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T H

KANE COUNTY BAR ASSOCIATION
A N N UA L C O M M E RC I A L L AW S E M I N A R

F R E QU E N T LY
L I T I GAT E D I S S U E S I N
C I TATIO N S TO
D I S COV E R AS S E T S
JANUARY 18, 2017

M I C H A E L W. H U S E M A N
DREYER, FOOTE, STREIT,
F U R G A S O N & S L O C U M , P. A .
1999 WEST DOWNER PLACE
AURORA, IL 60506
(630)897-8764
mhuseman@dreyerfoote.com

FREQUENTLY LITIGATED I SSUES
I N C I T A T I O N S T O D I S C OV E R
ASSETS
TA B L E O F C O N T E N T S

The Citation Lien.................................................................................................................................................. 3
Priority Between Competing Lienholders ………………………………………………………...3
Extent of the Citation Lien Against Debtors and Third Parties .............................................................. 4
Remedies for Violation of the Lien and Restraining Provisions .............................................................. 4
Citation Liens in Bankruptcy ......................................................................................................................... 6
Survival of Liens on Personal Property Following Termination of the Citation .................................. 7
Relief Available in Citations................................................................................................................................ 7
A Citation is a Fishing Expedition ................................................................................................................ 7
Turnover Orders Against Third-Parties are Judgments ............................................................................ 8
The Court’s Authority Under 735 ILCS 5/2-1402(c) ................................................................................ 9
Additional Relief Under the Citation Statute ............................................................................................ 10
Fraudulent Transfers and Successor Liability. ............................................................................................... 11
The Tradtional Rule....................................................................................................................................... 11
Fraudulent Transfers ..................................................................................................................................... 11
Successor Liability, Veil Piercing, Alter Ego, etc. ..................................................................................... 12
Motion for Contempt Order Pursuant to 735 ILCS 5/2-1402(f)(1) and Sup. Ct. Rule 277(h) ...... Ex. 1

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ARTICLE I.

T H E C I TA T I O N L I E N

A. Priority Between Competing Lienholders
1. The priority of competing liens is determined by the order in which the liens were
perfected. Tobias v. Lake Forest Partners, LLC, 402 Ill. App. 3d 484 (1st Dist. 2010).
2. Service of a citation to discover assets on the judgment debtor perfects the judgement lien
against all personal property belonging to the judgment debtor that was within his
possession or control, or in the possession or control of third-parties. Dexia Crédit Local
v. Rogan, 629 F.3d 612, 632 (7th Cir. 2010); See also 735 ILCS § 5/2-1402(m).
3. What type of lien are you up against?
a.

Security interests in collateral can be perfected by filing a financing statement with
the Secretary of State. 810 ILCS § 5/9-301, et seq.

b. Some liens can be perfected by possession of the collateral pursuant to Article 9
of the UCC, without filing a financing statement. 810 ILCS § 5/9-313.
c. Other liens in Illinois can be perfected by control of the collateral:

ILCS Section
770 ILCS § 40/48
770 ILCS § 40/49
770 ILCS § 40/50
770 ILCS § 40/50a
770 ILCS § 45/1
770 ILCS § 85/1
770 ILCS § 90/1

Lien Act Name
Type of Property Possessed
Innkeepers Lien Act; Hotels, Inns and Baggage and other valuables
B
di HLien Act; Stable
Innkeepers
Horses, carriages, harness, tack and
equipment
Keepers
Innkeepers Lien Act; Agisters
Domestic animals
Innkeepers Lien Act; Threshermen
Labor and Storage Lien Act
Preference of Claims for Wages Act
Sales of Unclaimed Property by
Carrier or Warehouseman
Self-Service Storage Facility
Act

Crops being threshed
Chattel stored or improved
Property of dissolved business in
Any unclaimed property in
hands of common carrier or
Personal property stored in selfstorage facility

770 ILCS § 105/1

Tool and Die Lien Act

Common law

Artisan’s Lien

Customer’s tools, dies, molds,
jigs, fixtures, forms or patterns
Equipment repaired by artisan

Common law

Automobile Repairman’s Lien

Car worked on

770 ILCS § 95/1

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B. The Extent of the Citation Lien Against Debtors and Third Parties
1. According to 735 ILCS 5/2-1402(m), the judgment or balance due on the judgment
becomes a lien when a citation is served. The lien binds nonexempt personal property,
including money, choses in action (claims for damages), and effects of the judgment
debtor as follows:
a.

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. 735 ILCS 5/2-1402(m)(1).

b. 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. 735 ILCS 5/21402(m)(2).
2. The citation lien attaches not only to property in the hands of the respondent on the
day of service, but all property acquired by the respondent until the citation is
discharged.
a.

This is a significant difference between citations and nonwage
garnishments pursuant to 735 ILCS 5/2-701, et seq.

3. The citation to discover asset forms used in Kane County contain the following
language, which is taken from the “restraining provision” contained in 735 ILCS 5/21402(f)(1):
a.

“YOU ARE PROHIBITED from making or allowing any transfer or
other disposition of, or interfering with, any property not exempt from
execution or garnishment belonging to the Judgment Debtor or to which
the Judgment Debtor may be entitled or which may be acquired by or
become due to the Judgment Debtor and from paying over or otherwise
disposing of any money not so exempt, which is due or becomes due to
the Judgment Debtor, until further order of Court or termination of the
proceedings. You are not required to withhold the payment of any
money beyond double the amount of the balance due.”

C. Remedies for Violation of the Lien and Restraining Provisions
1.

Any transfers of non-exempt property after receipt of the citation that are made
without court approval are in violation of the citation lien. Different relief is available
to the creditor for violation of the lien depending on whether the transfer was made
by the debtor or a third party and whether the debtor is a corporation or an
individual.

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a.

2.

The court may punish any party who violates the restraining provision of a
citation as and for 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 property transferred, whichever is less. 735 ILCS 5/2-1402(f)(1).

Corporate debtors are not allowed to pay any operating expenses following service
of a citation. See City of Chicago v. Air Auto Leasing Co., 297 Ill.App.3d 873 (1st
Dist. 1998).
a.

If the judgment is against a corporation, always name and serve an individual
officer or agent with the citation. You want leverage over an individual
person if the corporation transfers assets

b. In the Air Auto Leasing case, the plaintiff obtained a judgment against a
corporate defendant. The citation was served on the sole signatory on the
corporation’s checking account. Following service of the citation, the debtor
wrote checks totaling nearly $82,000 which were for legitimate business
expenses, including payroll.
The plaintiff sought an $82,000 judgment against the individual for signing
the checks in violation of Section 2-1402(f)(1). The trial court denied the
motion claiming that the transfers were made in the ordinary course of
business and were made for proper corporate purposes.
The appellate court noted that there are only two exceptions to the Section
2-1402(f)(1) restraining provision. The first exception pertains to transfers
of property that are “exempt from the enforcement of a judgment.” The
second exception applies to property of the judgment debtor in the hands of
third parties that is in excess of an amount that is “double the balance due
sought to be enforced by the judgment creditor.”
The court held that there are no statutory exceptions for payments made to
trade creditors or transfers made in the ordinary course of business, including
payroll.
3.

With respect to individual debtors, the restraining provision does not apply to
property that is “exempt from the enforcement of a judgment,” so individual
debtors are probably allowed to spend or transfer property up to the amount of
their wildcard exemption during the course of a citation, although an aggressive
creditor should challenge any luxurious or frivolous expenses.

4.

Practice Pointer:
a.

It is common that debtors fail to appear on the scheduled return date. It may
take one or two alias rules to show cause, or even a body writ, before the
debtor actually appears in court for the citation exam.

b. Review all bank statements dating back to the date of service of the citation.
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c. If any money at all has left the account of a corporate debtor, file a motion
for contempt that asks for the individual who allowed the transfer to be jailed
until the money is turned over to the creditor, or in the alternative, for a
personal judgment against the individual.
d. If any money has left the account of an individual debtor, analyze whether
that money exceeds the wildcard. If so, file a motion for contempt that asks
that the debtor be jailed until the money is turned over to the creditor.
A SAMPLE MOTION IS ATTACHED AS EX. 1.
D. Citation Liens in Bankruptcy
1.

A perfected citation lien gives the creditor secured status in bankruptcy with respect
to all non-exempt personal property of the debtor.
a.

The creditor’s lien will be superior to the trustee’s lien, but other secured
creditors may challenge priority.
i. Any interested party, including other creditors or the trustee, can
challenge perfection of the citation lien.
ii. A citation lien perfected within 90 days of the bankruptcy filing, or
within one year for an insider, can be avoided as a preference.

b. “Because debtor's bank account was ‘personal property’ under the definition
in 735 ILCS 5/2-1402(m)(1), the $10,000 that remained in the account in
August 2009, when bankruptcy began, was part of debtor's personal property
and covered by a lien superior to the bankruptcy trustee's; the order lifting
the automatic stay so that judgment creditor could collect from the bank
while the bankruptcy proceeded, was affirmed.” In re Porayko, 705 F.3d 703,
(7th Cir. 2013).
2.

Unless the lien is specifically avoided by the debtor, the lien will pass through
bankruptcy (just like a recorded memorandum or mortgage with respect to real
estate).

3.

The six month duration of the citation set forth in S.Ct. Rule 277(f) is tolled during
the bankruptcy pursuant to Section 108 of the bankruptcy code.
a.

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Section 108(c) of the bankruptcy code provides that “If nonbankruptcy law,
an order entered in a nonbankruptcy proceeding, or an agreement fixes a
period for commencing or continuing a civil action in a court other than a
bankruptcy court…and such claim has not expired before the date of the
filing of the petition, then such period does not expire until the later of (1)
the end of such period, including any suspension of such period occurring
on or after the commencement of the case; or (2) 30 days after the
termination or expiration of the automatic stay.”

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b. DO NOT VOLUNTARILY DISMISS THE CITATION IF THE
DEBTOR FILES BANKRUPTCY.
i. Section 108(c) will not apply to a dismissed citation. If the debtor files
bankruptcy during the course of a citation, the creditor can seek relief
from the automatic stay or let the citation lapse (simply take it “off call”)
and then use Section 108(c) to resume the citation following bankruptcy.
See In re Tires N Tracks, Inc., 498 B.R. 201, 205 (Bankr. N.D. Ill. 2013).
E. Survival of Liens on Personal Property Following Termination of the Citation
1.

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. 735 ILCS 5/2-1402(k-10).

ARTICLE II.

R E L I E F AVA I L A B L E I N C I TA T I O N S

A. A Citation is a Fishing Expedition
1.

The citation authorizes the creditor to go on a fishing expedition for the judgment
debtor’s assets if the judgment creditor has a reasonable belief that the respondent
possesses assets of the debtor. Regan v. Garfield Ridge Trust & Savings Bank, 247
Ill.App.3d 621 (2nd Dist. 1993).
a.

2.

“Thus, contrary to the determination of the trial court, a ‘fishing expedition’ for
assets is permissible in the context of an initial proceeding to discover assets, if it
is based on a belief that such assets are in the third party's possession.” Regan at
624.

Once the judgment creditor has established some basis to “believe” the third-party
“has property of or is indebted to the judgment debtor,” Ill. Sup. Ct. R. 277(a), the
creditor may ask the third-party for a wide range of information, including any that
“may” lead to information about the debtor’s assets. See Ill. Sup. Ct. R. 277(c)(4). The
court stresses that there need not be certainty that the creditor’s requests will lead to
discovery of assets—a mere possibility is sufficient. Broad discovery is thus allowable
in citation proceedings involving a third-party, including inquiries that may lead to
information about the debtor’s assets that are not in the third-party’s possession.
JPMorgan Chase Bank v. PT Indah Kiat Pulp & Paper, 02 C 6240, 2012 U.S. Dist.
LEXIS 83593 (N.D. Ill. June 14, 2012).

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3.

The following is another quote from Judge James F. Holderman’s opinion in
JPMorgan Chase Bank v. PT Indah Kiat Pulp & Paper:
“The defendants’ principal argument in favor of quashing the citation issued to TST
is that the citation improperly requests information about assets that are not in
TST’s possession. According to the defendants, those requests are improper
because citations to discover assets “are restricted to inquiries about the suspected
assets of the judgment debtor currently in the possession of the third party.” That
assertion, however, fundamentally misunderstands the purpose of a citation
proceeding, which is to allow the judgment creditor to examine a third-party “to
discover assets or income of the debtor.” 735 ILCS 5/2-1402.
Accordingly, a citation “may require . . . the production . . . of any books, papers,
or records in [the third-party’s] possession or control which have or may contain
information concerning the property or income of the debtor.” Ill. Sup. Ct R.
277(c)(4). As the leading treatise on the enforcement of judgments in Illinois has
explained:
The citation statute, 735 ILCS 5/2-1402, expressly authorizes citations to be
used to locate assets of the judgment debtor; thus, investigatory citations are
permissible. An “investigatory citation” is a citation to discover assets issued to
a third party that the judgment creditor believes has information regarding the
assets of the judgment debtor. Such third parties include mortgage lenders,
vehicle lenders, and the like. Typically, a creditor will have a credit bureau report
(CBR)of a debtor and will serve an investigatory citation on a party that recently
approved the debtor for credit, requesting copies of recent credit applications,
as credit applications typically will include information relating to the debtor’s
employment and assets. Robert G. Markoff ed., Creditors’ Rights in Illinois § 2.71
(rev. 2011).
Requests for information directed to discovering assets of the judgment debtor that
are not in the third party’s possession are thus permissible.”

B. Turnover Orders Against Third-Parties are Judgments
1.

When dealing with third party citations, a common remedy will be a turnover order,
as is more fully discussed below. Turnover orders can be entered when there are
assets in the hands of third-parties that could be recovered by the judgment debtor.
Turnover orders are actually judgments against the third-party, in favor of the
judgment debtor, for use of the plaintiff.

2.

The proper language for a turnover order is as follows:
a.

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Plaintiff’s motion for turnover order is granted. Judgment is hereby entered
against Third-Party Respondent in the amount of $_________, in favor of
Defendant for the use and benefit of the Plaintiff.

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C. The Court’s Authority under 735 ILCS 5/2-1402(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 applied in satisfaction of the
judgment, in whole or in part, money, choses of 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.
a.

See 735 ILCS 5/2-1402(e) for guidance on the sale of assets. The property
can be delivered 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 a selling agent other than the
sheriff.”

b. Auctioneers or car dealerships can be appointed as selling agents for the sale
of machinery or automobiles.
c. Consider the appointment of the creditor’s attorney as selling agent,
especially for jewelry, gold, collectables, etc., or any other assets.
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.
a.

3.

Orders for the payment of money continue in effect notwithstanding the
termination of the proceedings until the judgment is satisfied or the court
orders otherwise. S. Ct. Rule 277(f).

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.
a.

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The last sentence of this section allows the creditor to recover
“indebtedness” due to the corporate debtor created when corporate funds

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were used to pay personal expenses of the corporation’s principals. Bentley
v. Glenn Shipley Enterprises, Inc., 248 Ill.App.3d 647 (4th Dist. 1993).
b. Property shall be delivered to the sheriff or a selling agent pursuant to 735
ILCS 5/2-1402(e).
4.

Enter any order upon or judgment against the person cited that could be entered in
any garnishment proceeding.
a.

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.
a.

6.

Therefore, conditional judgments, summonses to confirm, and then final
judgments are available as a sanction for failure to answer a third party
citation.

The court can execute a deed if the debtor refuses to do so. In re Marriage
of Shelton, 127 Ill.App.3d 775 (5th Dist. 1984).

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.

D. Additional Relief Available Under the Citation Statute
1.

Wage Deduction Orders - If the court determines that any property held by a third
party respondent is wages, 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. 735 ILCS 5/2-1402(k-5).

2.

Garnishment Orders – The court may enter any order upon or judgment against
the respondent cited that could be entered in any garnishment proceeding under
Part 7 of Article XII (Garnishment) of this Code. 735 ILCS 5/2-1402(k-3).

3.

Charging Orders – The Limited Liability Company Act says that the only way to
enforce a judgment against a member’s distributive interest is through a charging
order. However, there was no guidance in the law for how to obtain a charging
order until the enactment of 735 ILCS 5/12-112.5 on January 1, 2012, which states
that “If a statute or case requires or permits a judgment creditor to use the remedy
of a charging order, said remedy may be brought and obtained by serving any of

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the various enforcement procedures set forth within this Article XII or by serving
a citation pursuant to Section 2-1402.”
4.

Liens on Unrelated Litigation – If the debtor is a plaintiff, or otherwise expecting a
recovery, in unrelated litigation, Podvinec v. Popov, 168 Ill.2d 130 (1995) authorizes
a petition to spread the citation lien of record in the unrelated case. If the defendant
in that case transfers funds to the debtor in violation of the lien, that party will
become liable to the judgment creditor for the amount that was transferred or the
amount of the lien, whichever is less.

ARTICLE III. FRAUDULENT TRANSFERS AND SUCCESSOR LIABILITY IN THIRD
PA RT Y C I TA T I O N S

A. The general distinction between whether a claim for fraudulent transfer or successor
liability can be brought in a supplemental proceeding focuses on whether the creditor can
identify specific assets of the debtor, or the proceeds from those assets, in the possession
of a third party. If so, the creditor can seek turnover in a supplementary proceeding. But
if the creditor seeks to hold the transferee directly liable for the judgment debt up to the
value of the transferred asset, the claim must usually be brought as a separate proceeding,
subject to certain exceptions outlined below.
1.

An evidentiary hearing is required, unless waived by the parties, in order for a judge
to determine fraudulent transfer or successor liability issues in supplemental
proceedings. See Workforce Solutions v. Urban Servs. of Am., 2012 IL App (1st)
111410.

B. Fraudulent Transfers
1.

Fraudulent transfer claims always directly involve the judgment debtor’s assets or
the proceeds from the sale of those assets.
a.

A claim made under the Fraudulent Transfer Act may be brought in a
supplemental proceeding. Workforce Solutions v. Urban Services of America,
2012 IL App (1st) 111410.

b. An action brought pursuant to the Fraudulent Transfer Act directly concerns the
assets of the judgment debtor and imposes liability based on the value of the
transferred assets. Such an action does not concern personal liability; rather, it
attempts to avoid the transfer and seeks the actual assets transferred. Thus, the
complaint to set aside the fraudulent transfer was properly brought in a
supplemental proceeding. Kennedy v. Four Boys Labor Services, Inc., 279
Ill.App.3d 361, 369 (2nd Dist. 1996).
i. Where a third party has transferred the assets of the corporate debtor for
consideration, with full knowledge of the existence of an outstanding
claim against the corporation, then the judgment creditor may properly
treat the proceeds from the sale of the assets as property of the corporate
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debtor, which is recoverable pursuant to Section 2-1402 of the Code of
Civil Procedure. Four Boys Labor at 367.
C. Successor Liability, Veil Piercing, Alter Ego, etc.
1.

The best practice may be to use supplemental proceedings to conduct pre-trial
discovery before filling an independent action for successor liability or to pierce the
corporate veil. However, two Seventh Circuit cases very clearly allow these types
of theories to be litigated in supplemental proceedings.
a.

Plaintiff was entitled to pierce the corporate veil and levy on the owners’
personal assets [in a third-party citation] to the full extent of his judgment; in
the jargon of corporate law, the corporation was not a separate entity from
its owners but merely their alter ego. Brandon v. Anesthesia & Pain
Management Associates, Ltd., 419 F.3d 594 (7th Cir. 2005).

b. In response to the Rogan Children's argument that Dexia could not use alter
ego or veil piercing claims in a supplementary proceeding, the court explained
that Illinois allows a judgment creditor to reach assets of a debtor that are in
the hands of third parties, which was what Dexia was seeking. The Rogan
children place undue emphasis on the labels Dexia has used to describe its
equitable theories. In these supplementary proceedings, Dexia does not
attempt to impose liability directly on Rogan domestic trusts. Rather, Dexia
asserts that those trusts hold Peter Rogan's assets. Dexia may use equitable
theories, including an alter ego theory or similar theories, to attempt to prove
that assertion. Dexia Credit Local v. Rogan, 629 F.3d 612 (7th Cir. 2010).

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EXHIBIT 1

IN THE CIRCUIT COURT FOR THE SIXTEENTH JUDICIAL CIRCUIT
KANE COUNTY, ILLINOIS
---------------------,

)
)
)
)
)
)
)
)
)

Plaintiff,
v.
---------------------,
Defendants.

Case No.

MOTION FOR CONTEMPT ORDER AGAINST DEFENDANT PURSUANT
TO 735 ILCS 5/2-1402(f)(1) and SUPREME COURT RULE 277(h)
NOW COMES plaintiff, -------------------, by and through his attorney, Michael W.
Huseman of Dreyer, Foote, Streit, Furgason & Slocum, P.A., and for his Motion for Contempt
Order Against Defendant Pursuant to 735 ILCS 5/2-1402(f)(1) and Supreme Court Rule 277(h),
states as follows:
RELEVANT AUTHORITY
1.

The judgment or balance due on the judgment becomes a lien when a citation is

served in accordance with subsection (a) of this section … 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. 735
ILCS 5/2-1402(m)(1) (Emphasis added).
2.

The court may punish any party who violates the restraining provision of a citation

as and for contempt. 735 ILCS 5/2-1402(f)(1).
3.

Any person who fails to obey a citation, subpoena, order or other direction of the

court issued pursuant to any provision of this rule may be punished for contempt. Sup. Ct. Rule
277(h).

Page 1 of 5

FACTUAL BACKGROUND AND ARGUMENT
4.

Plaintiff has a judgment against ------------- (“Defendant”) with an approximate

balance of $124,623.22, as of January 10, 2015. A true and correct copy of the judgment is
attached as Exhibit 1.
5.

On September 24, 2014, Defendant was served with a citation to discover assets

(the “citation”). A true and correct copy of the Affidavit of Service is attached as Exhibit 2. The
citation remains in full force and effect to this day.
6.

The citation documents contained a “restraining provision” in clear and

conspicuous language that “You are prohibited from making or allowing any transfer or other
disposition of, or interfering with, any property not exempt from the enforcement of a judgment…
(Emphasis in original).”
7.

On October 21, 2014, the citation was continued by agreement at Defendant’s

request. The court order indicated that “All provisions of the citation remain in full force and
effect. Defendant is prohibited from transferring any assets without order of court.”
8.

On December 4, 2014, Defendant failed to appear in court.

9.

On January 8, 2015, Defendant made his first appearance in court in response to

the citation. At that time, Defendant produced various financial documents, but failed to produce
statements for one bank account.
10.

Later in the afternoon on January 8, 2015, Defendant produced statements to

plaintiff’s counsel for a bank account ending in 8891 (the “8891 account”).
11.

On September 24, 2014, the date that Defendant was served with the citation, the

8891 account contained a negative balance of ($300.89). True and correct copies of the 8891
account statements are attached as Exhibit 5.

Page 2 of 5

12.

Since September 24, 2014, the following deposits have been made into the 8891

account:
a.

October 8, 2014 - $10,000.00

b.

October 9, 2014 - $400.00

c.

November 4, 2014 - $605.16

d.

November 4, 2014 - $300.00

e.

November 12, 2014 - $2,445.00

f.

November 13, 2014 - $5,375.00

g.

November 21, 2014 - $2,687.50

h.

November 26, 2014 - $526.45

i.

November 26, 2014 - $500.00

j.

December 16, 2014 - $1,100.00

k.

December 29, 2014 - $505.49

13.

The net amount of deposits into the 8891 account since service of the citation is

$24,143.71, after accounting for the negative balance that existed on the date of service.
14.

Also on January 8, 2015, Defendant produced statements for a bank account ending

in 3400 (the “3400 account”).
15.

On September 24, 2014, the date that Defendant was served with the citation, the

3400 account had a balance of $152.09. True and correct copies of the 3400 account statements
are attached as Exhibit 6.
16.

Since September 24, 2014, the following deposits have been made into the 3400

account:
a.

October 9, 2014 - $1,500.00

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b.

October 15, 2014 - $2,000.00

c.

October 20, 2014 - $37.57

d.

November 4, 2014 - $198.00

e.

November 10, 2014 - $200.00

f.

November 10, 2014 – $22.61

g.

November 12, 2014 - $550.00

h.

November 12, 2014 - $500.00

i.

November 17, 2014 - $2,000.00

j.

December 8, 2014 - $180.00

k.

December 17, 2014 - $700.00

l.

January 2, 2015 - $249.09

17.

The total deposits into the 3400 account since service of the citation is $8,289.36,

including the beginning balance on the date of service of the citation.
18.

The service of the citation operated as a lien on all personal property belonging to

Defendant on September 24, 2014 and upon all property thereafter acquired.
19.

The total amount of money deposited into both accounts during the citation was

$32,433.07.
20.

The balances of both accounts have been substantially depleted.

21.

Defendant has willfully and deliberately violated the provisions of the citation lien

in that he continued to transfer funds out of both accounts in direct violation of the citation
provisions and court orders in this case.
22.

Plaintiff acknowledges that Defendant has a wildcard exemption of $4,000.00,

which he was freely entitled to spend even during the course of the citation.

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23.

By this motion, plaintiff seeks the turnover of $28,433.07, which represents the

amount of funds transferred in violation of the citation lien and restraining provisions, less
Defendant’s wildcard exemption.
24.

Plaintiff requests that Defendant be held in contempt of court for his repeated

violations of the citation lien and restraining provisions. Plaintiff requests a jail sentence for
defendant, but that the jail sentence be stayed for a reasonable period of time to allow Defendant
to repay the $28,433.07, which would purge him of the contempt order.
WHEREFORE, plaintiff, ---------------, moves this Court for a finding of contempt against
-------------------------, including a sentence of incarceration, but which stays enforcement of the
sentence for a reasonable time to allow him to pay to plaintiff an amount equal the amount of
money transferred out of the bank accounts in violation of the citation lien, less his wildcard
exemption, or $28,433.07, and for any other and further relief this Honorable Court deems just and
reasonable.

DREYER, FOOTE, STREIT,
FURGASON & SLOCUM, P.A.

By:
Attorneys for Plaintiff

Michael W. Huseman
DREYER, FOOTE, STREIT,
FURGASON & SLOCUM, P.A.
1999 West Downer Place
Aurora, IL 60506
(630) 897-8764 Tel
(630) 897-1735 Fax
mhuseman@dreyerfoote.com

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