Paul Porvaznik

Fisher Kanaris, P.C.

Disclaimer

The content of this blog is intended for informational purposes only. It is not intended to solicit business or to provide legal advice. Laws differ by jurisdiction, and the information on this blog may not apply to every reader. You should not take, or refrain from taking, any legal action based upon the information contained on this blog without first seeking professional counsel.

Family Trust Set Up in Good Faith Shields Family Member from Creditor – IL Case Note

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In Hickory Point Bank & Trust v. Natual Concepts, Inc., 2017 IL App (3d) 160260, the appeals court affirmed a trial court’s denial of a judgment creditor’s motion to impose a judicial lien and order the turnover of trust assets.

The corporate defendant defaulted on the loan that was guaranteed by corporate principals.

Plaintiff entered confessed judgments against the corporate and individual defendants.

Through post-judgment proceedings, plaintiff learned one of the individual defendants was trustee of an irrevocable family trust whose sole asset was four pieces of real estate formerly owned by the defendant’s father.

The document provided that upon death of defendants’ parents, the trust assets would be distributed 85% to defendant with the rest (15%) going to defendant’s three sons.

To satisfy its default judgment against defendant, plaintiff alternately moved to liquidate and turnover the trust assets and to impress a judicial lien against the trust property.

The trial court held that the trust was protected from judgment creditors under Code section 2-1403 (735 ILCS 5/2-1403) and denied the plaintiff’s motion. Plaintiff appealed.

The central issue was whether or not the trust was self-settled.  A “self-settled” trust is “a trust in which the settlor is also the person who is to receive the benefits from the trust, usually set up in an attempt to protect the trust assets from creditors.” Black’s Law Dictionary 1518 (7th ed. 2002).

Like most states, Illinois follows the general rule that a self-settled trust created for the settlor’s own benefit will not protect trust assets from the settlor’s creditors. See Rush University Medical Center v. Sessions, 2012 IL 112906, ¶ 20.

Code Section 2-1403 codifies the rule that protects trusts that are not self-settled.  This statute states:

“No court, except as otherwise provided in this Section, shall order the satisfaction of a judgment out of any property held in trust for the judgment debtor if such trust has, in good faith, been created by, or the fund so held in trust has proceeded from, a person other than the judgment debtor.” 735 ILCS 5/2–1403 (West 2014).

Based on the plain statutory text, a creditor’s judgment cannot be satisfied by funds held in trust for a judgment debtor where (1) the trust was created in good faith and (2) a person other than the judgment debtor created the trust or the funds held in trust proceeded from someone other than the judgment debtor.

Here, there was evidence that the trust was formed in good faith.  It pre-dated by five years the date of the commercial loan and defendants’ default.  There was no evidence the trust was created to dodge creditors like the plaintiff.  The trust language stated it was designed for the care of Defendant’s elderly parents during their lifetimes.

The Court also deemed significant that Defendant was not the trust beneficiary. Again, the trust was set up to benefit Defendants’ parents and the trust was funded with the parents’ assets.  Because the trust assets originated from someone other than the defendant, the second prong of Section 2-1403 was satisfied.

Plaintiff’s alternative argument that the court should impress a judicial lien against defendant’s 85% trust interest also failed.  The law is clear that a creditor may not impose a lien on funds that are in the hands of a trustee.  But once those trust funds are distributed to a beneficiary, a creditor can access them. (¶¶ 26-27)

Since thse trust assets (the four real estate parcels) had not been distributed to defendants under the terms of the trust, defendant’s interest in the properties could not be liened by the plaintiff.

Afterwords:

A good example of a family trust shielding trust assets from the reach of a family member’s creditor.

Self-settled trusts (trusts where the settlor and beneficiary are the same person) are not exempt from creditor interference.  However, where the trust is created in good faith and funded with assets originating from someone other than a debtor, a creditor of that debtor will not be able to attach the trust assets until they “leave” the trust and are distributed to the debtor.

 

When The Person You Have A Judgment Against Has His Property Tied Up In A Trust: What Then?

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images (photo credit: www.dreamstime.com; Google images (visited 11.26.14)

In earlier posts, I’ve discussed how time-consuming and frustrating it can be to collect on a money judgment.  The primary creditor enforcement methods include freezing the debtor’s bank accounts, garnishing his wages, and liening his real estate by recording the judgment in the county where his land is located.  Recording a lien against a debtor’s real estate is an especially strong tactic.  Once a creditor records the judgment, he can sue to foreclose the property and force its sale.  But where a debtor has no assets or source of income, the judgment is worthless. 

Adding yet another layer of difficulty to the collection process is where a debtor’s property is sheltered in a trust.  The most common scenario I encounter this in my practice is with real estate held in a land trust.  Typically, the property will be owned by a trustee (usually a bank) and lived in by the debtor who most likely is the trust beneficiary. 

In Illinois, a debtor’s beneficial interest in a land trust is regarded as personal property: he (the debtor) doesn’t possess a direct ownership interest in the trust real estate.  The practical effect: you can’t lien the real estate by recording the judgment since the trust – not the debtor – owns the land.  The debtor’s beneficial interest in a land trust is considered intangible personal (not real) property.  

Illinois’ post-judgment statutory scheme expressly allows a creditor to impress a lien on a debtor’s intangible property via the citation to discover assets.  Once a citation is served on the debtor, the judgment becomes a lien on all of a debtor’s nonexempt personal property (including a beneficial interest in a land trust) on the date the citation is served. 

The citation results in the judgment binding the debtor’s personal property (everything that’s not land basically: cars, jewelry, stereo equipment, stocks, bonds, etc.) in his possession or which later comes into his possession before the citation expires.  735 ILCS 5/2-1402(m)(1). 

Code Section 2-1403 (735 ILCS 5/2-1403) provides that no court can order the satisfaction of any judgment out of property held in trust if (a) the trust was created in good faith; and (b) created by someone other than the debtor.  So, if the trust was created by a third party, the trust property is protected from creditors.  However, once any trust property is distributed “out of” the trust, the creditor can attach and lien the disbursement.

Creditor’s counsel should be leery of property held in trust for the debtor’s benefit and be cognizant of other standard exemptions (property that creditor’s can’t touch) like pension funds, retirement accounts, unemployment benefits, etc. 

Assuming there is no fraud or other suspicious circumstances surrounding the trust’s creation, the trust property will be shielded from creditors.  However, once the trust income is disbursed to the debtor, it’s fair game.  The creditor should then promptly move for a turnover order or ask the court to impress a judicial lien on the trust funds being distributed to the debtor.