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Public Act 097-0848


 

Public Act 0848 97TH GENERAL ASSEMBLY



 


 
Public Act 097-0848
 
HB5434 EnrolledLRB097 16836 AJO 62018 b

    AN ACT concerning civil law.
 
    Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
 
    Section 5. The Code of Civil Procedure is amended by
changing Section 2-1402 and by adding Section 12-107.5 as
follows:
 
    (735 ILCS 5/2-1402)  (from Ch. 110, par. 2-1402)
    Sec. 2-1402. Supplementary proceedings.
    (a) A judgment creditor, or his or her successor in
interest when that interest is made to appear of record, is
entitled to prosecute supplementary proceedings for the
purposes of examining the judgment debtor or any other person
to discover assets or income of the debtor not exempt from the
enforcement of the judgment, a deduction order or garnishment,
and of compelling the application of non-exempt assets or
income discovered toward the payment of the amount due under
the judgment. A supplementary proceeding shall be commenced by
the service of a citation issued by the clerk. The procedure
for conducting supplementary proceedings shall be prescribed
by rules. It is not a prerequisite to the commencement of a
supplementary proceeding that a certified copy of the judgment
has been returned wholly or partly unsatisfied. All citations
issued by the clerk shall have the following language, or
language substantially similar thereto, stated prominently on
the front, in capital letters: "IF YOU FAIL YOUR FAILURE TO
APPEAR IN COURT AS HEREIN DIRECTED IN THIS NOTICE, YOU MAY
CAUSE YOU TO BE ARRESTED AND BROUGHT BEFORE THE COURT TO ANSWER
TO A CHARGE OF CONTEMPT OF COURT, WHICH MAY BE PUNISHABLE BY
IMPRISONMENT IN THE COUNTY JAIL." The court shall not grant a
continuance of the supplementary proceeding except upon good
cause shown.
    (b) Any citation served upon a judgment debtor or any other
person shall include a certification by the attorney for the
judgment creditor or the judgment creditor setting forth the
amount of the judgment, the date of the judgment, or its
revival date, the balance due thereon, the name of the court,
and the number of the case, and a copy of the citation notice
required by this subsection. Whenever a citation is served upon
a person or party other than the judgment debtor, the officer
or person serving the citation shall send to the judgment
debtor, within three business days of the service upon the
cited party, a copy of the citation and the citation notice,
which may be sent by regular first-class mail to the judgment
debtor's last known address. In no event shall a citation
hearing be held sooner than five business days after the
mailing of the citation and citation notice to the judgment
debtor, except by agreement of the parties. The citation notice
need not be mailed to a corporation, partnership, or
association. The citation notice shall be in substantially the
following form:
"CITATION NOTICE
        (Name and address of Court)
        Name of Case: (Name of Judgment Creditor),
            Judgment Creditor v.
            (Name of Judgment Debtor),
            Judgment Debtor.
        Address of Judgment Debtor: (Insert last known
            address)
        Name and address of Attorney for Judgment
            Creditor or of Judgment Creditor (If no
            attorney is listed): (Insert name and address)
        Amount of Judgment: $ (Insert amount)
        Name of Person Receiving Citation: (Insert name)
        Court Date and Time: (Insert return date and time
            specified in citation)
    NOTICE: The court has issued a citation against the person
named above. The citation directs that person to appear in
court to be examined for the purpose of allowing the judgment
creditor to discover income and assets belonging to the
judgment debtor or in which the judgment debtor has an
interest. The citation was issued on the basis of a judgment
against the judgment debtor in favor of the judgment creditor
in the amount stated above. On or after the court date stated
above, the court may compel the application of any discovered
income or assets toward payment on the judgment.
    The amount of income or assets that may be applied toward
the judgment is limited by federal and Illinois law. The
JUDGMENT DEBTOR HAS THE RIGHT TO ASSERT STATUTORY EXEMPTIONS
AGAINST CERTAIN INCOME OR ASSETS OF THE JUDGMENT DEBTOR WHICH
MAY NOT BE USED TO SATISFY THE JUDGMENT IN THE AMOUNT STATED
ABOVE:
        (1) Under Illinois or federal law, the exemptions of
    personal property owned by the debtor include the debtor's
    equity interest, not to exceed $4,000 in value, in any
    personal property as chosen by the debtor; Social Security
    and SSI benefits; public assistance benefits; unemployment
    compensation benefits; worker's compensation benefits;
    veteran's benefits; circuit breaker property tax relief
    benefits; the debtor's equity interest, not to exceed
    $2,400 in value, in any one motor vehicle, and the debtor's
    equity interest, not to exceed $1,500 in value, in any
    implements, professional books, or tools of the trade of
    the debtor.
        (2) Under Illinois law, every person is entitled to an
    estate in homestead, when it is owned and occupied as a
    residence, to the extent in value of $15,000, which
    homestead is exempt from judgment.
        (3) Under Illinois law, the amount of wages that may be
    applied toward a judgment is limited to the lesser of (i)
    15% of gross weekly wages or (ii) the amount by which
    disposable earnings for a week exceed the total of 45 times
    the federal minimum hourly wage or, under a wage deduction
    summons served on or after January 1, 2006, the Illinois
    minimum hourly wage, whichever is greater.
        (4) Under federal law, the amount of wages that may be
    applied toward a judgment is limited to the lesser of (i)
    25% of disposable earnings for a week or (ii) the amount by
    which disposable earnings for a week exceed 30 times the
    federal minimum hourly wage.
        (5) Pension and retirement benefits and refunds may be
    claimed as exempt under Illinois law.
    The judgment debtor may have other possible exemptions
under the law.
    THE JUDGMENT DEBTOR HAS THE RIGHT AT THE CITATION HEARING
TO DECLARE EXEMPT CERTAIN INCOME OR ASSETS OR BOTH. The
judgment debtor also has the right to seek a declaration at an
earlier date, by notifying the clerk in writing at (insert
address of clerk). When so notified, the Clerk of the Court
will obtain a prompt hearing date from the court and will
provide the necessary forms that must be prepared by the
judgment debtor or the attorney for the judgment debtor and
sent to the judgment creditor and the judgment creditor's
attorney regarding the time and location of the hearing. This
notice may be sent by regular first class mail."
    (b-1) Any citation served upon a judgment debtor who is a
natural person shall be served by personal service or abode
service as provided in Supreme Court Rule 105 and shall include
a copy of the Income and Asset Form set forth in subsection
(b-5).
    (b-5) The Income and Asset Form required to be served by
the judgment creditor in subsection (b-1) shall be in
substantially the following form:
 
INCOME AND ASSET FORM
        To Judgment Debtor: Please complete this form and bring
    it with you to the hearing referenced in the enclosed
    citation notice. You should also bring to the hearing any
    documents you have to support the information you provide
    in this form, such as pay stubs and account statements. The
    information you provide will help the court determine
    whether you have any property or income that can be used to
    satisfy the judgment entered against you in this matter.
    The information you provide must be accurate to the best of
    your knowledge.
        If you fail to appear at this hearing, you could be
    held in contempt of court and possibly arrested.
        In answer to the citation and supplemental proceedings
    served upon the judgment debtor, he or she answers as
    follows:
 
        Name:.....................
        Home Phone Number:.................
        Home Address:....................
        Date of Birth:......................
        Marital Status:.....................
        I have.........dependents.
        Do you have a job? YES NO
        Company's name I work for:......................
        Company's address:..............................
 
        Job:
            I earn $....... per.......
            If self employed, list here your business name and
        address:
            .............................................................
            Income from self employment is $......... per
        year.
            I have the following benefits with my employer:
            .............................................................
        I do not have a job, but I support myself through:
            Government Assistance $........ per month
            Unemployment $........ per month
            Social Security $........ per month
            SSI $........ per month
            Pension $........ per month
            Other $........ per month
        Real Estate:
        Do you own any real estate? YES NO
        I own real estate at.........., with names of other
    owners
        .............................................................
        Additional real estate I own:........................
        I have a beneficial interest in a land trust. The name
    and address of the trustee is:............. The beneficial
    interest is listed in my name and............................
        There is a mortgage on my real estate. State the
    mortgage company's name and address for each parcel of real
    estate owned:
        .............................................................
        An assignment of beneficial interest in the land trust
    was signed to secure a loan from.............................
        I have the following accounts:
            Checking account at ..........;
              account balance $......
            Savings account at ..........;
              account balance $......
            Money market or certificate of deposit at........
            Safe deposit box at..............................
            Other accounts (please identify):................
        I own:
            A vehicle (state year, make, model, and VIN):....
            Jewelry (please specify):........................
        Other property described as:......................
            Stocks/Bonds.....................
            Personal computer................
            DVD player.......................
            Television.......................
            Stove.......................
            Microwave.......................
            Work tools.......................
            Business equipment.......................
            Farm equipment.......................
            Other property (please specify):
            .............................................................
        Signature:....................
    (b-10) Any action properly initiated under this Section may
proceed notwithstanding an absent or incomplete Income and
Asset Form, and a judgment debtor may be examined for the
purpose of allowing the judgment creditor to discover income
and assets belonging to the judgment debtor or in which the
judgment debtor has an interest.
    (c) When assets or income of the judgment debtor not exempt
from the satisfaction of a judgment, a deduction order or
garnishment are discovered, the court may, by appropriate order
or judgment:
        (1) Compel the judgment debtor to deliver up, to be
    applied in satisfaction of the judgment, in whole or in
    part, money, choses in action, property or effects in his
    or her possession or control, so discovered, capable of
    delivery and to which his or her title or right of
    possession is not substantially disputed.
        (2) Compel the judgment debtor to pay to the judgment
    creditor or apply on the judgment, in installments, a
    portion of his or her income, however or whenever earned or
    acquired, as the court may deem proper, having due regard
    for the reasonable requirements of the judgment debtor and
    his or her family, if dependent upon him or her, as well as
    any payments required to be made by prior order of court or
    under wage assignments outstanding; provided that the
    judgment debtor shall not be compelled to pay income which
    would be considered exempt as wages under the Wage
    Deduction Statute. The court may modify an order for
    installment payments, from time to time, upon application
    of either party upon notice to the other.
        (3) Compel any person cited, other than the judgment
    debtor, to deliver up any assets so discovered, to be
    applied in satisfaction of the judgment, in whole or in
    part, when those assets are held under such circumstances
    that in an action by the judgment debtor he or she could
    recover them in specie or obtain a judgment for the
    proceeds or value thereof as for conversion or
    embezzlement. A judgment creditor may recover a corporate
    judgment debtor's property on behalf of the judgment debtor
    for use of the judgment creditor by filing an appropriate
    petition within the citation proceedings.
        (4) Enter any order upon or judgment against the person
    cited that could be entered in any garnishment proceeding.
        (5) Compel any person cited to execute an assignment of
    any chose in action or a conveyance of title to real or
    personal property or resign memberships in exchanges,
    clubs, or other entities in the same manner and to the same
    extent as a court could do in any proceeding by a judgment
    creditor to enforce payment of a judgment or in aid of the
    enforcement of a judgment.
        (6) Authorize the judgment creditor to maintain an
    action against any person or corporation that, it appears
    upon proof satisfactory to the court, is indebted to the
    judgment debtor, for the recovery of the debt, forbid the
    transfer or other disposition of the debt until an action
    can be commenced and prosecuted to judgment, direct that
    the papers or proof in the possession or control of the
    debtor and necessary in the prosecution of the action be
    delivered to the creditor or impounded in court, and
    provide for the disposition of any moneys in excess of the
    sum required to pay the judgment creditor's judgment and
    costs allowed by the court.
    (c-5) If a citation is directed to a judgment debtor who is
a natural person, no payment order shall be entered under
subsection (c) unless the Income and Asset Form was served upon
the judgment debtor as required by subsection (b-1), the
judgment debtor has had an opportunity to assert exemptions,
and the payments are from non-exempt sources.
    (d) No order or judgment shall be entered under subsection
(c) in favor of the judgment creditor unless there appears of
record a certification of mailing showing that a copy of the
citation and a copy of the citation notice was mailed to the
judgment debtor as required by subsection (b).
    (d-5) If upon examination the court determines that the
judgment debtor does not possess any non-exempt income or
assets, then the citation shall be dismissed.
    (e) All property ordered to be delivered up shall, except
as otherwise provided in this Section, be delivered to the
sheriff to be collected by the sheriff or sold at public sale
and the proceeds thereof applied towards the payment of costs
and the satisfaction of the judgment. If the judgment debtor's
property is of such a nature that it is not readily delivered
up to the sheriff for public sale or if another method of sale
is more appropriate to liquidate the property or enhance its
value at sale, the court may order the sale of such property by
the debtor, third party respondent, or by a selling agent other
than the sheriff upon such terms as are just and equitable. The
proceeds of sale, after deducting reasonable and necessary
expenses, are to be turned over to the creditor and applied to
the balance due on the judgment.
    (f) (1) The citation may prohibit the party to whom it is
    directed from making or allowing any transfer or other
    disposition of, or interfering with, any property not
    exempt from the enforcement of a judgment therefrom, a
    deduction order or garnishment, belonging to the judgment
    debtor or to which he or she may be entitled or which may
    thereafter be acquired by or become due to him or her, and
    from paying over or otherwise disposing of any moneys not
    so exempt which are due or to become due to the judgment
    debtor, until the further order of the court or the
    termination of the proceeding, whichever occurs first. The
    third party may not be obliged to withhold the payment of
    any moneys beyond double the amount of the balance due
    sought to be enforced by the judgment creditor. The court
    may punish any party who violates the restraining provision
    of a citation as and for a contempt, or if the party is a
    third party may enter judgment against him or her in the
    amount of the unpaid portion of the judgment and costs
    allowable under this Section, or in the amount of the value
    of the property transferred, whichever is lesser.
        (2) The court may enjoin any person, whether or not a
    party to the supplementary proceeding, from making or
    allowing any transfer or other disposition of, or
    interference with, the property of the judgment debtor not
    exempt from the enforcement of a judgment, a deduction
    order or garnishment, or the property or debt not so exempt
    concerning which any person is required to attend and be
    examined until further direction in the premises. The
    injunction order shall remain in effect until vacated by
    the court or until the proceeding is terminated, whichever
    first occurs.
    (g) If it appears that any property, chose in action,
credit or effect discovered, or any interest therein, is
claimed by any person, the court shall, as in garnishment
proceedings, permit or require the claimant to appear and
maintain his or her right. The rights of the person cited and
the rights of any adverse claimant shall be asserted and
determined pursuant to the law relating to garnishment
proceedings.
    (h) Costs in proceedings authorized by this Section shall
be allowed, assessed and paid in accordance with rules,
provided that if the court determines, in its discretion, that
costs incurred by the judgment creditor were improperly
incurred, those costs shall be paid by the judgment creditor.
    (i) This Section is in addition to and does not affect
enforcement of judgments or proceedings supplementary thereto,
by any other methods now or hereafter provided by law.
    (j) This Section does not grant the power to any court to
order installment or other payments from, or compel the sale,
delivery, surrender, assignment or conveyance of any property
exempt by statute from the enforcement of a judgment thereon, a
deduction order, garnishment, attachment, sequestration,
process or other levy or seizure.
    (k) (Blank).
    (k-5) If the court determines that any property held by a
third party respondent is wages pursuant to Section 12-801, the
court shall proceed as if a wage deduction proceeding had been
filed and proceed to enter such necessary and proper orders as
would have been entered in a wage deduction proceeding
including but not limited to the granting of the statutory
exemptions allowed by Section 12-803 and all other remedies
allowed plaintiff and defendant pursuant to Part 8 of Article
12 of this Act.
    (k-10) If a creditor discovers personal property of the
judgment debtor that is subject to the lien of a citation to
discover assets, the creditor may have the court impress a lien
against a specific item of personal property, including a
beneficial interest in a land trust. The lien survives the
termination of the citation proceedings and remains as a lien
against the personal property in the same manner that a
judgment lien recorded against real property pursuant to
Section 12-101 remains a lien on real property. If the judgment
is revived before dormancy, the lien shall remain. A lien
against personal property may, but need not, be recorded in the
office of the recorder or filed as an informational filing
pursuant to the Uniform Commercial Code.
    (l) At any citation hearing at which the judgment debtor
appears and seeks a declaration that certain of his or her
income or assets are exempt, the court shall proceed to
determine whether the property which the judgment debtor
declares to be exempt is exempt from judgment. At any time
before the return date specified on the citation, the judgment
debtor may request, in writing, a hearing to declare exempt
certain income and assets by notifying the clerk of the court
before that time, using forms as may be provided by the clerk
of the court. The clerk of the court will obtain a prompt
hearing date from the court and will provide the necessary
forms that must be prepared by the judgment debtor or the
attorney for the judgment debtor and sent to the judgment
creditor, or the judgment creditor's attorney, regarding the
time and location of the hearing. This notice may be sent by
regular first class mail. At the hearing, the court shall
immediately, unless for good cause shown that the hearing is to
be continued, shall proceed to determine whether the property
which the judgment debtor declares to be exempt is exempt from
judgment. The restraining provisions of subsection (f) shall
not apply to any property determined by the court to be exempt.
    (m) The judgment or balance due on the judgment becomes a
lien when a citation is served in accordance with subsection
(a) of this Section. The lien binds nonexempt personal
property, including money, choses in action, and effects of the
judgment debtor as follows:
        (1) When the citation is directed against the judgment
    debtor, upon all personal property belonging to the
    judgment debtor in the possession or control of the
    judgment debtor or which may thereafter be acquired or come
    due to the judgment debtor to the time of the disposition
    of the citation.
        (2) When the citation is directed against a third
    party, upon all personal property belonging to the judgment
    debtor in the possession or control of the third party or
    which thereafter may be acquired or come due the judgment
    debtor and comes into the possession or control of the
    third party to the time of the disposition of the citation.
    The lien established under this Section does not affect the
rights of citation respondents in property prior to the service
of the citation upon them and does not affect the rights of
bona fide purchasers or lenders without notice of the citation.
The lien is effective for the period specified by Supreme Court
Rule.
    This subsection (m), as added by Public Act 88-48, is a
declaration of existing law.
    (n) If any provision of this Act or its application to any
person or circumstance is held invalid, the invalidity of that
provision or application does not affect the provisions or
applications of the Act that can be given effect without the
invalid provision or application.
    (o) The changes to this Section made by this amendatory Act
of the 97th General Assembly apply only to supplementary
proceedings commenced under this Section on or after the
effective date of this amendatory Act of the 97th General
Assembly. The requirements or limitations set forth in
subsections (b-1), (b-5), (b-10), (c-5), and (d-5) do not apply
to the enforcement of any order or judgment resulting from an
adjudication of a municipal ordinance violation that is subject
to Supreme Court Rules 570 through 579, or from an
administrative adjudication of such an ordinance violation.
(Source: P.A. 97-350, eff. 1-1-12.)
 
    (735 ILCS 5/12-107.5 new)
    Sec. 12-107.5. Body attachment order.
    (a) No order of body attachment or other civil order for
the incarceration or detention of a natural person respondent
to answer for a charge of indirect civil contempt shall issue
unless the respondent has first had an opportunity, after
personal service or abode service of notice as provided in
Supreme Court Rule 105, to appear in court to show cause why
the respondent should not be held in contempt.
    (b) The notice shall be an order to show cause.
    (c) Any order issued pursuant to subsection (a) shall
expire one year after the date of issue.
    (d) The first order issued pursuant to subsection (a) and
directed to a respondent may be in the nature of a recognizance
bond in the sum of no more than $1,000.
    (e) Upon discharge of any bond secured by the posting of
funds, the funds shall be returned to the respondent or other
party posting the bond, less applicable fees, unless the court
after inquiry determines that: (1) the judgment debtor
willfully has refused to comply with a payment order entered in
accordance with Section 2-1402 or an otherwise validly entered
order; (2) the bond money belongs to the debtor as opposed to a
third party; and (3) that any part of the funds constitute
non-exempt funds of the judgment debtor, in which case the
court may cause the non-exempt portion of the funds to be paid
over to the judgment creditor.
    (f) The requirements or limitations of this Section do not
apply to the enforcement of any order or judgment resulting
from an adjudication of a municipal ordinance violation that is
subject to Supreme Court Rules 570 through 579, or from an
administrative adjudication of such an ordinance violation.
 
    Section 97. Severability. The provisions of this Act are
severable under Section 1.31 of the Statute on Statutes.
 
    Section 99. Effective date. This Act takes effect upon
becoming law.

Effective Date: 07/25/2012