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.

 

 

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PaulP

Litigation attorney at Fisher Kanaris, P.C. representing businesses and individuals in all types of commercial disputes.

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