Full Text of SB2725 95th General Assembly
SB2725sam001 95TH GENERAL ASSEMBLY
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Sen. Emil Jones Jr.
Filed: 4/2/2008
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LRB095 05934 AJO 48879 a |
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| AMENDMENT TO SENATE BILL 2725
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| AMENDMENT NO. ______. Amend Senate Bill 2725 by replacing | 3 |
| everything after the enacting clause with the following:
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| "Section 5. The Code of Civil Procedure is amended by | 5 |
| changing Sections 2-1402, 12-705, 12-706, 12-707, 12-715, | 6 |
| 12-805, 12-806, 12-807, and 12-808 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 | 10 |
| interest when that
interest is made to appear of record, is | 11 |
| entitled to prosecute supplementary
proceedings for the | 12 |
| purposes of examining the judgment debtor or any other
person | 13 |
| to discover assets or income of the debtor not exempt from the
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| enforcement of the judgment, a deduction order or garnishment, | 15 |
| and of
compelling the application of non-exempt assets or | 16 |
| income discovered toward the
payment of the amount due under |
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| the judgment. A supplementary proceeding shall
be commenced by | 2 |
| the service of a citation issued by the clerk. If third party | 3 |
| respondent is a corporation or company authorized to do | 4 |
| business in Illinois, service of a citation shall be at the | 5 |
| corporation or company's main Illinois administrative office. | 6 |
| The procedure
for conducting supplementary proceedings shall | 7 |
| be prescribed by rules. It is
not a prerequisite to the | 8 |
| commencement of a supplementary proceeding that a
certified | 9 |
| copy of the judgment has been returned wholly or partly | 10 |
| unsatisfied.
All citations issued by the clerk shall have the | 11 |
| following language, or
language substantially similar thereto, | 12 |
| stated prominently on the front, in
capital letters: "YOUR | 13 |
| FAILURE TO APPEAR IN COURT AS HEREIN DIRECTED MAY CAUSE
YOU TO | 14 |
| BE ARRESTED AND BROUGHT BEFORE THE COURT TO ANSWER TO A CHARGE | 15 |
| OF
CONTEMPT OF COURT, WHICH MAY BE PUNISHABLE BY IMPRISONMENT | 16 |
| IN THE COUNTY JAIL."
The court shall not grant a continuance of | 17 |
| the supplementary proceeding except
upon good cause shown.
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| (b) Any citation served upon a judgment debtor or any other | 19 |
| person shall
include a certification by the attorney for the | 20 |
| judgment creditor or the
judgment creditor setting forth the | 21 |
| amount of the judgment, the date of the
judgment, or its | 22 |
| 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 | 24 |
| required by this
subsection. Whenever a citation is served upon | 25 |
| a person or party other than
the judgment debtor, the officer | 26 |
| or person serving the citation shall send to
the judgment |
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| debtor, within three business days of the service upon the | 2 |
| cited
party, a copy of the citation and the citation notice, | 3 |
| which may be sent
by regular first-class mail to the judgment | 4 |
| debtor's last known address. In no
event shall a citation | 5 |
| hearing be held sooner than five business days after the
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| mailing of the citation and citation notice to the judgment | 7 |
| debtor, except by
agreement of the parties. The citation notice | 8 |
| need not be mailed to a
corporation, partnership, or | 9 |
| association. The citation notice shall be in
substantially the | 10 |
| 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 |
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| named above. The
citation directs that person to appear in | 2 |
| court to be examined for the purpose
of allowing the judgment | 3 |
| creditor to discover income and assets belonging to
the | 4 |
| judgment debtor or in which the judgment debtor has an | 5 |
| interest. The
citation was issued on the basis of a judgment | 6 |
| against the judgment debtor in
favor of the judgment creditor | 7 |
| in the amount stated above. On or after the
court date stated | 8 |
| above, the court may compel the application of any
discovered | 9 |
| income or assets toward payment on the judgment.
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| The amount of income or assets that may be applied toward | 11 |
| the judgment is
limited by federal and Illinois law. The | 12 |
| JUDGMENT DEBTOR HAS THE RIGHT TO
ASSERT STATUTORY EXEMPTIONS | 13 |
| AGAINST CERTAIN INCOME OR ASSETS OF THE JUDGMENT
DEBTOR WHICH | 14 |
| MAY NOT BE USED TO SATISFY THE JUDGMENT IN THE AMOUNT STATED
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| ABOVE:
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| (1) Under Illinois or federal law, the exemptions of | 17 |
| personal property
owned by the debtor include the debtor's | 18 |
| equity interest, not to exceed $4,000
in value, in any | 19 |
| personal property as chosen by the debtor; Social Security | 20 |
| and
SSI benefits; public assistance benefits; unemployment | 21 |
| compensation benefits;
worker's compensation benefits; | 22 |
| veteran's benefits; circuit breaker property
tax relief | 23 |
| benefits; the debtor's equity interest, not to exceed | 24 |
| $2,400 in
value, in any one motor vehicle, and the debtor's | 25 |
| equity interest, not to
exceed $1,500 in value, in any | 26 |
| implements, professional books, or tools of the
trade of |
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| the debtor.
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| (2) Under Illinois law, every person is entitled to an | 3 |
| estate in
homestead, when it is owned and occupied as a | 4 |
| residence, to the extent in value
of $15,000, which | 5 |
| homestead is exempt from judgment.
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| (3) Under Illinois law, the amount of wages that may be | 7 |
| applied toward a
judgment is limited to the lesser of (i) | 8 |
| 15% of gross weekly wages or (ii) the
amount by which | 9 |
| disposable earnings for a week exceed the total of 45 times | 10 |
| the
federal minimum hourly wage or, under a wage deduction | 11 |
| summons served on or after January 1, 2006, the Illinois | 12 |
| minimum hourly wage, whichever is greater.
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| (4) Under federal law, the amount of wages that may be | 14 |
| applied toward a
judgment is limited to the lesser of (i) | 15 |
| 25% of disposable earnings for a week
or (ii) the amount by | 16 |
| which disposable earnings for a week exceed 30 times the
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| federal minimum hourly wage.
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| (5) Pension and retirement benefits and refunds may be | 19 |
| claimed as exempt
under Illinois law.
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| The judgment debtor may have other possible exemptions | 21 |
| under the law.
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| THE JUDGMENT DEBTOR HAS THE RIGHT AT THE CITATION HEARING | 23 |
| TO DECLARE EXEMPT
CERTAIN INCOME OR ASSETS OR BOTH. The | 24 |
| judgment debtor also has the right to
seek a declaration at an | 25 |
| earlier date, by notifying the clerk in writing at
(insert | 26 |
| address of clerk). When so notified, the Clerk of the Court |
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| 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 | 3 |
| judgment debtor or the
attorney for the judgment debtor and | 4 |
| sent to the judgment creditor and the
judgment creditor's | 5 |
| attorney regarding the time and location of the hearing.
This | 6 |
| notice may be sent by regular first class mail."
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| (c) When assets or income of the judgment debtor not exempt | 8 |
| from
the satisfaction of a judgment, a deduction order or | 9 |
| garnishment are
discovered, the court may, by appropriate order | 10 |
| or judgment:
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| (1) Compel the judgment debtor to deliver up, to be | 12 |
| applied in
satisfaction of the judgment, in whole or in | 13 |
| part, money, choses in
action, property or effects in his | 14 |
| or her possession or control, so discovered,
capable of | 15 |
| delivery and to which his or her title or right of | 16 |
| possession is not
substantially disputed.
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| (2) Compel the judgment debtor to pay to the judgment | 18 |
| creditor or
apply on the judgment, in installments, a | 19 |
| portion of his or her income, however
or whenever earned or | 20 |
| acquired, as the court may deem proper, having due
regard | 21 |
| for the reasonable requirements of the judgment debtor and | 22 |
| his or her
family, if dependent upon him or her, as well as | 23 |
| any payments required to be
made by prior order of court or | 24 |
| under wage assignments outstanding; provided
that the | 25 |
| judgment debtor shall not be compelled to pay income which | 26 |
| would be
considered exempt as wages under the Wage |
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| Deduction Statute. The court may
modify an order for | 2 |
| 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 | 5 |
| debtor, to
deliver up any assets so discovered, to be | 6 |
| applied in satisfaction of
the judgment, in whole or in | 7 |
| part, when those assets are held under such
circumstances | 8 |
| that in an action by the judgment debtor he or she could | 9 |
| recover
them in specie or obtain a judgment for the | 10 |
| proceeds or value thereof as
for conversion or | 11 |
| embezzlement. A judgment creditor may recover a corporate | 12 |
| judgment debtor's property on behalf of the judgment debtor | 13 |
| for use of the judgment creditor by filing an appropriate | 14 |
| petition within the citation proceedings.
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| (4) Enter any order upon or judgment against the person | 16 |
| cited that
could be entered in any garnishment proceeding.
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| (5) Compel any person cited to execute an assignment of | 18 |
| any chose in
action or a conveyance of title to real or | 19 |
| personal property or resign memberships in exchanges, | 20 |
| clubs, or other entities in the
same manner and to the same | 21 |
| extent as a court could do in any proceeding
by a judgment | 22 |
| creditor to enforce payment of a judgment or in aid of
the | 23 |
| enforcement of a judgment.
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| (6) Authorize the judgment creditor to maintain an | 25 |
| action against
any person or corporation that, it appears | 26 |
| upon proof satisfactory to
the court, is indebted to the |
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| judgment debtor, for the recovery of the
debt, forbid the | 2 |
| transfer or other disposition of the debt until an
action | 3 |
| can be commenced and prosecuted to judgment, direct that | 4 |
| the
papers or proof in the possession or control of the | 5 |
| debtor and necessary
in the prosecution of the action be | 6 |
| delivered to the creditor or
impounded in court, and | 7 |
| provide for the disposition of any moneys in
excess of the | 8 |
| 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 | 11 |
| (c) in favor of
the judgment creditor unless there appears of | 12 |
| record a certification of
mailing showing that a copy of the | 13 |
| citation and a copy of the citation notice
was mailed to the | 14 |
| judgment debtor as required by subsection (b).
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| (e) All property ordered to be delivered up shall, except | 16 |
| as
otherwise provided in this Section, be delivered to the | 17 |
| sheriff to be
collected by the sheriff or sold at public sale | 18 |
| and the proceeds thereof
applied towards the payment of costs | 19 |
| and the satisfaction of the judgment. If the judgment debtor's | 20 |
| property is of such a nature that it is not readily delivered | 21 |
| up to the sheriff for public sale or if another method of sale | 22 |
| is more appropriate to liquidate the property or enhance its | 23 |
| value at sale, the court may order the sale of such property by | 24 |
| the debtor, third party respondent, or by a selling agent other | 25 |
| than the sheriff upon such terms as are just and equitable. The | 26 |
| proceeds of sale, after deducting reasonable and necessary |
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| expenses, are to be turned over to the creditor and applied to | 2 |
| the balance due on the judgment.
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| (f) (1) The citation may prohibit the party to whom it is | 4 |
| directed from
making or allowing any transfer or other | 5 |
| disposition of, or interfering with,
any property not | 6 |
| exempt from the enforcement of a judgment therefrom, a
| 7 |
| deduction order or garnishment, belonging to the judgment | 8 |
| debtor or to which he
or she may be entitled or which may | 9 |
| thereafter be acquired by or become due to
him or her, and | 10 |
| from paying over or otherwise disposing of any moneys not | 11 |
| so
exempt which are due or to become due to the judgment | 12 |
| debtor, until the further
order of the court or the | 13 |
| termination of the proceeding, whichever occurs
first. The | 14 |
| third party may not be obliged to withhold the payment of | 15 |
| any
moneys beyond double the amount of the balance due | 16 |
| sought to be enforced by the
judgment creditor. The court | 17 |
| may punish any party who intentionally violates the | 18 |
| restraining
provision of a citation as and for a contempt, | 19 |
| or if the party is a third party , the court
may enter | 20 |
| judgment against the third party him or her in the amount | 21 |
| of the of non-exempt money or property (other than wages) | 22 |
| owed the judgment debtor in possession or control of the | 23 |
| third party or in which the judgment debtor has an interest | 24 |
| at the time the citation is served and for such further | 25 |
| time the citation is in effect or unpaid portion of
the | 26 |
| judgment and costs allowable under this Section, or in the |
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| amount of the
value of the property transferred, whichever | 2 |
| is lesser.
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| (2) The court may enjoin any person, whether or not a | 4 |
| party to the
supplementary proceeding, from making or | 5 |
| allowing any transfer or other
disposition of, or | 6 |
| interference with, the property of the judgment
debtor not | 7 |
| exempt from the enforcement of a judgment, a deduction | 8 |
| order or
garnishment, or the property or debt not so exempt | 9 |
| concerning which any
person is required to attend and be | 10 |
| examined until further direction in the
premises. The | 11 |
| injunction order shall remain in effect until vacated by | 12 |
| the
court or until the proceeding is terminated, whichever | 13 |
| first occurs.
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| (g) If it appears that any property, chose in action, | 15 |
| credit or
effect discovered, or any interest therein, is | 16 |
| claimed by any person, the court
shall, as in garnishment | 17 |
| proceedings, permit or require the claimant to appear
and | 18 |
| maintain his or her right. The rights of the person cited
and | 19 |
| the rights of any adverse claimant shall be asserted and | 20 |
| determined
pursuant to the law relating to garnishment | 21 |
| proceedings.
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| (h) Costs in proceedings authorized by this Section shall | 23 |
| be
allowed, assessed and paid in accordance with rules, | 24 |
| provided that if the
court determines, in its discretion, that | 25 |
| costs incurred by the judgment
creditor were improperly | 26 |
| 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, | 3 |
| 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 | 5 |
| order
installment or other payments from, or compel the sale, | 6 |
| delivery,
surrender, assignment or conveyance of any property | 7 |
| exempt by statute
from the enforcement of a judgment thereon, a | 8 |
| deduction order, garnishment,
attachment, sequestration, | 9 |
| 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 | 12 |
| third party respondent is wages pursuant to Section 12-801, the | 13 |
| court shall proceed as if a wage deduction proceeding had been | 14 |
| filed and proceed to enter such necessary and proper orders as | 15 |
| would have been entered in a wage deduction proceeding | 16 |
| including but not limited to the granting of the statutory | 17 |
| exemptions allowed by Section 12-803 and all other remedies | 18 |
| allowed plaintiff and defendant pursuant to Part 8 of Article | 19 |
| 12 of this Act.
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| (l) At any citation hearing at which the judgment debtor | 21 |
| appears and seeks
a declaration that certain of his or her | 22 |
| income or assets are exempt, the court
shall proceed to | 23 |
| determine whether the property which the judgment debtor
| 24 |
| declares to be exempt is exempt from judgment. At any time | 25 |
| before the return
date specified on the citation, the judgment | 26 |
| debtor may request, in writing, a
hearing to declare exempt |
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| certain income and assets by notifying the clerk of
the court | 2 |
| before that time, using forms as may be provided by the clerk | 3 |
| of the
court. The clerk of the court will obtain a prompt | 4 |
| hearing date from the
court and will provide the necessary | 5 |
| forms that must be prepared by the
judgment debtor or the | 6 |
| attorney for the judgment debtor and sent to the
judgment | 7 |
| creditor, or the judgment creditor's attorney, regarding the | 8 |
| time and
location of the hearing. This notice may be sent by | 9 |
| regular first class mail.
At the hearing, the court shall | 10 |
| immediately, unless for good cause shown that
the hearing is to | 11 |
| be continued, shall proceed to determine whether the property
| 12 |
| which the judgment debtor declares to be exempt is exempt from | 13 |
| judgment. The
restraining provisions of subsection (f) shall | 14 |
| 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 | 16 |
| lien when a
citation is served in accordance with subsection | 17 |
| (a) of this Section. The lien
binds nonexempt personal | 18 |
| property, including money, choses in action, and
effects of the | 19 |
| judgment debtor as follows:
| 20 |
| (1) When the citation is directed against the judgment | 21 |
| debtor, upon all
personal property belonging to the | 22 |
| judgment debtor in the possession or control
of the | 23 |
| judgment debtor or which may thereafter be acquired or come | 24 |
| due to the
judgment debtor to the time of the disposition | 25 |
| of the citation.
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| (2) When the citation is directed against a third |
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| party, upon all personal
property belonging to the judgment | 2 |
| debtor in the possession or control of the
third party or | 3 |
| which thereafter may be acquired or come due the judgment | 4 |
| debtor
and comes into the possession or control of the | 5 |
| third party to the time of the
disposition of the citation.
| 6 |
| The lien established under this Section does not affect the | 7 |
| rights of
citation respondents in property prior to the service | 8 |
| of the citation upon them
and does not affect the rights of | 9 |
| bona fide purchasers or lenders without
notice of the citation. | 10 |
| The lien is effective for the period specified by
Supreme Court | 11 |
| Rule.
| 12 |
| This subsection (m), as added by Public Act 88-48, is a | 13 |
| declaration of
existing law.
| 14 |
| (n) If any provision of this Act or its application to any | 15 |
| person or
circumstance is held invalid, the invalidity of that | 16 |
| provision or application
does not affect the provisions or | 17 |
| applications of the Act that can be given
effect without the | 18 |
| invalid provision or application.
| 19 |
| (Source: P.A. 94-293, eff. 1-1-06; 94-306, eff. 1-1-06; 95-331, | 20 |
| eff. 8-21-07; 95-661, eff. 1-1-08.)
| 21 |
| (735 ILCS 5/12-705) (from Ch. 110, par. 12-705)
| 22 |
| Sec. 12-705. Summons.
| 23 |
| (a) Summons shall be returnable not less than 21 nor more | 24 |
| than 30 days after
the date of issuance. Summons with 4 copies | 25 |
| of the interrogatories shall be
served and returned as in other |
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| civil cases. If the garnishee is served with
summons less than | 2 |
| 10 days prior to the return date, the court shall continue
the | 3 |
| case to a new return date 14 days after the return date stated | 4 |
| on the
summons. The summons shall be in a form consistent with | 5 |
| local court rules. The
summons shall be accompanied by a copy | 6 |
| of the underlying judgment or a
certification by the clerk of | 7 |
| the court that entered the judgment, or by the
attorney for the | 8 |
| judgment creditor, setting forth the amount of the judgment,
| 9 |
| the name of the court and the number of the case and one copy of | 10 |
| a garnishment
notice in substantially the following form:
| 11 |
| "GARNISHMENT NOTICE
| 12 |
| (Name and address of Court)
| 13 |
| Name of Case: (Name of Judgment Creditor),
| 14 |
| Judgment Creditor v.
| 15 |
| (Name of Judgement Debtor),
| 16 |
| Judgment Debtor.
| 17 |
| Address of Judgment Debtor: (Insert last known address)
| 18 |
| Name and address of Attorney for Judgment
| 19 |
| Creditor or of Judgment Creditor (If no
| 20 |
| attorney is listed): (Insert name and address)
| 21 |
| Amount of Judgment: $(Insert amount)
| 22 |
| Name of Garnishee: (Insert name)
| 23 |
| Return Date: (Insert return date specified in summons)
| 24 |
| NOTICE: The court has issued a garnishment summons against | 25 |
| the garnishee
named above for money or property (other than | 26 |
| wages) belonging to the
judgment debtor or in which the |
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| judgment debtor has an interest at the time the garnishment | 2 |
| writ is served on garnishee . The
garnishment summons was issued | 3 |
| on the basis of a judgment against the
judgment debtor in favor | 4 |
| of the judgment creditor in the amount stated above.
| 5 |
| The amount of money or property (other than wages) that may | 6 |
| be garnished
is limited by federal and Illinois law. The | 7 |
| judgment debtor has the right
to assert statutory exemptions | 8 |
| against certain money or property of the
judgment debtor which | 9 |
| may not be used to satisfy the judgment in the amount
stated | 10 |
| above.
| 11 |
| Under Illinois or federal law, the exemptions of personal | 12 |
| property owned
by the debtor include the debtor's equity | 13 |
| interest, not to exceed $4,000
in
value, in any personal | 14 |
| property as chosen by the debtor; Social Security
and SSI | 15 |
| benefits; public assistance benefits; unemployment | 16 |
| compensation
benefits; workers' compensation benefits; | 17 |
| veterans' benefits; circuit
breaker property tax relief | 18 |
| benefits; the debtor's equity interest, not to
exceed $2,400
in | 19 |
| value, in any one motor vehicle, and the debtor's equity
| 20 |
| interest, not to exceed $1,500
in value, in any implements, | 21 |
| professional
books or tools of the trade of the debtor.
| 22 |
| The judgment debtor may have other possible exemptions from | 23 |
| garnishment
under the law.
| 24 |
| The judgment debtor has the right to request a hearing | 25 |
| before the court
to dispute the garnishment or to declare | 26 |
| exempt from garnishment certain
money or property or both. To |
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| obtain a hearing in counties with a
population of 1,000,000 or | 2 |
| more, the judgment debtor must
notify the Clerk of the Court in | 3 |
| person and in writing at (insert address
of Clerk) before the | 4 |
| return date specified above or appear in court on the
date and | 5 |
| time on that return date. To obtain a hearing in counties with | 6 |
| a
population of less than 1,000,000, the judgment debtor must | 7 |
| notify the
Clerk of the Court in writing at (insert address of | 8 |
| Clerk) on or before the
return date specified above. The Clerk | 9 |
| of the Court will provide a hearing
date and the necessary | 10 |
| forms that must be prepared by the judgment debtor or
the | 11 |
| attorney for the judgment debtor and sent to the judgment | 12 |
| creditor and the
garnishee regarding the time and location of | 13 |
| the hearing. This notice may be
sent by regular first class | 14 |
| mail."
| 15 |
| (b) An officer or other person authorized by law to serve | 16 |
| process shall
serve the summons, interrogatories and the | 17 |
| garnishment notice required by
subsection (a) of this Section | 18 |
| upon the garnishee and shall, (1) within 2
business days of the | 19 |
| service upon the garnishee, mail a copy of the
garnishment | 20 |
| notice and the summons to the judgment debtor by first class
| 21 |
| mail at the judgment debtor's address indicated in the | 22 |
| garnishment notice
and (2) within 4 business days of the | 23 |
| service upon the garnishee file with
the clerk of the court a | 24 |
| certificate of mailing in substantially the following
form:
| 25 |
| "CERTIFICATE OF MAILING
| 26 |
| I hereby certify that, within 2 business days of service |
|
|
|
09500SB2725sam001 |
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LRB095 05934 AJO 48879 a |
|
| 1 |
| upon the
garnishee of the garnishment summons, interrogatories | 2 |
| and garnishment
notice, I served upon the judgment debtor in | 3 |
| this cause a copy of the
garnishment summons and garnishment | 4 |
| notice by first class mail to the
judgment debtor's address as | 5 |
| indicated in the garnishment notice.
| 6 |
| Date:............ .........................
| 7 |
| Signature"
| 8 |
| In the case of service of the summons for garnishment upon | 9 |
| the garnishee
by certified or registered mail, as provided in | 10 |
| subsection (c) of this Section,
no sooner than 2 business days | 11 |
| nor later than 4 business days after the date of
mailing, the | 12 |
| clerk shall mail a copy of the garnishment notice and the | 13 |
| summons
to the judgment debtor by first class mail at the | 14 |
| judgment debtor's address
indicated in the garnishment notice, | 15 |
| shall prepare the Certificate of Mailing
described by this | 16 |
| subsection, and shall include the Certificate of Mailing in a
| 17 |
| permanent record.
| 18 |
| (c) In a county with a population of less than 1,000,000, | 19 |
| unless otherwise
provided by circuit court rule, at the request | 20 |
| of the judgment creditor or his
or her attorney and instead of | 21 |
| personal service, service of a summons for
garnishment may be | 22 |
| made as follows:
| 23 |
| (1) For each garnishee to be served, the judgment | 24 |
| creditor or his or her
attorney shall pay to the clerk of | 25 |
| the court a fee of $2, plus the cost of
mailing, and | 26 |
| furnish to the clerk an original and 2 copies of a summons, |
|
|
|
09500SB2725sam001 |
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LRB095 05934 AJO 48879 a |
|
| 1 |
| an
original and one copy of the interrogatories, an | 2 |
| affidavit setting forth the
garnishee's mailing address, | 3 |
| an original and 2 copies of the garnishment
notice required | 4 |
| by subsection (a) of this Section, and a copy of the | 5 |
| judgment
or certification described in subsection (a) of | 6 |
| this Section. The original
judgment shall be retained by | 7 |
| the clerk.
| 8 |
| (2) The clerk shall mail to the garnishee, at the | 9 |
| address appearing in the
affidavit, the copy of the | 10 |
| judgment or certification described in subsection
(a) of | 11 |
| this Section, the summons, the interrogatories, and the | 12 |
| garnishment
notice required by subsection (a) of this | 13 |
| Section, by certified or registered
mail, return receipt | 14 |
| requested, showing to whom delivered and the date and
| 15 |
| address of delivery. This Mailing shall be mailed on a | 16 |
| "restricted delivery"
basis when service is directed to a | 17 |
| natural person. The envelope and return
receipt shall bear | 18 |
| the return address of the clerk, and the return receipt
| 19 |
| shall be stamped with the docket number of the case. The | 20 |
| receipt for certified
or registered mail shall state the | 21 |
| name and address of the addressee, the date
of the mailing, | 22 |
| shall identify the documents mailed, and shall be attached | 23 |
| to
the original summons.
| 24 |
| (3) The return receipt must be attached to the original | 25 |
| summons and, if it
shows delivery at least 10 days before | 26 |
| the day for the return date, shall
constitute proof of |
|
|
|
09500SB2725sam001 |
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LRB095 05934 AJO 48879 a |
|
| 1 |
| service of any documents identified on the return receipt
| 2 |
| as having been mailed.
| 3 |
| (4) The clerk shall note the fact of service in a | 4 |
| permanent record.
| 5 |
| (Source: P.A. 94-293, eff. 1-1-06.)
| 6 |
| (735 ILCS 5/12-706) (from Ch. 110, par. 12-706)
| 7 |
| Sec. 12-706. Conditional judgment. (a) When any person | 8 |
| summoned as garnishee (if an individual at garnishee's last | 9 |
| known address or if a business at garnishee's main Illinois | 10 |
| administrative office) fails to appear and answer
as required | 11 |
| by Part 7 of Article XII
of this Act, the court may enter a | 12 |
| conditional judgment
against the garnishee for the amount due | 13 |
| upon the judgment against the
judgment debtor. A summons to | 14 |
| confirm the conditional judgment may issue
against the | 15 |
| garnishee, returnable in the same manner as provided in
Section | 16 |
| 12-705 of this Act, commanding the garnishee to show cause why | 17 |
| the
judgment should not be made final. If the garnishee, after | 18 |
| being served
with summons to confirm the conditional judgment | 19 |
| or after being notified
as provided in subsection (b) hereof, | 20 |
| fails to appear and answer, the
court shall confirm such | 21 |
| judgment to the amount of the judgment against
the judgment | 22 |
| debtor and award costs. If the garnishee appears and
answers, | 23 |
| the same proceedings may be had as in other cases.
| 24 |
| (b) If any garnishee becomes a non-resident, goes out of | 25 |
| this State,
or is concealed within this State so that the |
|
|
|
09500SB2725sam001 |
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LRB095 05934 AJO 48879 a |
|
| 1 |
| summons to confirm the
conditional judgment cannot be served | 2 |
| upon him or her, upon the filing by the
plaintiff or his or her | 3 |
| agent of an affidavit as in cases of non-resident
defendants in | 4 |
| attachments, the garnishee may be notified in the same
manner | 5 |
| as a non-resident defendant in attachment; and upon notice | 6 |
| being
given to him or her as above stated, he or she may be | 7 |
| proceeded against in the same
manner as if he or she had been | 8 |
| personally served with summons to confirm the
conditional | 9 |
| judgment.
| 10 |
| (Source: P.A. 83-707.)
| 11 |
| (735 ILCS 5/12-707) (from Ch. 110, par. 12-707)
| 12 |
| Sec. 12-707. Duties of garnishee.
| 13 |
| (a) To the extent of the amount due upon the judgment and | 14 |
| costs, the
garnishee shall hold, subject to the order of the | 15 |
| court any non-exempt
indebtedness or other non-exempt property | 16 |
| in his or her possession, custody
or control belonging to the | 17 |
| judgment debtor or in which the
judgment debtor has any | 18 |
| interest. The judgment or balance due thereon , whichever is | 19 |
| less, becomes
a lien on the indebtedness and other property | 20 |
| held by the
garnishee at the time of the service of garnishment | 21 |
| summons and remains
a lien thereon pending the garnishment | 22 |
| proceeding.
| 23 |
| (b) The garnishee shall file, on or before the return date, | 24 |
| or
within the further time that the court for cause may allow, | 25 |
| a written
answer under oath to the interrogatories, setting |
|
|
|
09500SB2725sam001 |
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LRB095 05934 AJO 48879 a |
|
| 1 |
| forth as of the date
of service of the garnishment summons any | 2 |
| indebtedness due or to
become due to the judgment debtor and | 3 |
| any other property in his, her or its
possession, custody or | 4 |
| control belonging to the judgment debtor or in which
the | 5 |
| judgment debtor has an interest. The garnishee shall mail, by | 6 |
| first class
mail, a copy of the answer to the judgment creditor | 7 |
| or its attorney and to the
judgment debtor at the address | 8 |
| specified in the affidavit filed under Section
12-701 of this | 9 |
| Act, or at any other address or location of the judgment debtor
| 10 |
| known to the garnishee, and shall certify in the answer that it | 11 |
| was so mailed
to the judgment debtor.
| 12 |
| (Source: P.A. 87-1252.)
| 13 |
| (735 ILCS 5/12-715) (from Ch. 110, par. 12-715)
| 14 |
| Sec. 12-715. Neglect Refusal or neglect of garnishee to | 15 |
| deliver property. | 16 |
| (a) If a garnishee is served in accordance with this Part 7 | 17 |
| and refuses or neglects to deliver property in garnishee's his | 18 |
| or her possession
when ordered by the court or upon request by | 19 |
| the officer holding a certified
copy of the judgment for | 20 |
| enforcement thereof
against the judgment debtor, the garnishee | 21 |
| may be attached and
punished for contempt; or the court may | 22 |
| enter judgment against the garnishee
for the value of
the | 23 |
| property owed the judgment debtor at the time the garnishee is | 24 |
| served or the unpaid amount due upon the judgment and costs, | 25 |
| whichever is the
lesser, and have same enforced against the |
|
|
|
09500SB2725sam001 |
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LRB095 05934 AJO 48879 a |
|
| 1 |
| garnishee.
| 2 |
| (Source: P.A. 82-280.)
| 3 |
| (735 ILCS 5/12-805) (from Ch. 110, par. 12-805)
| 4 |
| Sec. 12-805. Summons; Issuance.
| 5 |
| (a) Upon the filing by a judgment creditor, its attorney or | 6 |
| other designee
of (1) an affidavit that the affiant believes | 7 |
| any person is indebted to the
judgment debtor for wages due or | 8 |
| to become due, as provided in Part 8 of
Article XII of this | 9 |
| Act, and includes the last address of the judgment
debtor known | 10 |
| to the affiant as well as the name of the judgment debtor, and
| 11 |
| a certification by the judgment creditor or his attorney that, | 12 |
| before
filing the affidavit, the wage deduction notice has been | 13 |
| mailed to the
judgment debtor by first class mail at the | 14 |
| judgment debtor's last known
address, and (2) written | 15 |
| interrogatories to be answered by the employer
with respect to | 16 |
| the indebtedness, the clerk of the court in which the
judgment | 17 |
| was entered shall issue summons against the person named in the
| 18 |
| affidavit as employer at the employer's main Illinois | 19 |
| administrative office commanding the employer to appear in the | 20 |
| court and
answer the interrogatories in writing under oath. The | 21 |
| interrogatories shall
elicit all the information necessary to | 22 |
| determine the proper amount of
non-exempt wages. The | 23 |
| interrogatories shall require that the employer
certify that a | 24 |
| copy of the completed interrogatories as specified in
| 25 |
| subsection (c) of Section 12-808 has been mailed or hand |
|
|
|
09500SB2725sam001 |
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LRB095 05934 AJO 48879 a |
|
| 1 |
| delivered to the
judgment debtor and shall be in a form | 2 |
| consistent with local court rules.
The summons shall further | 3 |
| command federal agency employers, upon effective
service of | 4 |
| summons pursuant to 5 USC 5520a, to commence to pay over | 5 |
| deducted
wages in accordance with Section 12-808.
The summons | 6 |
| shall be in a form consistent with local court rules. The
| 7 |
| summons shall be accompanied by a copy of the underlying | 8 |
| judgment or a
certification by the clerk of the court that | 9 |
| entered the judgment, or by
the attorney for the judgment | 10 |
| creditor, setting forth the date and amount
of the
judgment,
| 11 |
| allowable costs expended, interest accumulated, credits paid | 12 |
| by or on behalf
of the judgment debtor and the balance due the | 13 |
| judgment creditor, and one copy of
a wage deduction notice in | 14 |
| substantially the following form:
| 15 |
| "WAGE DEDUCTION NOTICE
| 16 |
| (Name and address of Court)
| 17 |
| Name of Case: (Name of Judgment Creditor),
| 18 |
| Judgment Creditor v.
| 19 |
| (Name of Judgment Debtor),
| 20 |
| Judgment Debtor.
| 21 |
| Address of Judgment Debtor: (Insert last known address)
| 22 |
| Name and Address of Attorney for Judgment
| 23 |
| Creditor or of Judgment Creditor (if no
| 24 |
| attorney is listed): (Insert name and address)
| 25 |
| Amount of Judgment: $..........
| 26 |
| Employer: (Name of Employer)
|
|
|
|
09500SB2725sam001 |
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LRB095 05934 AJO 48879 a |
|
| 1 |
| Return Date: (Insert return date specified in summons)
| 2 |
| NOTICE: The court shall be asked to issue a wage deduction | 3 |
| summons against
the employer named above for wages due or about | 4 |
| to become due to you.
The wage deduction summons may be issued | 5 |
| on the basis of a judgment against
you in favor of the judgment | 6 |
| creditor in the amount stated above.
| 7 |
| The amount of wages that may be deducted is limited by | 8 |
| federal and
Illinois law.
| 9 |
| (1) Under Illinois law, the amount of wages that may be | 10 |
| deducted is
limited to the lesser of (i) 15% of gross | 11 |
| weekly wages or (ii) the amount
by which disposable | 12 |
| earnings for a week exceed the total of 45 times the
| 13 |
| federal minimum hourly wage or, under a wage deduction | 14 |
| summons served on or after January 1, 2006, the minimum | 15 |
| hourly wage prescribed by Section 4 of the Minimum Wage | 16 |
| Law, whichever is greater.
| 17 |
| (2) Under federal law, the amount of wages that may be | 18 |
| deducted is
limited to the lesser of (i) 25% of disposable | 19 |
| earnings for a week or (ii)
the amount by which disposable | 20 |
| earnings for a week exceed 30 times the
federal minimum | 21 |
| hourly wage.
| 22 |
| (3) Pension and retirement benefits and refunds may be | 23 |
| claimed as
exempt from wage deduction under Illinois law.
| 24 |
| You have the right to request a hearing before the court
to | 25 |
| dispute the wage deduction because the wages are exempt. To | 26 |
| obtain a
hearing in counties with a population of 1,000,000 or |
|
|
|
09500SB2725sam001 |
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LRB095 05934 AJO 48879 a |
|
| 1 |
| more, you
must notify the Clerk of the Court in person and in | 2 |
| writing at (insert
address of Clerk) before the Return Date | 3 |
| specified above or appear
in court on the date and time on that | 4 |
| Return Date. To obtain a
hearing in counties with a population | 5 |
| of less than 1,000,000, you
must notify the Clerk of the Court | 6 |
| in writing at (insert address of
clerk) on or before the Return | 7 |
| Date specified above.
The Clerk of the Court will provide a | 8 |
| hearing date and the necessary
forms that must be prepared by | 9 |
| you or your attorney and
sent to the judgment creditor and the | 10 |
| employer, or their attorney,
regarding the time and location of | 11 |
| the hearing. This notice may be sent by
regular first class | 12 |
| mail."
| 13 |
| (b) In a county with a population of less than 1,000,000, | 14 |
| unless otherwise
provided by circuit court rule, at the request | 15 |
| of the judgment creditor or his
or her attorney and instead of | 16 |
| personal service, service of a summons for a
wage deduction may | 17 |
| be made as follows:
| 18 |
| (1) For each employer to be served, the judgment | 19 |
| creditor or his or her
attorney shall pay to the clerk of | 20 |
| the court a fee of $2, plus the cost of
mailing, and | 21 |
| furnish to the clerk an original and one copy of a
summons, | 22 |
| an original and one copy of the interrogatories and an | 23 |
| affidavit
setting forth the employer's main Illinois | 24 |
| administrative office mailing address, an original and one | 25 |
| copy of
the wage deduction notice required by subsection | 26 |
| (a) of this Section, and a
copy of the judgment or |
|
|
|
09500SB2725sam001 |
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LRB095 05934 AJO 48879 a |
|
| 1 |
| certification described in subsection (a) of this
Section. | 2 |
| The original judgment shall be
retained by the clerk.
| 3 |
| (2) The clerk shall mail to the employer, at the | 4 |
| address appearing in the
affidavit, the copy of the | 5 |
| judgment
or certification described in subsection (a) of | 6 |
| this Section, the summons,
the interrogatories, and the | 7 |
| wage deduction notice required by subsection (a)
of this | 8 |
| Section, by certified or registered mail, return
receipt | 9 |
| requested, showing to whom delivered and the date and | 10 |
| address of
delivery. This Mailing shall be mailed on a | 11 |
| "restricted delivery"
basis when service is directed to a | 12 |
| natural person. The envelope and return
receipt shall bear | 13 |
| the return address of the clerk, and the return receipt
| 14 |
| shall be stamped with the docket number of the case. The | 15 |
| receipt for certified
or registered mail shall state the | 16 |
| name and address of the
addressee, the date of the mailing, | 17 |
| shall identify the documents mailed, and
shall be attached | 18 |
| to the original summons.
| 19 |
| (3) The return receipt must be attached to the original | 20 |
| summons and, if it
shows delivery at least 3 days before | 21 |
| the return date, shall
constitute proof
of service of any | 22 |
| documents identified on the return receipt as having been
| 23 |
| mailed.
| 24 |
| (4) The clerk shall note the fact of service in a | 25 |
| permanent record.
| 26 |
| (c) Instead of personal service, a summons for a wage |
|
|
|
09500SB2725sam001 |
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LRB095 05934 AJO 48879 a |
|
| 1 |
| deduction may
be served and returned in the manner provided by | 2 |
| Supreme Court rule for
service, otherwise than by publication, | 3 |
| of a notice for additional relief upon
a
party in default.
| 4 |
| (Source: P.A. 94-306, eff. 1-1-06.)
| 5 |
| (735 ILCS 5/12-806) (from Ch. 110, par. 12-806)
| 6 |
| Sec. 12-806. Service and return of summons. Summons shall | 7 |
| be returnable
not less than 21 nor more than 40 days after the | 8 |
| date of
issuance. Summons
with 4 copies of the interrogatories | 9 |
| and one copy of the judgment or
certification and one copy of | 10 |
| the wage deduction notice specified in
Section 12-805 of this | 11 |
| Act shall be served on the employer at employer's main Illinois | 12 |
| administrative office and returned as
in other civil cases.
| 13 |
| If the employer is served served at employer's main | 14 |
| Illinois administrative office with summons less than 3 days | 15 |
| prior to
the
return date, the court shall continue the case to | 16 |
| a new return date not
less than 21 days after the service of | 17 |
| the summons.
| 18 |
| (Source: P.A. 90-677, eff. 1-1-99.)
| 19 |
| (735 ILCS 5/12-807) (from Ch. 110, par. 12-807)
| 20 |
| Sec. 12-807. Failure of employer to appear. (a) If an | 21 |
| employer fails
to appear and answer as required by Part 8 of | 22 |
| Article XII of this Act, the
court may enter a conditional | 23 |
| judgment against the
employer for the amount of the non-exempt | 24 |
| wages owed the judgment debtor until the employer appears and |
|
|
|
09500SB2725sam001 |
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LRB095 05934 AJO 48879 a |
|
| 1 |
| answers due upon the judgment against the judgment
debtor . A | 2 |
| summons to confirm the conditional judgment may issue against
| 3 |
| the employer returnable not less than 21 nor more than 30 days | 4 |
| after the
date of issuance, commanding the employer to show | 5 |
| cause why the judgment
should not be made final. If the | 6 |
| employer, after being served with
summons to confirm the | 7 |
| conditional judgment or after being notified as
provided in | 8 |
| subsection (b) hereof, fails to appear and answer, the court
| 9 |
| shall confirm such judgment to the amount of the judgment | 10 |
| against the
judgment debtor and award costs. If the employer | 11 |
| appears and
answers, the same proceedings may be had as in | 12 |
| other cases.
| 13 |
| (b) If an employer becomes a non-resident, goes out of this | 14 |
| State,
or is concealed within this State so that the summons to | 15 |
| confirm the
conditional judgment cannot be served upon him or | 16 |
| her, upon the filing by the
plaintiff or his or her agent of an | 17 |
| affidavit as in cases of non-resident
defendants in | 18 |
| attachments, the employer may be notified in the same
manner as | 19 |
| a non-resident defendant in attachment; and upon notice being
| 20 |
| given to him or her as above stated, he or she may be proceeded | 21 |
| against in
the same manner as if he or she had been personally | 22 |
| served with summons to
confirm the conditional judgment.
| 23 |
| (Source: P.A. 86-603.)
| 24 |
| (735 ILCS 5/12-808) (from Ch. 110, par. 12-808)
| 25 |
| Sec. 12-808. Duty of employer.
|
|
|
|
09500SB2725sam001 |
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LRB095 05934 AJO 48879 a |
|
| 1 |
| (a) An employer served as herein provided shall pay the
| 2 |
| employee the amount of his or her exempt wages.
| 3 |
| (b) To the extent of the amount due upon the judgment and | 4 |
| costs, the
employer shall hold, subject to order of court, any | 5 |
| non-exempt wages due or
which subsequently come due. The | 6 |
| judgment or balance due thereon is
a lien on wages due at the | 7 |
| time of the service of summons, and such lien
shall continue as | 8 |
| to subsequent earnings until the total amount due upon
the | 9 |
| judgment and costs is paid, except that such lien on subsequent
| 10 |
| earnings shall terminate sooner if the employment relationship | 11 |
| is
terminated or if the underlying judgment is vacated or | 12 |
| modified.
| 13 |
| (b-5) If the employer is a federal agency employer and the | 14 |
| creditor is
represented by an attorney, then the employer, upon | 15 |
| service of summons and to
the extent of the amount due upon the | 16 |
| judgment and costs, shall commence to pay
over to the attorney | 17 |
| for the judgment creditor any non-exempt wages due or that
| 18 |
| subsequently come due. The attorney for the judgment creditor | 19 |
| shall thereafter
hold the deducted wages subject to further | 20 |
| order of the court and shall make
answer to the court regarding | 21 |
| amounts received from the federal agency
employer. The federal | 22 |
| agency employer's periodic payments shall be considered
a | 23 |
| sufficient answer to the interrogatories.
| 24 |
| (c) Except as provided in subsection (b-5),
the employer | 25 |
| shall file, on or before the return date or within the
further | 26 |
| time that the court for cause may allow, a written answer under
|
|
|
|
09500SB2725sam001 |
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LRB095 05934 AJO 48879 a |
|
| 1 |
| oath to the interrogatories, setting forth the amount due as | 2 |
| wages to
the judgment debtor for the payroll periods ending | 3 |
| immediately prior to the service of the summons and a summary | 4 |
| of the
computation used to determine the amount of non-exempt | 5 |
| wages. Except as
provided in subsection (b-5), the
employer | 6 |
| shall mail by first class mail or hand deliver a copy of the
| 7 |
| answer to the judgment debtor at the address specified in the | 8 |
| affidavit
filed under Section 12-805 of this Act, or at any | 9 |
| other address or location
of the judgment debtor known to the | 10 |
| employer.
| 11 |
| A lien obtained hereunder shall have priority over any | 12 |
| subsequent
lien obtained hereunder, except that liens for the | 13 |
| support of a spouse
or dependent children shall have priority | 14 |
| over all other liens obtained
hereunder. Subsequent summonses | 15 |
| shall be effective in the order in which they are served.
| 16 |
| (d) The Illinois Supreme Court may by rule allow an | 17 |
| employer to file
answers to interrogatories by facsimile | 18 |
| transmission.
| 19 |
| (e) Pursuant to answer under oath to the interrogatories by | 20 |
| the employer,
an order shall be entered compelling the employer | 21 |
| to deduct from wages of the
judgment debtor subject to | 22 |
| collection under a deduction order an amount which is the | 23 |
| lesser of (i) 15% of the gross amount of the wages or (ii) the
| 24 |
| amount by which disposable earnings for a week exceed 45 times | 25 |
| the Federal
Minimum Hourly Wage prescribed by Section 206(a)(1) | 26 |
| of Title 29 of the United
States Code, as amended, in effect at |
|
|
|
09500SB2725sam001 |
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LRB095 05934 AJO 48879 a |
|
| 1 |
| the time the amounts are payable, for
each pay period in which | 2 |
| statutory exemptions under Section 12-804 and child
support | 3 |
| garnishments, if any, leave funds to be remitted or, under a | 4 |
| wage deduction summons served on or after January 1, 2006, the | 5 |
| minimum hourly wage prescribed by Section 4 of the Minimum Wage | 6 |
| Law, whichever is greater. The order shall
further provide that | 7 |
| deducted wages shall be remitted to the creditor or
creditor's | 8 |
| attorney on a monthly basis.
| 9 |
| (f) If after the entry of a deduction order, the employer | 10 |
| ceases to remit funds to the plaintiff pursuant to the order | 11 |
| without a lawful excuse (which would terminate the employer's | 12 |
| obligation under the deduction order such as the debtor having | 13 |
| filed a bankruptcy, the debtor having left employment or the | 14 |
| employer having received service of a support order against the | 15 |
| judgment debtor having priority over the wage deduction | 16 |
| proceedings), the court shall, upon plaintiff's motion, enter a | 17 |
| conditional judgment against the employer for the the | 18 |
| non-exempt wages owed the judgment debtor until the employer | 19 |
| appears and answers balance due on the judgment . The plaintiff | 20 |
| may then issue a Summons After Conditional Judgment. After | 21 |
| service of the Summons After Conditional Judgment at the | 22 |
| employer's main Illinois administrative office address , the | 23 |
| employer may show cause why the conditional judgment, or some | 24 |
| portion thereof should not be made a final judgment. If the | 25 |
| employer shall fail to respond or show cause why the | 26 |
| conditional judgment or some portion thereof should not be
made |
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| final, the court shall confirm the conditional judgment and | 2 |
| make it final as to the employer plus additional court costs.
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| (Source: P.A. 94-306, eff. 1-1-06; 95-661, eff. 1-1-08.)
| 4 |
| Section 10. The Trusts and Trustees Act is amended by | 5 |
| adding Section 5.4 as follows: | 6 |
| (760 ILCS 5/5.4 new) | 7 |
| Sec. 5.4. Spendthrift trusts. | 8 |
| (a) For trusts created on or after the effective date of | 9 |
| this amendatory Act of the 95th General Assembly, a settlor who | 10 |
| in writing irrevocably transfers property in any manner to a | 11 |
| trust having at least one trustee as defined in subsection (b) | 12 |
| of this Section may, subject to the limitations in subsection | 13 |
| (c) of this Section, provide that the income or principal | 14 |
| interest of the settlor as beneficiary may not be either | 15 |
| voluntarily or involuntarily transferred before payment or | 16 |
| delivery to the settlor as beneficiary by the trustee. This | 17 |
| Section shall be considered to be a restriction on the transfer | 18 |
| of the settlor's beneficial interest in the trust that is | 19 |
| enforceable under applicable nonbankruptcy law within the | 20 |
| meaning of Section 541(c)(2) of the Bankruptcy Code or any | 21 |
| successor provision. | 22 |
| (b) (1) If the settlor is a beneficiary of the trust, at | 23 |
| least one trustee of a trust described in this Section must be | 24 |
| a corporate fiduciary authorized by the laws of this State to |
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| act as a trustee and whose activities are subject to | 2 |
| supervision by the Director of the Division of Banking of this | 3 |
| State, the Office of the Comptroller of the Currency, or the | 4 |
| Office of Thrift Supervision, or any successor thereto; and | 5 |
| (2) maintains or arranges for custody in this State of | 6 |
| some or all of the property that is the subject of the | 7 |
| trust described in this Section, maintains records for the | 8 |
| trust on an exclusive or nonexclusive basis, prepares or | 9 |
| arranges for the preparation of fiduciary income tax | 10 |
| returns for the trust, or otherwise materially | 11 |
| participates in the administration of the trust. | 12 |
| (c) (1) Except as provided in this subsection, if a trust | 13 |
| has a restriction as provided in subsection (a) of this | 14 |
| Section, a creditor or other claimant of the settlor may not | 15 |
| satisfy a claim, or liability on a claim, in either law or | 16 |
| equity, out of the settlor's transfer or the settlor's | 17 |
| beneficial interest in the trust. For purposes of this Section, | 18 |
| a creditor includes one holding or seeking to enforce a | 19 |
| judgment entered by a court or other body having adjudicative | 20 |
| authority as well as one with a right to payment, whether or | 21 |
| not reduced to judgment, liquidated, unliquidated, fixed, | 22 |
| contingent, matured, unmatured, disputed, undisputed, legal, | 23 |
| equitable, secured, or unsecured. | 24 |
| (2) A trust described in this Section does not prevent | 25 |
| a creditor or person described in this subsection (c) from | 26 |
| satisfying a claim or liability out of the settlor's |
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| beneficial interest in or transfer into trust if: | 2 |
| (i) the claim is a judgment, order, decree, or | 3 |
| other legally enforceable decision or ruling resulting | 4 |
| from a judicial, arbitration, mediation, or | 5 |
| administrative proceeding commenced prior to or within | 6 |
| 3 years after the trust is created; | 7 |
| (ii) the settlor's transfer into trust is made with | 8 |
| actual intent to hinder, delay, or defraud that | 9 |
| creditor or claimant; | 10 |
| (iii) the trust provides that the settlor may | 11 |
| revoke or terminate all or part of the trust; | 12 |
| (iv) the claim is for a payment owed by the settlor | 13 |
| under a child support judgment or order; | 14 |
| (v) the claim is by a spouse or former spouse of | 15 |
| the settlor on account of an agreement or court order | 16 |
| for the payment of support or maintenance or for a | 17 |
| division or distribution of property; | 18 |
| (vi) the claim is a tax or other amount owed by the | 19 |
| settlor to any governmental entity; | 20 |
| (vii) the claim is by a governmental entity for | 21 |
| recovery of public assistance received by the settlor | 22 |
| from the governmental entity; | 23 |
| (viii) the transfer is made when the settlor is | 24 |
| insolvent or the transfer renders the settlor | 25 |
| insolvent; | 26 |
| (ix) the claim is a judgment, award, order, |
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| sentence, fine, penalty, or other determination of | 2 |
| liability of the settlor for conduct of the settlor | 3 |
| constituting fraud, intentional infliction of harm, or | 4 |
| a crime; or | 5 |
| (x) the settlor transferred assets into the trust | 6 |
| that: (1) were listed in a written representation of | 7 |
| the settlor's assets given to a claimant to induce the | 8 |
| claimant to enter into a transaction or agreement with | 9 |
| the settlor; or (2) were transferred from the settlor's | 10 |
| control in breach of any written agreement, covenant, | 11 |
| or security interest between the settlor and the | 12 |
| claimant. | 13 |
| (d) The statute of limitations for actions to satisfy a | 14 |
| claim or liability out of the settlor's beneficial interest in | 15 |
| or transfer into trust under this Section is the statute of | 16 |
| limitations applicable to the underlying action. | 17 |
| (e) The satisfaction of a claim under this Section is | 18 |
| limited to that part of the trust or transfer to which it | 19 |
| applies. | 20 |
| (f) For purposes of this Section, a trust is not revoked or | 21 |
| terminated by: | 22 |
| (i) a power to veto a distribution from the trust; | 23 |
| (ii) a testamentary special power of appointment or | 24 |
| similar power; | 25 |
| (iii) the right to receive a distribution of income, | 26 |
| principal, or both in the discretion of another, including |
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| a trustee other than the settlor; | 2 |
| (iv) an interest in a charitable remainder unitrust or | 3 |
| charitable remainder annuity trust as defined in Internal | 4 |
| Revenue Code Section 664 or any successor provision; | 5 |
| (v) a right to receive principal subject to an | 6 |
| ascertainable standard set forth in the trust; or | 7 |
| (vi) the power to appoint a nonsubordinate adviser or | 8 |
| trust protector who can remove and appoint trustees, who | 9 |
| can direct, consent to, or disapprove distributions, or who | 10 |
| is an investment advisor or has the power to appoint an | 11 |
| investment adviser or investment director pursuant to the | 12 |
| laws of this State. | 13 |
| (g) The courts of this State shall have exclusive | 14 |
| jurisdiction over any action brought under this Section. ".
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