The Third-Party Citation: How Long Does It Last?

Shipley v. Hoke, 2014 IL App (4th) 130810 provides an exhaustive discussion of Illinois’ post-judgment enforcement rules in the context of a judgment creditor trying to reach debtor assets held by third parties.

It’s key points concerning a citation’s life span include:

– Code Section 2-1402 allows a judgment creditor to prosecute supplementary proceedings for the purposes of examining a judgment debtor and to compel the application of non-exempt assets or income discovered toward the payment of a judgment;

– Section 2-1402(f)(1) contains a “restraining provision” that prohibits any person served with a citation from allowing a transfer of property belonging to a judgment debtor that may be applied to the outstanding judgment amount;

– If someone violates the restraining provision, the Court can punish the violator by holding him in contempt or entering a money judgment against him in the amount of the property he transferred; 

– A third-party citation must be served in the same manner a (“first party”) citation is served (e.g. either by personal service or certified mail);

– Supreme Court Rule 277(f) provides that a citation proceeding automatically terminates six months from the date of the respondent’s first personal appearance unless the court grants an extension of the citation;

– This six-month rule is an affirmative defense that must be raised by a citation respondent or else it’s waived;

-Rule 277(f)’s purpose is to prevent a creditor from harassing a judgment debtor or a third party subject to a citation proceeding and is designed to provide an incentive for creditor’s to diligently work to discover debtor assets;

– While a court can retain jurisdiction over a turnover order entered before but not complied with until after the expiration of the six-months, the court does not maintain jurisdiction to enforce any restraining provision violations past that six-month mark.

– Rule 277 does permit a creditor to request an extension of the six-month limitation period indefinitely to fit the needs of a given case.

(¶¶ 78-81, 92-93).

Take-away: While I often serve bank respondents with third-party citations by certified mail (since banks usually aren’t motivated to evade service),  a judgment creditor should serve any non-bank respondent by personal service; either via county sheriff or a special process server.

In addition, the creditor should keep track of when a judgment debtor first appears in response to a citation.  If it looks like the creditor’s post-judgment case isn’t going to be finished at the six-month mark, he should move to extend the citation for as long as necessary to complete his examination of the debtor and any third-party(ies).


Requests to Admit in Illinois: How and When To Respond (The 28-Day Rule)

I once read a tongue-in-cheek article that said if you’re ever served with a Request to Admit Fact (RTA), you should staple it to your forehead. (Ouch!)

That way, you won’t forget about the RTA and miss the 28-day deadline to send your sworn responses to the opposing side.  And while some recent cases may have softened Illinois’ draconian RTA rules, the hyperbolic sentiment expressed in the “staple statement” endures: a failure to timely respond to an RTA can have grave consequences for your case.  The main one being that the facts (or documents) contained in the RTA can be deemed admitted against you.

Once that happens, the party sending the RTA can move for summary judgment and win all or most of his case.

Armagan v. Pesha, 2014 IL App (1st) 121840 examines the question of when the 28-day timing requirement starts and ends and when the service of and response to an RTA is deemed complete under Illinois law.

The plaintiff deposited over 250 gold coins with the defendants who operated a rare coin shop.  Plaintiff alleged he placed the coins with the defendants temporarily with the understanding that plaintiff could always get them back.  Several months later when plaintiff asked for the coins back, defendants apparently refused and plaintiff sued for conversion, breach of bailment and other claims.

During discovery, plaintiff mailed an RTA on defendants on November 18, 2010.  Defendants filed their response with the court on December 17, 2010 (29 days later) and mailed the response to plaintiff that same day.  Plaintiff then moved to deem the RTA facts admitted on the basis that defendant missed the 28-day deadline by one day.

The trial court agreed (November 18 service is complete November 22, 2010; December 17, 2010 service is complete on December 21, 2010 – 29 days after November 22, 2010), deemed the facts admitted and entered summary judgment for plaintiff for almost $500,000.  An expensive, one-day mistake to be sure.  Defendants appealed.

Held: Trial Court reversed.  Defendants’ RTA response was timely under Illinois Supreme Court Rule 12.

The First District found that defendants timely responded to the RTA.  In doing so, the Court discussed the interplay between Supreme Court Rules 216, 12 and 11 which govern RTAs and the manner of serving documents. The key rules:

the purpose of Rule 216  is to narrow issues for trial and only requires the responding party to serve his responses within the 28-day deadline; as opposed to filing them with the court within 28 days;

– Rule 216 requires only that the RTA responses be served (by the responding party), not received (by the requesting party) within 28 days;

– failing to comply with Rule 216’s requirements can result in a judicial admission of the facts contained in the RTA;

– Under Rule 12(c), service is complete four (4) days after mailing;

– the method of service differs from proof of service;

– serving a document by U.S. mail is an acceptable method of service; 

– Rule 11 specifically allows a party to serve documents (other than complaint) by U.S. mail (“regular” mail);

¶¶ 16-20.

Application: Plaintiff mailed his RTA on November 18, 2010.  Under Rule 12, service of the RTA was complete on November 22, 2010 – four days later.  Defendants then had 28 days – through December 20, 2010 – to serve their response.  Since defendants served their RTA response by placing it in the mail on December 17, 2010, they complied with the 28-day deadline (with three days to spare). ¶ 23.

Policy concerns also motivated the Court’s reversal.  It noted that Illinois has a broad policy of cases being resolved on the merits instead of technicalities and that discovery is not designed for tactical gamesmanship or a trap for the unwary.  Accordingly, the Court would have allowed the defendants response even if it was late under Rule 183 (which governs extension of time for “good cause”).  ¶¶ 25-26.

Take-aways: A Request to Admit is the quintessential “gotcha” discovery device.  The serving party hopes you will blow the 28-day deadline and then do exactly what the plaintiff did here: try to get the facts deemed admitted against you.

This case seems to strike a fair balance between giving teeth to a discovery tool while at the same time being willing to look at the realities of litigation practice, where the exigencies of the moment practically dictate last-minute responses.

In hindsight, the defendants’ attorney probably should have hand-delivered and faxed (and e-mailed) his response instead of mailing it.  That would have saved him a lot of time and (I imagine) frantic energy trying to undo the $500,000 judgment against his client.


Those Slippery People: Six (6) Failed Service Attempts Not Enough For Service by Special Order of Court (IL Law)


Code Section 2-203.1, titled “Service by Special Order of Court” allows a plaintiff to request service by alternative or “comparable” means when faced with an elusive defendant.  735 ILCS 5/2-203.1.  The statute requires a supporting affidavit that details the specific attempts made to locate a defendant and permits the court to authorize service in a manner that complies with due process.  Id. 

I usually file Section 2-203.1 motions in cases involving high-rise condominium defendants (typically in mechanics’ lien actions).  Some of these condos are impenetrable fortresses it seems; which makes it next to impossible to serve a building resident.  I support the motion with an affidavit of a special process server who details the efforts he made (including dates, times, locations, methods) to serve the defendant. 

If the court grants the motion, I tell the process-server to leave a copy of the summons and complaint with the defendant’s doorman (where a condo is involved) or by leaving process on defendant’s porch or posting on the front door (in case of a house) while also mailing the process to the defendant’s home and place of business (if known).  

But how many times do you have to try to serve a defendant directly before alternate service methods can be employed?  

In Sutton v. Ekong, 2013 IL App (1st) 121975 , the First District vacated a trial court default judgment and held that six unsuccessful service attempts was insufficient to merit service by special order of court. 

The reason: the personal injury plaintiff made no attempt to serve defendant at his easily discoverable business address prior to filing his 2-203.1 motion. 

After his sixth failed attempt, the plaintiff served defendant through the Illinois Secretary of State pursuant to Section 10-301 of the Illinois Vehicle Code: the section that governs serving non-resident defendants.  Ekong, at ¶ 6; 625 ILCS 5/10-301.  

A plaintiff who seeks to invoke special order of court service under Code Section 2-203.1 must strictly comply with that section and a failure to do so results in improper service. 

 The record demonstrated that Defendant’s business address was “easily obtainable” and “in the phone book.”  (¶¶ 21-22).  Evidence of the defendant’s easily found work address was the fact that plaintiff served a citation to discover assets on the defendant at the work address. (¶ 23). 

The First District held that the plaintiff failed to perform the type of search or investigation “an earnest person” trying to serve a defendant would make and should have tried to serve defendant at his business address before seeking alternative service methods. 

The Court distinguished In re Marriage of Schmitt ( a divorce case where a plaintiff was allowed to employ alternate service methods after eleven (11) unsuccessful attempts.  (¶ 24).

But here, the Court found that since there was no basis to justify service through the Secretary of State, the trial court never properly acquired jurisdiction over the defendant.  Accordingly, the default judgment is void from its inception.

Take-aways: I feel the plaintiff’s pain on this one.  Slippery defendants can be nightmares to serve through normal channels.  But this case’s lesson is clear: plaintiffs should make thorough and meaningful efforts to investigate a defendant’s whereabouts and try to serve him not only at his home but also his business address. 

Service through the Secretary of State or through comparable methods really should be a last resort.  Where a defendant’s residence or business address is readily obtainable through rudimentary investigation, service by special order of court isn’t warranted and any default judgment based on such service will likely be vacated.