You spent hours upon hours of trial preparation pouring over every document and deposition transcript. You crafted the perfect opening and closing statements and delivered them with conviction. Your client testified exactly as you wanted. Your cross-examination of your opponent’s star witness was brilliant. You were supremely confident that the judge would rule in your client’s favor.
You were shocked when the judge ruled in favor of the Plaintiff and against your client; a wealthy businessman who maybe, just maybe was paying more attention to his cell phone conversation than the task of driving his new Mercedes down the busy streets of Chicago on that fateful day. Who would have expected a pedestrian crossing the street anyhow?
You vowed to appeal. You lost the appeal. Now What? Will your client lose his multi-million dollar home? His Mercedes? His membership at the local country club?
These questions can all be answered by reviewing Illinois law on post judgment proceedings. Three areas should be looked at when examining post judgment law. First, an overview of the post judgment process is appropriate. Second, the various laws that make up the Illinois exemption statutes which could prevent a judgment creditor from executing a judgment should be reviewed. Finally, the Illinois garnishment statute should be examined.
In Illinois, the post judgment process is initiated by the issuance of a citation to discover assets. Section 2-1402 of the Code of Civil Procedure provides the framework, and the required form of the citation to discover assets. The citation will contain a return date, which is the date upon which the debtor is to appear in court. The Code of Civil Procedure provides that the creditor must give the debtor at least five days notice of the citation hearing.
Generally, the debtor will appear in court on the day of the citation return date, be sworn in by the court and will be examined by the creditor’s attorney, in an informal deposition format, to determine whether the debtor has assets to satisfy the judgment. If it is determined that the debtor has no assets to satisfy the judgment, the citation will be terminated and the debtor is free to go. If it is determined that the debtor does have assets to satisfy the judgment, several options are available to the creditor. The court, by appropriate order, may compel the debtor to deliver up property, either directly to the judgment creditor, or to the sheriff to be sold at an auction.
In Illinois, the issuance of a citation essentially operates as an injunction and preserves the status quo. First, the debtor should be aware that, by operation of Section 2-1402(m), a lien is automatically created on any property that is nonexempt. If your client decides to file for bankruptcy protection, the lien may survive the bankruptcy proceeding. Second, Section 2-1402(f)(1) provides that the citation may prohibit the party to whom it is directed from transferring or disposing of nonexempt property. If your client does sell or dispose of property, then under Supreme Court Rule 277(h), your client may be subject to sanctions for failure to obey the citation.
Supreme Court Rule 277 places limits on the length of citation hearings. The Rule provides that the citation terminates automatically six months after (1) the party to whom the citation is directed appears in response to the citation or (2) the party’s "first personal appearance pursuant to subsequent process issued to enforce the citation," whichever is sooner. The second part likely refers to the situation where the party to whom the citation is issued fails to appear at the initial citation hearing and a Rule to Show Cause is issued compelling the respondent to appear or be held in contempt of court and arrested. However, the rule provides that the citation may be continued for longer than the six month period, when justice requires.
Third parties other than the judgment debtor may be subject to a non-wage garnishment, similar to a citation to discover assets. Non-wage garnishments are addressed in Sections 5/12-701, et seq., of the Code of Civil Procedure. The common scenario is where a judgment creditor issues a third party citation to discover assets or non-wage garnishment summons to a debtor’s bank to determine the amount that is in the Debtor’s bank account. As with a citation to discover asset summons, the issuance of the non-wage garnishment becomes a lien on the debtor’s non-exempt property subject to the garnishment.
The Illinois Exemptions
Once the citation is served on your client, you need to sit down with the client and discuss the property they have and whether it may be exempt under Illinois law. The good news: your client is allowed to keep a certain amount of property. The bad news: it’s not very much. The Illinois exemption statute is contained in 735 ILCS 5/12-1001. For example, the debtor is entitled to keep the following:
(1) $2400 worth of equity in a motor vehicle. This means that the Mercedes your client just paid off is likely to be fair game for the judgment creditor;
(2) The Debtor is allowed to keep "necessary wearing apparel, a bible, school books and family pictures";
(3) $1500 worth of implements, professional books, or tools of the trade. This exemption usually comes into play when your client is involved in the construction industry or is some type of mechanic and has various valuable hand tools;
(4) The debtor is allowed a general exemption of $4000, which he can apply to any property he owns;
(5) The cash value of any life insurance policy that the debtor may own, provided that the beneficiary of the policy is a wife, husband, or other person dependent upon the insured;
(6) Social security benefits, unemployment compensation, disability benefits;
(7) Alimony, support or maintenance, but only to the extent reasonably necessary for the support of the debtor and any dependent of the debtor;
(8) Only $15,000 payable to the debtor resulting from a bodily injury.
(9) Section 735 ILCS 5/12-1006 allows the Debtor to exempt his interest in a qualified retirement plan. A qualified retirement plan is generally described as a retirement plan that qualifies as a retirement plan under the Internal Revenue Code. Common examples are 401(k)’s, pensions, and IRA’s.
(10) Section 5/12-901 allows the Debtor to keep $15,000 worth of equity in their property, which is called a "homestead exemption." This exemption is limited to property that is occupied by the Debtor. The Debtor cannot exempt an investment property.
After you review the exemptions with your client, he may want to take that $10,000 that he has in savings and put it in a retirement account. However, they should beware that if a Debtor purchases exempt property with the intention of converting non-exempt property into exempt property, then the property purchased will not be exempt from attachment or garnishment. So, if your client has converted non-exempt property into exempt property, then it will still be subject to turnover to the creditor.
Section 12-1002 comes into play when the Debtor’s personal assets may be worth more than the $4,000 allowed exemption. If this is the case, then the Debtor is required to file an affidavit with the court listing all of their personal assets. An appraiser is then appointed and will conduct an appraisal of all of the personal property listed. Once the appraisal is completed, the debtor can select the specific property that he or she wants to keep, subject to the $4,000 cap.
Another commonly used method that a creditor has to satisfy its judgment is garnishment of a Debtor’s wages. Garnishment is addressed in 735 ILCS 5/12-801, et seq. A wage garnishment proceeding is initiated by sending a wage deduction notice to the judgment debtor at his last known address. At that point, the creditor must file an affidavit with the court stating that they believe the debtor is indebted to the judgment creditor for wages due, and also certify that the appropriate wage deduction notice has been sent to the judgment debtor. The creditor must also send written interrogatories to the judgment debtor’s employer. Section 12-805 sets forth a specific format that is required of the garnishment notice to be sent to the judgment debtor.
Once the employer is in receipt of the wage deduction notice, it is required (1) to pay the employee the amount of their exempt wages and (2) hold any amount of nonexempt wages to turnover to the creditor. Just as in a citation to discover assets, when a wage deduction notice is sent, a lien is created on all nonexempt wages due, as well as all future nonexempt wages due until the creditor is paid off, or the debtor’s employment is terminated. Additionally, the statute provides that the lien created by the wage garnishment is superior to that of any subsequent lien obtained thereafter. This is similar to the UCC "first in time" rule. The creditor that gets the judgment first has priority in garnishing the debtor’s wages. The exception to this priority rule is a lien for the support of a spouse or dependent child.
Illinois law places a limit on the amount of wages that are exempt from garnishment. In Illinois, the creditor may only garnish up to 15% of the debtor’s gross income each week. Also, Section 12-804 exempts from deduction orders any "benefits and refunds payable by pension or retirement funds or systems …and any monies an employee is required to contribute to such funds or systems." Thus, if the employee is required to contribute to a retirement fund or pension plan by his employer, the required contribution is exempt. Also, any amount the debtor receives as a pension or retirement benefit is exempt.
If a judgment is obtained against your client, you should carefully examine the Illinois statutes on post-judgment proceedings. If your client has lots of assets and has high exposure, it may be worth attempting to offer a lump sum settlement to the creditor, over even considering the possibility of bankruptcy. Beware of the various pitfalls that come up once the citation or wage garnishment is issued and you may still be able to obtain a favorable outcome for your client, even though he has lost the case.
Joshua D. Greene is an associate attorney with the law firm of Springer, Brown, Covey, Gaertner & Davis, LLC in Wheaton, Illinois. He focuses his practice in bankruptcy litigation, representation of individuals and business in bankruptcy, and representation of bankruptcy trustees. He also regularly practices in Illinois state courts, representing clients in post-judgment proceedings. He earned his undergraduate degree at Middle Tennessee State University and his Juris Doctor from DePaul University College of Law.