Tag: post-judgment

R. Kelly’s Royalty Account Nabbed by Sex Assault Judgment Creditor

Midwest Commercial Funding, LLC v. Kelly, 2022 IL App (1st) 210644 shows the harsh results that can flow from the failure to follow a statute’s service requirements to the letter.

There, dueling creditors fought over song royalties paid to disgraced R&B singer R. Kelly. Heather Williams sued the singer for sexual abuse and obtained a $4M default judgment against him in March 2020. About four months later, Midwest Commercial Funding, LLC (“MCF”), a commercial landlord, was awarded a $3.5M judgment for unpaid rent under a commercial lease against the singer.

Both creditors issued supplementary proceedings to enforce their respective judgments.

The Chronology

On August 17, 2020, Williams mailed a citation to discover assets to Sony – the music company that held a royalty account for the singer. Two days later, MCF sent its own citation by both regular mail and e-mail. MCF e-mailed the citation to one of Sony’s in-house lawyers with whom MCF had prior dealings.

On August 24, 2020, Sony’s in-house lawyer acknowledged receipt of MCF’s citation. (The record is unclear whether Sony’s counsel meant the August 19, 2020 e-mailed or regularly mailed citation.) August 24, 2020 is also the date that Williams mailed citation was delivered to Sony.

When MCF and Williams learned they had served simultaneous citations, they each filed adverse claims in their respective cases: Williams’s personal injury case and MCF’s lease breach action.

Trial Court Ruling

The trial court found that based on Supreme Court Rule 12(c), MCF’s electronic service was complete on day of transmission (August 19, 2020) while William’s “snail-mail” service was complete August 21, 2020 – four days after mailing. Because of this, the supplementary proceedings court found that MCF’s citation lien took precedence over Williams’s and ordered Sony to pay MCF (to the exclusion of Williams) until the judgment was satisfied.

The First District’s Reversal

Williams’s key argument on appeal was that she had a superior lien to Kelly’s royalty account as plaintiff’s e-mail citation did not perfect service under the law.

Reversing the trial court, the First District noted that once a citation is served on a judgment debtor, a judgment lien is perfected on all assets of the debtor that are not otherwise exempt under the law. The Court then wrote that when a citation is served on a third party, the judgment liens all assets of the debtor in the third party’s possession or control. A perfected lien is superior to any later-attaching lien. [Para 7]

The Court rejected MCF’s argument that Williams lacked standing to challenge service of MCF’s citation on Sony. It found Williams was not trying to vicariously assert Sony’s right to proper notice of the citations. Instead, Williams was asserting her prior interest in Kelly’s royalty account because Plaintiff’s e-mailed citation did not perfect service of its citation under Illinois law. The Court added that a contrary ruling would deprive any creditor of a chance to assert a paramount lien upon assets in a third-party respondent’s possession and allow a citation respondent to arbitrarily decide priority among competing creditors. [¶ 14]

The Court then analyzed Supreme Court Rule 11’s text to determine if e-mail service can perfect a citation lien. Under a plain reading of the Rule – titled “Manner of Serving Documents Other Than Process and Complaint on Parties Not in Default in the Trial and Reviewing Courts” – the Court found it contemplates e-mail service of documents only after a party has appeared. As a result, Rule 11 does not provide for e-mail service of documents on a party who has not appeared in the case before the court. Here, Sony had not appeared in either underlying case. [¶ 19]

Looking to Black’s Law Dictionary for guidance, the Court defined the “process” referenced in Rule 11’s title as an initiating case document, like a summons or writ, which triggers a party’s duty to respond.

The Court likened a third-party citation to discover assets to a summons. It held that “absent service of the citation, such party has no duty to appear, nor could the court subject such party to the sanctions provided in Section 2-1402 for noncompliance.”

Since the failure to respond to a third-party citation subjects a respondent to the threat of contempt and sanctions, the Court found that supplementary proceedings against a third party like Sony must be accompanied by service of process and statutory special notices. [¶ 20] As a result, MCF’s e-mailed citation was not proper service under Illinois law and did not lien the royalty account. Since Williams mailed her citation to Sony two days before MCF mailed its citation, Williams’s lien on the account trumped MCF’s.

Conclusion

This case illustrates in sharp relief how a judgment creditor plays with proverbial fire by not personally serving a citation (or at least serving it by certified mail – return receipt requested)

Since a citation to discover assets is the opening, operative document that first activates a recipient’s duty to respond, the citation is tantamount to a summons or writ and beyond the scope of Rule 11’s e-mail service provisions.

 

 

‘Half a Mil’ Conditional Judgment Too Harsh for Anemic Citation Response – IL First Dist.

Hayward v. Scorte, 2020 IL App (1st) 190476, reads like a creditors’ rights practice manual for its detailed discussion of the nature and scope of various creditor remedies under the Illinois supplementary proceedings and garnishment statutes.  (735 ILCS 5/2-1402 and 735 ILCS 5/12-701 et seq., respectively.)

The plaintiffs confirmed a half-million dollar arbitration award against a corporate defendant in a construction dispute and sought to collect. In post-judgment discovery, the post-judgment court (the Law Division’s Tax and Misc. Remedies Div.) found that the corporate debtor’s two owners failed to properly respond to citations served upon them by plaintiffs’ counsel.

The trial court entered a conditional judgment (later converted to a final one) against each corporate officer for the full amount of the underlying judgment.  The officers appealed.

Reversing, the First District first noted that supplementary proceedings in Illinois allow a judgment creditor to pursue any assets in the judgment debtor’s possession or that are being held by third parties and apply those assets to satisfy the judgment. See 735 ILCS 5/2-1402.

In the garnishment context, 735 ILCS 5/12-701 et seq., where a third party fails to respond to a garnishment summons, the creditor garnisher can request a conditional judgment against the garnishee. 735 ILCS 5/12-706.

Once the conditional judgment is entered, the creditor issues a summons to the respondent.  If the respondent still fails to answer the garnishment summons, the conditional judgment is confirmed or finalized. Once the garnishee responds to the conditional judgment summons, it isn’t bound by the earlier default and can litigate afresh. [21]

Section 12-706’s twin goals is to provide an incentive for respondents to answer a properly served garnishment summons and to protect a respondent from Draconian consequences of a single oversight. 735 ILCS 5/12-706. [21]

Code Section 2-1402 permits a court to enter any order or judgment that could be entered in a garnishment proceeding. 735 ILCS 5/2-1402(k-3).

But while Section 2-1402(k-3) incorporates the garnishment act’s full range of remedies, the section does not give a creditor broader rights than exist under garnishment law.  [23]

Conditional judgments are only allowed where a garnishee fails to appear and answer.  Here, the third-party respondents (the two corporate officers) did appear and answer the citation; the trial judge just deemed the answer incomplete.

The Court then noted that garnishment act Section 12-711(a) speaks to the precise situation here: it allows a judgment creditor to challenge the sufficiency of a garnishee’s answer and request a trial on those issues.  735 ILCS 5/12-711(a).

The garnishment statute is silent on the consequences of incomplete or insufficient answers.  Since the corporate officers did answer the underlying citations, the Court held that the trial court lacked statutory authority to enter a full money judgment against the individual defendants under Code Section 2-1402(k-3). [26]

Next, the Court examined the interplay between Section 2-1402(c)(3) and (c)(6).  The former section speaks to situations where a third party has embezzled or converted a judgment debtor’s assets.  The latter permits a  judgment creditor to sue a third party (i.e. to bring a separate cause of action) where that third party is indebted to a judgment debtor.

The Court pointed out that neither section allowed a court to assess the entire underlying judgment against a third party without a specific finding that party converted or embezzled a debtor’s assets. [27]

In fact, the lone statutory basis for a court to enter a full judgment against a third-party is where it violates the citation’s restraining provision – Section 2-1402(f)(1).

This section allows a court to punish a third party that transfers, disposes of or interferes with a judgment debtor’s non-exempt property – after a citation is served – by entering a money judgment for the lesser of (a) the unpaid amount of a judgment or (b) the value of the asset transferred. [27, 28]

The Court then stressed that a citation lien applies only to property transfers occurring after a citation is served.  Pre-citation transfers, by contrast, cannot form the basis of a money judgment against a third party.  Since the plaintiffs’ conditional judgment motion was predicated in part on property transfers occurring some two years before the citations were issued, they fell beyond the scope of sanctions considered by the trial court.

An additional ground for the First District’s reversal lay in the absence of proof that the corporate officers held any corporate assets.  Illinois law is clear that before a court can enter a judgment against a third party, there must be some record evidence that the third party possesses assets belonging to the debtor.

Since there was no statutory bases to assess the full money judgment against the two erstwhile corporate principals and since there was no evidence either principal had any corporate debtor assets in their possession, the trial court overstepped by entering a money judgment against the individual corporate officer defendants.

Take-aways:

A third party must be in possession of a debtor’s assets before a money judgment can issue against that third party;

While the garnishment act allows for a conditional judgment where a respondent fails to appear and answer a garnishment summons, and Illinois’s supplementary proceedings statute incorporates garnishment remedies, the garnishment act does not permit a conditional judgment against a garnishee who does in fact answer a garnishment summons;

A judgment creditor should file a separate veil-piercing suit against a defunct corporation’s principals if the creditor believes they are holding erstwhile corporate assets.

Don’t Confuse Joint Tenancy with Tenancy-By-Entirety Ownership – Indiana Court Cautions

Title to real estate is typically held in one of three ways: tenancy in common, joint tenancy and tenancy by the entirety.

The salient characteristic of tenancy in common is that each owner holds a ½ interest in the property and that upon an owner’s death, his/her share passes to his/her heir.

Joint tenancy’s hallmark is its survivorship feature: when a joint tenant dies, his/her share passes to the surviving joint tenant. The deceased’s interest will not pass to an heir.

With tenancy by entirety (“TBE”) ownership, sometimes described as “joint tenancy with marriage,” the property is immune from one spouse’s creditor’s judgment lien. This means the creditor of one spouse cannot foreclose on the TBE property. However, to qualify for TBE protection, the parties must be married and live in the property as a primary residence. If the property owners are married but do not use the home as the marital homestead, TBE won’t shield the property from creditor collection efforts.

In Flatrock River Lodge v. Stout, 130 N.E.2d 96 (Ind. Ct. App. 2019), an Indiana appeals court delved into the joint tenancy vs. TBE dichotomy and how the difference between the two realty title vehicles dramatically impacts a judgment lien’s enforceability.  The trial court denied the creditor’s motion to foreclose a judgment lien because the subject real estate was held in joint tenancy. On appeal, the Court considered whether a judgment creditor could foreclose on joint tenancy property, force its sale, and apply the proceeds against the judgment.

The judgment debtor owned real estate in joint tenancy with his daughter. The debtor died during pendency of the lawsuit and by operation of law, the title to the property vested in the daughter. Before the debtor died, however, the plaintiff/creditor recorded its judgment lien against the property.

The creditor moved to foreclose its judgment lien against the property. The debtor’s daughter argued the property was exempt from execution by Indiana’s tenancy-by-entirety statute (the TBE statute). Indiana Code Section 34-55-10-2(c)(5).  The trial court agreed with debtor’s daughter and denied the creditor’s motion.

Reversing, the Indiana appeals court first rejected the defendants’ argument that since the debtor died, the property escaped plaintiff’s lien. The court noted that the plaintiff’s judgment lien attached from the moment it recorded its judgment against the property – some two years before debtor’s death. As a result, the debtor’s daughter took the property subject to the plaintiff’s lien.

Next, the appeals court rejected the trial court’s finding that the property was immune from the plaintiff’s judgment lien.

In a joint tenancy, each tenant acquires an equal right to share in the enjoyment of the land during their lives. A joint tenant is severed where one joint tenant conveys his/her interest to another and destroys the right to survivorship in the other joint tenant(s). Once a joint tenancy conveys his/her share to another, he/she becomes a tenant in common with the other co-tenant.

Each joint tenant can sell or mortgage his/her interest in property to a third party and most importantly (for this case at least), each joint tenant is subject to a judgment creditor’s execution. [8]

TBE ownership only exists between spouses and is grounded in legal fiction that husband and wife a single unit. A TBE cannot be severed by the unilateral action of one tenant. An attempted transfer of a TBE ownership interest by only one spouse is a legal nullity. The key difference between joint tenancy and TBE is that with the latter, a creditor of only one spouse cannot execute on the jointly owned property

The Court noted that under Indiana Code 34-55-10-2(c)(5), property held in TBE is exempt from execution of a judgment lien. However, this statute applies uniquely to TBE ownership; not to joint tenancy. According to the court, “[h]ad the Indiana legislature intended to exempt from execution real estate owned as joint tenants, it would have done so.” [14]

Take-away:

This case shows in stark relief the perils of conflating joint tenancy and tenants-by-entirety ownership. If a property deed does not specifically state tenancy by the entirety, the property will not be exempt from attachment by only one spouse’s creditor.