Collecting Your Cook County (IL) Judgment: A Primer

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735 ILCS 5/2-1402 and Supreme Court Rule 277 govern post-judgment or supplementary proceedings in Illinois. 735 ILCS 5/12-101 through 12-183 provide additional post-judgment specifics like the mechanics of levying on a debtor’s property, the seven-year period to enforce a judgment (12-108), the lien on debtor’s real estate and personal property, enforcement in other counties, etc.

The Citation to Discover Assets

The first step is to issue a Citation to Discover Assets and Citation Notice.  The Citation and Notice of Citation are pre-printed fillable forms found on the Cook County website.

On the form, I list the name of the creditor (my client), the debtor (the person we got a judgment against), the date and amount of judgment and address of debtor.  I attach a copy of the underlying judgment and include a Rider to the Citation asking for documents relating to the debtor’s assets.

In the Rider, I usually ask for State and Federal tax returns for the past 2-3 years, a years’ worth of bank statements, six most recent paystubs, title papers to cars and real estate, and a signed statement of personal and real assets.  I may also request documents pertaining to any stocks, bonds, securities, furnishings or electronic equipment.  The larger the judgment, the more painstaking I am in my Citation Rider requests.

Section 2-1402(b-1) now requires a creditor to include an Income and Asset Form with the Citation. The debtor is supposed to fill out and bring it to the Citation hearing.  A sample Income and Asset Form is included in the statutory text.

To “issue” the Citation, I take it to the 6th floor (Muni cases) or 8th floor (Law Division) pay $80 (usually) and get it certified by the Clerk.  I am then given the “return date” which is the day it is set for hearing.

The Citation hearing will be in Room 1401 of the Daley Center (if judgment is less than $30K) or Room 2503 if the judgment is over $30K (or for judgments entered in Law Division cases).  Chancery money judgment citations are scheduled before the Chancery judge.

Serving the Citation

Once the Citation is issued, I either place it with the Sheriff or a Special Process Server (SPS).  A citation can be served in the first instance by a process server (unlike a complaint and summons – which must first be placed with the county sheriff).  I’ve found that an SPS is usually more persistent and able to track down evasive debtors with better success than the county sheriff. For this reason, I almost always serve a Citation through an SPS.

But with a corporate debtor that usually has a registered agent, I will usually serve through the sheriff (since there is less chance of dodging service).

The Citation Examination

The examination often takes place in the glamorous Daley Center hallway!  Sometimes, the judge will allow you to do the exam in a jury room.  I’ve also agreed to conduct examinations at my office or opposing counsel’s office.  However, to avoid the stonewalling debtor situation, I usually prefer to do the examination at the courthouse so I can ask the judge to intervene if necessary.

On the Citation return date, if the debtor shows up, he is sworn in by the Clerk and I conduct the examination.  I ask myself: “If this person owed me money, and I really wanted it, what would I ask this person?”  Simple as that.

I first ask if the debtor brought the requested Rider documents – such as their  tax returns, bank records, motor vehicle title, pay stubs, etc.  More often than not, the debtor brings  nothing and I have to continue the hearing for another date.  Even if the debtor shows up empty-handed, I still conduct the examination but in the continuance order, I specify which documents the debtor must produce within 7 or 14 days.  I then continue the citation hearing for 3-4 weeks.  I also reserve the right to re-examine the debtor if the documents he produces raises additional questions.

If the debtor or his/her counsel is uncooperative, threatening  or verbally abusive during the citation exam (I’ve experienced all three), I stop the exam and simply say “I’m going to have the case called”.  Usually, that results in some cooperation.  If not, and the debtor persists in not cooperating (giving “I don’t know” answers to every question) I let the judge scold the debtor for being obstructionist. In my experience, collection judges have little tolerance for a debtor that is not taking the citation proceeding seriously.

At the examination, three key questions I focus on before I look through the debtors’ documents are: (1) is he/she employed?; (2) Does he/she have bank accounts?; and (3) does the debtor own real estate?

(1) Employment: If the debtor answers yes to Item 1 (debtor has job) – I issue a wage deduction against the debtor’s employer.  You can have 15% of debtors’ gross, pre-tax wages under Illinois law under the Wage Deduction statute: 735 ILCS 5/12-801 et seq.

(2) Bank Account: If debtor has a bank account, I find out where and immediately issue and send a third-party citation to the bank’s Keeper of Records and serve it by certified mail.

Once the debtor’s bank receives the third-party citation, the bank must freeze the debtor’s account until further order of court.  I usually wait 2-3 days to send the debtor notice of the third-party citation.  Otherwise, if the debtor catches wind of the third-party citation, he/she can race to the bank, empty his/her accounts and you will get nothing (and NOT like it).

(2)(a) The Third-Party Citation

I have found a third-party citation to be a very  powerful enforcement tool.  People don’t like it when they can’t withdraw money from their account (individual) or make payroll (corporate debtor).

But, more often than not, the debtor’s bank account has little or no money in it.

Illinois law also has a $4,000 catch-all exemption: a debtor can declare up to $4,000 in his account as exempt (this is good information for someone representing a judgment debtor).

Example: debtor’s bank answers the third-party citation that the debtor has $4,050 in his/her checking account.  The debtor could declare $4,000 exempt and you (the creditor) would only get a paltry $50.  The burden is clearly on the debtor to claim this exemption.

The third-party citation will have a separate “return date”.  I try to schedule both the underlying “first party” citation (the one against the debtor) and third-party citation (against the debtor’s bank, e.g.) on the same day.

If the bank (or other third party respondent) files an answer stating that the debtor does have funds on deposit, I request a Turnover Order.  This is a court order which requires the bank/third-party to remit funds to the creditor’s counsel.

Once the turnover order issues, I send it to the bank/third-party with a letter saying “enclosed please find a copy of today’s order requiring you to turn over the sum of $____ within 7 days.  Please remit to the undersigned and make your check payable to_____”.  If the bank fails to pay (a rarity), I move to vacate the dismissal of the third-party citation and request that a conditional judgment enter against the bank. This almost always gets the bank’s attention since it doesn’t want to deal with a money judgment against it.

(3) Real Estate

If the debtor owns real estate, I record a Memorandum of Judgment against the property.

The Memorandum of Judgment must be signed by the judge that entered the underlying judgment (not the 1401 judge).  So, if a Muni judge entered it (on the 11th floor), you must have that judge sign the Memorandum.  If you forget at the time of judgment, simply file a motion requesting the judge to sign the Memorandum.

I attach a legal description to the Memorandum of Judgment along with the real estate PIN number.  Then, I record the Memorandum in the Recorder of Deeds.  For a Chicago-land debtor, I record in the Cook County Recorder of Deeds.  This puts a cloud on the debtor’s title.  The lien will interfere with the debtor’s attempts to refinance or sell his property.

If there is equity in the real estate, I can file suit to foreclose the lien and force a sale of debtor’s property.  But, before I do this, I run a title search – or at least check Cook County Assessor’s and Recorder of Deeds site to determine any prior recorded liens on the property.

A prior mortgage or other lien will trump my judgment lien and can make foreclosing the lien ( forcing a sale of the property) cost-prohibitive.

If the debtor answers that he has non-exempt personal property (e.g. car, jewelry, furniture, etc)., I explore whether the client wants to levy on the property.  Usually, it involves placing documents with the Sheriff and posting a bond.  This is where 735 ILCS 5/12-101-183 comes into play.  Levying on personalty can be time-consuming and expensive.

Other exemptions a debtor can assert in citation/supplementary proceedings are found at Section 2-1402(b)(1) and include unemployment benefits, Social Security benefits, worker’s comp benefits, $2,400 in car, $15,000 in home, $4,000 catch-all exemption among others.

Conclusion

There are many more details and nuances to collecting on a judgment.  But the above steps are a good starting point for a collection attorney trying to enforce a judgment for his client.  I can tell you this: when you are able to recover monies in citation proceedings through dogged efforts, clients are very appreciative which is very gratifying.

Piercing the Corporate Veil in Illinois

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In Illinois, a corporation is a legal entity that exists separate and apart from its shareholders, officers and directors.  In fact, a major purpose of incorporating is to insulate yourself from personal liability.  This liability-reducing function of corporations does have its limits though.  If someone is abusing the corporate form, a court can disregard the corporation and “pierce the corporate veil.”

For instance, if I incorporate Paul, Ltd. and you enter a contract with Paul, Ltd. to sell widgets and Paul, Ltd. breaches, generally, you will not be able to sue me personally for Paul, Ltd.’s debts.  Because, the law views me as a separate “person” from Paul, Ltd.  However, if Paul, Ltd. is simply my alter-ego, or a pass-through entity – then the court can pierce Paul, Ltd.’s veil of limited liability and hold me responsible for Paul, Ltd.’s debts!

Illinois courts apply a two-prong test to determine whether to pierce the  corporate veil: (1) unity of interest and ownership is such that separate personalities of the corporation and the other person no longer exist; and (2) adherence to the fiction of separate corporate existence would sanction fraud or promote injustice.  Fontana v. TLD Builders, 362 Ill.App.3d 491 (2005).

Within this two-part framework, courts analyze the following factors: (1) inadequate capitalization (opening a corporate bank account with minimal $); (2) failure to issue stock; (3) nonpayment of dividends; (4) nonfunctioning officers or directors; (5) absence of corporate records (Articles of Incorporation?  What’s that?!!); (6) insolvency of debtor corporation; (8) commingling of funds; (9) diversion of corporate assets to a dominant shareholder, among others.

Afterword: It’s difficult to demonstrate grounds for piercing.  A creditor seeking to pierce has a very heavy burden.  For this reason, when dealing with a corporation with whom you don’t have a prior relationship or that doesn’t have a track record, doing pre-contract due diligence (running credit reports, checking trade references, etc.) is critical.

In addition, getting a personal guaranty from a corporate officer is helpful. This assures that a real live person actually has some skin in the game.  Otherwise, you run the risk of getting an uncollectable judgment.

Like Pulling Teeth: The Struggles of Collecting Judgments from Corporate Debtors

 

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As someone who does some collection work, I experience first-hand how difficult it is to collect on judgments – especially from small corporate debtors.  A 2011 Second District case illustrates in stark relief just how challenging and frustrating enforcing a judgment can be.

In Conserv v. Von Bergen Trucking, 2011 IL App (2d) 101225U (2011), the Court followed Pyshos v. Heart-Land Development Co., 258 Ill.App.3d 618 (1994) and held that a judgment creditor cannot try to pierce the corporate veil of a corporate defendant in citation proceedings.  In doing so, the court narrowly construed post-judgment proceedings (or supplementary proceedings) and clarified that a piercing claim (one where the creditor tries to hold the corporate officer personally liable for the corporate debt) is beyond the scope of a citation/supplementary proceeding.

If ever there was a case for piercing, this was it.  Even when the trial court denied the creditor’s motion to pierce the corporate veil, the court noted that the defendant was “definitely getting away with something.  But the law allows him to get away with something.”  Cold comfort for the creditor indeed.

In Conserv, once the money judgment was entered, the corporate debtor immediately emptied its bank accounts and began operating under a different (though similar) name.  The “new” corporation was grossly undercapitalized, commingled personal and corporate funds and failed to follow any corporate formalities (keeping minutes, filing annual reports, paying required fees, etc).

The reincarnated corporation was a blatant sham or alter-ego of the principal officer.  Still, the court denied the creditor’s piercing motion stating that a citation proceeding’s only relevant inquiries are (1) whether the judgment debtor possesses assets that can be applied toward the judgment; or (2) whether a third party is holding assets of the judgment debtor.  Period.

So – what should a creditor do when it learns that a corporate debtor is an alter-ego of an individual?  The answer:  (1) issue a third-party citation  against the shareholders or against another corporation the creditor believes ha s assets of the debtor corporation; or (2) file a new breach of contract claim against the corporation.

Under option (2) above, you argue that the officer is responsible for the corporation’s debts because that corporation is a hollow front for the officer’s business dealings.