Technically Non-Final Default Judgment Still Final Enough to Support Post-Judgment Enforcement Action – IL Fed Court (From the Vault)

Dexia Credit Local v. Rogan, 629 F.3d 612 (7th Cir. 2011) reminds me of a recent case I handled in a sales commission dispute.  A Cook County Law Division Commercial Calendar arbitrator ruled for our client and against a corporate defendant and found for the individual defendant (an officer of the corporate defendant) against our client on a separate claim.  On the judgment on award (JOA) date, the corporate defendant moved to extend the seven-day rejection period.  The judge denied the motion and entered judgment on the arbitration award.

Inadvertently, the order recited only the plaintiff’s money award against the corporate defendant: it was silent on the “not liable” finding for the individual defendant.  To pre-empt the corporate defendant’s attempt to argue the judgment wasn’t a final order (and not enforceable), we moved to correct the order retroactively or, nunc pro tunc, to the JOA date so that it recited both the plaintiff’s award against the corporation and the corporate officer’s award versus the plaintiff.  This “backdated” clarification to the judgment order permitted us to immediately issue a Citation to Discover Assets to the corporate defendant without risking a motion to quash the Citation.

While our case didn’t involve Dexia’s big bucks or complicated facts, one commonality between our case and Dexia was the importance of clarifying whether an ostensibly final order is enforceable through post-judgment proceedings.

After getting a $124M default judgment against the debtor, the Dexia plaintiff filed a flurry of citations against the judgment debtor and three trusts the debtor created for his adult children’s’ benefit.

The trial court ordered the trustee to turnover almost all of the trust assets (save for some gifted monies) and the debtor’s children appealed.

Affirming, the Seventh Circuit first discussed the importance of final vs. non-final orders.

The defendants argued that the default judgment wasn’t final since it was silent as to one of the judgment debtor’s co-defendants – a company that filed bankruptcy during the lawsuit.  The defendants asserted that since the judgment didn’t dispose of plaintiff’s claims against all defendants, the judgment wasn’t final and the creditor’s post-judgment citations were premature.

In Illinois, supplementary proceedings like Citations to Discover Assets are unavailable until after a creditor first obtains a judgment “capable of enforcement.”  735 ILCS 5/2-1402.  The debtor’s children argued that the default judgment that was the basis for the citations wasn’t enforceable since it did not resolve all pending claims.   As a result, according to debtor’s children, the citations were void from the start.

The Court rejected this argument as vaunting form over substance.  The only action taken by the court after the default judgment was dismissing nondiverse, dispensable parties – which it had discretion to do under Federal Rule 21.  Under the case law, a court’s dismissal of dispensable, non-diverse parties retroactively makes a pre-dismissal order final and enforceable.

Requiring the plaintiff to reissue post-judgment citations after the dismissal of the bankrupt co-defendant would waste court and party resources and serve no useful purpose.  Once the court dismissed the non-diverse defendants, it “finalized” the earlier default judgment.


A final order is normally required for post-judgment enforcement proceedings.  However, where an order is technically not final since there are pending claims against dispensable parties, the order can retroactively become final (and therefore enforceable) after the court dismisses those parties and claims.

The case serves as a good example of a court looking at an order’s substance instead of its technical aspects to determine whether it is sufficiently final to underlie supplementary proceedings.

The case also makes clear that a creditor’s request for a third party to turn over assets to the creditor is not an action at law that would give the third party the right to a jury trial.  Instead, the turnover order is coercive or equitable in nature and there is no right to a jury trial in actions that seek equitable relief.


LLC Members Not Liable On Void Judgment Entered Against LLC

Downs v. Rosenthal, 2013 IL App (1st) 121406, features an in-depth analysis of the difference between corporate vs. individual liability, the nature of post-judgment proceedings, and appellate procedure.


Plaintiff sued defendant LLC and its individual members (the Members) for breach of fiduciary duty, breach of contract and a declaratory judgment that plaintiff was a 2.5% stakeholder in the LLC.  The trial court entered a money judgment against the LLC and Members jointly and severally.  The LLC defendant appealed the judgment but the Members did not.

The First District reversed and vacated the judgment, finding that plaintiff wasn’t an owner of the LLC and so wasn’t entitled to a share of the LLC’s profits.  But since the Members didn’t appeal the judgment, plaintiff instituted supplementary proceedings against them.  The trial court quashed the citations because the appeals court reversed the plaintiff’s judgment. Plaintiff appealed.

Held: trial court affirmed.  The voided judgment against the LLC is not enforceable against the Members.


The LLC appealed – but the Members didn’t – the trial court’s ruling that plaintiff was entitled to 2.5% of the LLC’s profits over several years.  Usually, a nonappealing defendant can’t benefit from the efforts of an appealing defendant.   ¶ 20.

But the defendant that doesn’t appeal can benefit from a co-defendant’s successful appeal where there is an “interdependence of rights” among them that would make it unfair to allow a judgment to stand against the no appealing defendants. ¶¶ 20, 24.

The plaintiff’s right to the LLC profits was entirely dependent on his ownership interest in the LLC.  Since the appeals court found that plaintiff was not an owner of the LLC, plaintiff wasn’t entitled to any LLC profits.

In Illinois, an LLC is a separate entity from its constituent members and an LLC member or manager is not personally liable for a judgment against the LLC. 805 ILCS 180/10-10(a).  Once the judgment against the LLC was overturned, there was nothing to bind the Members: the Court found it was unfair to allow the plaintiff to enforce the vacated judgment against the Members.   ¶24.

The First District also rejected plaintiff’s res judicata (“a thing already judged”)argument – that the judgment which the Members didn’t appeal was final and so the Members were barred from challenging plaintiff’s attempt to collect on the judgment.

Res judicata, or claim preclusion, attempts to foster closure and finality in litigation.  The doctrine applies where there are successive causes of action and it bars a second action between parties after a previous final judgment on the merits.  It requires (1) a final judgment on the merits; (2) identity of causes of actions; and (3) identical parties in both actions. ¶ 25.

Here, the Court found that plaintiff’s enforcement proceedings were “supplementary” to the underlying judgment and were not, by definition, a second cause of action.  There was only a single action – plaintiff’s lawsuit.  As a result, the Court found that the Members could properly attack the plaintiff’s post-judgment efforts once the appeals court vacated the judgment against the LLC.  ¶ 26.

Take-aways: A defendant that doesn’t appeal a judgment can still benefit from a co-defendant’s successful appeal where there is an interdependence of rights between the two defendants.

However, Downs shows that it’s a perilous practice for one defendant not to appeal a money judgment when his co-defendant does appeal.  In Downs, while the LLC members ended up winning, they ran the risk of having to answer for a judgment that was entered against another party (LLC) and ultimately overturned.

Downs also illustrates that a judgment creditor’s collection proceedings aren’t viewed as separate claims for res judicata purposes.





Illinois ‘Reverse Piercing’ Law: Can You or Can’t You?

image“Reverse piercing” involves the creditor of an individual shareholder attempting to reach assets of a corporation operated by that shareholder.  Illinois reverse-piercing law is unsettled.  Some cases allow  the remedy; others don’t.  When it is allowed, it usually involves a one-person corporation.

In Fish v. Hennessy, 2013 WL 577012 (N.D.Ill 2013), the Northern District rejected a creditor’s attempt to reverse-pierce in supplementary proceedings. The plaintiff obtained a nearly $1 million judgment against the defendant in Ohio Federal court and registered the judgment in the Illinois Northern District.  The plaintiff then filed a motion to reverse-pierce the corporate veil in order to reach the assets of two companies controlled by the debtor.  The debtor argued that the Court lacked jurisdiction to reverse-pierce the debtor.

Result: The Court dismissed the plaintiff’s reverse-piercing motion for lack of jurisdiction.  Plaintiff is given leave to file separate reverse-piercing action.


Illinois law (735 ILCS 5/2-1402, SCR 277) governs supplementary proceedings in Northern District cases.  FRCP 69(a).  Because Illinois supplementary proceedings are limited to finding assets of a debtor – either in his possession or in the hands of a third party -creditor piercing efforts are usually beyond the scope of supplementary proceedings.  Because of this, Illinois law requires the creditor to sue separately to pierce the corporate veil; naming the shareholder as a defendant in the underlying claims that would normally lie against a corporation.

The Court held that while some Illinois courts permit reverse-piercing, the creditor must file a  stand-alone action against the shareholder. Fish, *2.  Here, since the creditor tried to reverse-pierce in post-judgment proceedings, the motion was improper and the Court dismissed it for lack of jurisdiction.  Id.

The plaintiff creditor argued that after its 2008 amendment, Code Section 2-1402(c)(3) allows a creditor can bring a (straight) piercing motion in supplementary proceedings against a corporate debtor.  However, since defendant was an individual, not a corporate debtor, this section didn’t apply.  In addition, the Court found no Illinois case reading amended Section 2-1402(c)(3) to allow reverse-piercing in post-judgment proceedings.  Id., *2.

Take-aways: A creditor of an individual can’t reverse-pierce (to attach corporate assets of companies run by the debtor) in judgment enforcement proceedings.  Instead, the creditor must file a separate lawsuit against the corporate entity controlled by the shareholder.  Fish‘s discussion of Code Section 2-1402(c)(3) suggests that a judgment creditor may now be able to bring a piercing-type claim against a corporate debtor in supplementary proceedings.  While this is welcome news to creditors’ counsel (since they won’t have to file entire new piercing suits), it still runs counter to “good” Illinois caselaw (see Pyshos (above), Conserv v. Von Bergen Trucking, 2011 IL App (2d) 101225U (2011)), that clearly disallow piercing claims in supplementary proceedings.  Even so, the Fish Court didn’t have to categorically rule on this issue since the defendant was an individual and not a corporate debtor.  As a result, amended Section 2-1402(c)(3) didn’t apply to the case’s facts.