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| Public Act 097-0848
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| HB5434 Enrolled | LRB097 16836 AJO 62018 b |
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AN ACT concerning civil law.
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Be it enacted by the People of the State of Illinois, |
represented in the General Assembly:
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Section 5. The Code of Civil Procedure is amended by |
changing Section 2-1402 and by adding Section 12-107.5 as |
follows:
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(735 ILCS 5/2-1402) (from Ch. 110, par. 2-1402)
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Sec. 2-1402. Supplementary proceedings.
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(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
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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
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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
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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.
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(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,
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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
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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 |
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following form:
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"CITATION NOTICE
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(Name and address of Court)
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Name of Case: (Name of Judgment Creditor),
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Judgment Creditor v.
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(Name of Judgment Debtor),
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Judgment Debtor.
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Address of Judgment Debtor: (Insert last known
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address)
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Name and address of Attorney for Judgment
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Creditor or of Judgment Creditor (If no
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attorney is listed): (Insert name and address)
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Amount of Judgment: $ (Insert amount)
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Name of Person Receiving Citation: (Insert name)
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Court Date and Time: (Insert return date and time
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specified in citation)
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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.
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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
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ABOVE:
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(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.
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(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.
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(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 |
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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.
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(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
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federal minimum hourly wage.
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(5) Pension and retirement benefits and refunds may be |
claimed as exempt
under Illinois law.
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The judgment debtor may have other possible exemptions |
under the law.
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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
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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."
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(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 |
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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:
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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:
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Name:..................... |
Home Phone Number:................. |
Home Address:.................... |
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Date of Birth:...................... |
Marital Status:..................... |
I have.........dependents. |
Do you have a job? YES NO |
Company's name I work for:...................... |
Company's address:..............................
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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 |
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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................ |
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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:
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(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.
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(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
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of either party upon notice to the other.
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(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.
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(4) Enter any order upon or judgment against the person |
cited that
could be entered in any garnishment proceeding.
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(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.
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(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
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costs allowed by the court.
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(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 |
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(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).
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(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.
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(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
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deduction order or garnishment, belonging to the judgment |
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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.
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(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.
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(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.
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(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.
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(i) This Section is in addition to and does not affect
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enforcement of judgments or proceedings supplementary thereto, |
by any other
methods now or hereafter provided by law.
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(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.
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(k) (Blank).
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(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 |
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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.
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(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
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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 |
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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
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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.
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(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:
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(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.
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(2) When the citation is directed against a third |
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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.
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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.
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This subsection (m), as added by Public Act 88-48, is a |
declaration of
existing law.
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(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.
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(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 |
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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.)
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(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 |
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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.
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Section 97. Severability. The provisions of this Act are |
severable under Section 1.31 of the Statute on Statutes.
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Section 99. Effective date. This Act takes effect upon |
becoming law.
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