order shall be | 11 |
| charged to the
judgment debtor, unless the court determines, in | 12 |
| its discretion, that costs
incurred by the judgment creditor | 13 |
| were improperly incurred, in which case
those costs shall be | 14 |
| paid by the judgment creditor.
| 15 |
| (b) No fee shall be paid by an employer for filing his or | 16 |
| her appearance,
answer or satisfaction of judgment against him | 17 |
| or her.
| 18 |
| (c) A fee consisting of the greater of $12 or 2% of the | 19 |
| amount
required to be deducted by any deduction order or series | 20 |
| of deduction
orders arising out of the same judgment debt shall | 21 |
| be allowed and paid
to the employer, and the amount so paid | 22 |
| shall be charged to the judgment
debtor.
| 23 |
| (d) No other fee shall be paid to an employer at the time | 24 |
| of service
of the summons or at any other time thereafter | 25 |
| unless he or she is subpoenaed
to appear as a witness, in which |
|
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| case he or she is entitled to witness fees as
in other civil | 2 |
| cases.
| 3 |
| (Source: P.A. 87-569.)
| 4 |
| (735 ILCS 5/19-117) (from Ch. 110, par. 19-117)
| 5 |
| Sec. 19-117. Service upon defendant. It shall be the duty | 6 |
| of the officer
having an order for
replevin, to serve the same | 7 |
| upon the defendant, whether the property is
found or delivered | 8 |
| to him or her, or not, unless, when none of the property is
| 9 |
| found, the officer is otherwise directed by the plaintiff or | 10 |
| his or her
attorney or agent.
| 11 |
| If the defendant fails to deliver up to the sheriff the | 12 |
| chattel which is the subject of the order for replevin and the | 13 |
| plaintiff has a reasonable belief as to where the chattel is | 14 |
| sequestered, the court may authorize the sheriff to use | 15 |
| reasonable force to enter into the property to recover same | 16 |
| upon such terms and conditions as the court may direct.
| 17 |
| (Source: P.A. 82-280.)
| 18 |
| (735 ILCS 5/19-123) (from Ch. 110, par. 19-123)
| 19 |
| Sec. 19-123. Judgment against plaintiff. If the plaintiff | 20 |
| in an action
of replevin obtains an order for replevin and
| 21 |
| fails to prosecute
the action with effect, or allows a | 22 |
| voluntary or involuntary dismissal,
or if the right of property | 23 |
| is adjudged against the plaintiff, judgment shall be entered
| 24 |
| for a return of the property if such property has been |
|
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| delivered
to the plaintiff, and damages for the use thereof | 2 |
| from the time it was
taken until a return thereof is made, | 3 |
| unless the plaintiff shall,
in the meantime, have become | 4 |
| entitled to the possession of the property,
in which event | 5 |
| judgment may be entered against the plaintiff for costs and
| 6 |
| such damage as the
defendant has sustained; or if the property | 7 |
| was held for the
payment of any money, the judgment may be in | 8 |
| the alternative that the
plaintiff pay the amount for which the | 9 |
| same was rightfully held, with
proper damages, within a given | 10 |
| time, or make return of the property in
case such property was | 11 |
| delivered to the plaintiff.
| 12 |
| (Source: P.A. 82-280.)
| 13 |
| (735 ILCS 5/19-129 new) | 14 |
| Sec. 19-129. Mobile homes. If the chattel which is the | 15 |
| subject of the replevin action is a mobile home and is occupied | 16 |
| by the defendant or other persons, the court may issue a | 17 |
| forcible order directing the sheriff to remove the personal | 18 |
| property of the defendant or occupants from the mobile home | 19 |
| provided that the defendants and unknown occupants are given | 20 |
| notice of plaintiff's intent to seek a forcible order and that | 21 |
| upon entry of said order for possession, the execution is | 22 |
| stayed for a reasonable time as determined by the court so as | 23 |
| to allow the defendants and unknown occupants to remove their | 24 |
| property from the mobile home.
|
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|
INDEX
| 2 |
|
Statutes amended in order of appearance
|
| 3 |
| 735 ILCS 5/2-1402 |
from Ch. 110, par. 2-1402 |
| 4 |
| 735 ILCS 5/5-126.5 new |
|
| 5 |
| 735 ILCS 5/12-501 |
from Ch. 110, par. 12-501 |
| 6 |
| 735 ILCS 5/12-803 |
from Ch. 110, par. 12-803 |
| 7 |
| 735 ILCS 5/12-808 |
from Ch. 110, par. 12-808 |
| 8 |
| 735 ILCS 5/12-808.5 |
|
| 9 |
| 735 ILCS 5/12-814 |
from Ch. 110, par. 12-814 |
| 10 |
| 735 ILCS 5/19-117 |
from Ch. 110, par. 19-117 |
| 11 |
| 735 ILCS 5/19-123 |
from Ch. 110, par. 19-123 |
| 12 |
| 735 ILCS 5/19-129 new |
|
| |
|