The Self Help Legal Center
Southern Illinois University School Of Law
Carbondale, IL 62901
(618) 453-3217
Updated
September, 2006
TABLE OF CONTENTS
Table of Contents
2
Disclaimer
3
Warning to all readers
4
How to use this self help packet
5
Who these people are
6
Other options you may have
7
Other publications on collecting money judgments
8
What these legal terms mean
9-10
Summary of the law in this area
11
Can you file your collection action in Illinois?
12
A debtor’s exemption rights
13-14
How to get a payment order in Illinois
15-19
How to enforce a payment order in Illinois
20
Your options after the hearing
24
Q & A about filing documents
25
Myths
26
27
Disclaimer — Please read
This packet of information was prepared to answer general questions and
give general advice about the law in Illinois. This packet may or may not
also include forms that you can use. When reading this packet or using
the forms, keep in mind that the advice, information, and forms were
created to assist readers with general issues, not specific situations, and
as such does not replace the advice or representation of an attorney
licensed to practice in the State of Illinois. Because of this and because
of unanticipated changes in the law, the School of Law at Southern
Illinois University and the person, institution, or agency who gave you this
packet make no claim as to whether the use of this packet will acheive
the result you desire and disclaim any responsibility for the consequences
of any form prepared or action taken in reliance upon the information in
this packet. If you are concerned or do not understand whether this
packet will be of assistance to you or will apply to your specific situation,
you should talk to an attorney who is licensed to practice in the State of
Illinois. If you have any questions about this disclaimer,
Look for these symbols to tell you when to:
STOP!
You need legal
representation or
advice to continue.
CHECK IT OUT!
This issue is
discussed in
another packet.
USE CAUTION!
This is very
important so pay
attention.
GO!
You can proceed
to the next step.
4
Warning to all readers
Before you proceed
with using this packet,
you should ask yourself
the following questions:
1. Have I tried to consult a private
attorney?
No self-help publication, packet, or form
can replace the advice and experience of a
licensed attorney. An attorney may not
cost as much as you think, especially if you
just need to ask questions. Before you
proceed on your own, call several local
attorneys, compare prices, and find out
whether you can pay an attorney or not.
2. If I cannot afford an attorney,
have I tried to find a free source of
legal assistance?
There are several agencies which provide
legal assistance for free to certain groups
of individuals. Some of these agencies are
listed to the right. While they may not be
able to help you with a particular problem,
it does not hurt to call them to find out
before you proceed on your own.
3. Is this something that I can do
on my own?
If you have trouble following directions,
or have difficulty reading, writing, or
speaking in public, you may not be able to
follow the directions and advice in this
packet. If this is the case, find a friend
or someone who can help you before you
proceed on your own.
Land Of Lincoln Legal Assistance
Serves the 65 southernmost counties
in Illinois
Toll Free: 877-342-7891
For additional information, you may
visit their website at:
Http://www.lollaf.org
Prairie State Legal Services
Serves most of northern and north
central Illinois outside of Cook
County
815-965-2134
800-0617
Coordinated Advice and Referral
Program for Legal Services
serving Cook County
312-738-9
200
Will County Legal Assistance
Serving Will County
815-727-5123
5
It is very important that you read each section of this packet
completely before you take any action in regard to a legal problem
including using any forms that supplement this packet.
Because this packet discusses terms and actions you are likely not familiar with,
you will need to refer back to the following sections from time to time when
reading this packet:
People you should know
This section describes people that you may come into contact with in regard to a particular legal problem. It is important that you understand who these people are and what they do and don’t do.
What these legal terms mean
This section defines commonly used legal terms in words that you can understand. To use the rest of this packet and any supplemental forms, you need to understand exactly what these terms mean.
Summary of the law in this area
This section contains summaries of important areas of the law that you need to know.
How to file a document in a court file
This section answers commonly asked questions about filing documents.Myths and Tips
These two sections discuss commonly held misbeliefs about the law and steps that you should take (or not take) that could make your task easier.
6
Who these people are
Judge:
The judge is the person who presides over the courtroom. In most cases, the judge makes all of the final decisions and approves all agreements. When a judge makes a decision or a finding, it has the force of law. The judge also sets and enforces court rules (like dress codes) and in some courthouses, the judge decides when cases are scheduled.
Circuit Clerk:
The Circuit Clerk is responsible for creating, managing, and updating court files. When you want to put something in a court file, see a court file, or make a copy of something in a court file, you talk to the Circuit Clerk’s staff. In some courthouses, the Circuit Clerk also decides when cases are scheduled.
Sheriff:
The Sheriff’s main duty is to keep the peace and to enforce the law. His/ her role in the legal system, however, is usually to “serve” (give notice) to people that they are being sued. The sheriff does this by giving the person a notice called a “summons” . The sheriff also enforces the judge’s orders.
Attorney:
An attorney is someone who can help you with your legal problem by providing you with advice about the law, the legal system, and the merits of your case. An attorney can act as your advocate and can represent you in court and in negotiation settlements.
Mediator:
A mediator is someone who can meet with you and the person with whom you have a dispute and help you both come to a resolution you can both agree on. A mediator is not a judge and does not make decisions, but rather helps you make a decision. In some counties, mediation is offered in certain types of cases.
7
Other options you may have
Mediation
In some cases, you may be able to work out an agreement with
the person that owes you money as to how they will pay you. A
mediator is someone who can meet with you and the person with
whom you are having a dispute and help you both come to a
resolution you can both agree on. A mediator is not a judge and
does not make decisions, but rather helps you and the other
party make a decision. In some counties, mediation is offered in
certain types of cases.
Private collection agency
For a fee or for a percentage of what they will collect, a private collection agency can
collect your debt for you. Keep in mind, however, that like an individual, a private
collection agency must follow the same laws and rules that you must follow when collecting
debts. As such, if a person does not have the financial ability to pay a debt that they owe
you and if his/her income and or assets are exempt, hiring a collection agency won’t do you
8
Other publications on collecting money
Disclaimer:
Please
Read
!!
The following is a list of publications which discuss the issues
of collecting money (often referred to as creditor’s rights).
Some of these publications are specific to Illinois and others
are more general in nature. Because of this and because of
unanticipated changes in the law, the School of Law at
Southern Illinois University and the person, institution, or agency who gave you this
packet make no claim as to the accuracy of the content of these publications including
whether they will acheive the result you desire. The School of Law at Southern
Illinois University and the person, institution, or agency who gave you this packet
disclaim any responsibility for the consequences of any action taken in reliance upon
the information in these publications. If you are concerned or do not understand
whether a particular publication will be of assistance to you or will apply to your
specific situation, you should talk to the publication’s publisher or an attorney who is
licensed to practice in the State of Illinois. If you have any questions about this
disclaimer, call the Self Help Legal Center.
9
affidavit
A sworn statement by a person. Lying in an affidavit can result in a charge of perjury which could mean a fine, imprisonment, or both.
answer or response
The written response to a complaint or a petition that is filed by the defendant (the person being sued) in a lawsuit. In small claims court, you are not required to file an answer as long as you show up to the first scheduled hearing on the plaintiff’s complaint.
circuit
The judicial system in Illinois is divided into circuits. Each circuit defines a geographic area in Illinois.
contempt
When a person fails to follow a court order which directs him/her to do (or not to do) something, he/ she can be held in contempt of court. Being held in contempt can lead to time in jail, a fine, or both.
exemption rights
In Illinois, certain property (including cash, income, personal property, and a portion of your car and home) cannot be taken from you to pay a debt. This property is called exempt property. If a judgment is entered against you in Illinois, you have the right to claim this property as exempt and not use it to pay a debt against you. For a discussion of your rights as a debtor, see Packet #1 of the Financial Matters Series.
debtor
A person who owes money.
defendant
A person who is sued.
hearing (trial)
An opportunity for both parties to tell the judge or jury their side of a dispute. Some hearings are court ordered so missing them can result in being held in contempt of court. For hearings which are not court ordered, failure to appear can result in the other side getting what they want in relief.
judgment
A final decision or order of the court.
10
jurisdiction
Whether the court in a particular state has the power to hear a case or to order someone to do something depends upon whether it has “jurisdiction” . Jurisdiction can be either over a person or over a thing For a state court to have jurisdiction over a person, generally, the person must either reside in
the state or have committed an act in the state that gave rise to the case.
motion
A written or oral request to the judge after a lawsuit has been started (see petition).
notary public
A person who verifies that a signature on a document is made by the person whose signature appears. The notary public does not verify the content of the document itself.
petition or complaint
A written request to the court. A petition usually starts a lawsuit and contains the facts that one person alleges has happened along with the relief that they are requesting from the court.
plaintiff or petitioner
The person who starts a lawsuit.
pro-se
A person who is not represented by an attorney and is involved as a party in a lawsuit.
serve or service
The process where a person is officially notified of a pending lawsuit.
statute
The law that the state legislature or federal government enacted on a particular subject.
11
The procedures for enforcing a money judgement in Illinois are
discussed in many different sections of the law, depending upon
which option you choose.
The Citation to Discover Assets procedure is discussed in
Chapter 735, Act 5, Section 2-1402 of the Illinois Compiled
Statutes and in Rule 277 of the Supreme Court Rules.
A debtor’s exemption rights are discussed in Chapter 735, Act
5, Section 12-1001 of the Illinois Complied Statutes
What a judge can do to enforce a money judgment:
The judge has the power to order a debtor to make payments on a money judgment either in whole or in installments from any non-exempt assets or income that the debtor may have. A judge cannot put a debtor in jail solely because he/she cannot pay a debt nor can he/she fine a debtor for nonpayment of a debt when the debtor has only exempt assets or income. A judge, however, can hold a debtor in contempt if he/she fails to comply with a payment order when he/she has the ability to pay or if he/ she fails to show up to a court ordered hearing like a Citation To Discover Assets hearing.
Debtor’s rights
A debtor has the right to keep certain property and income that cannot be taken from him/her to pay a debt unless the debt is for child support, a criminal fine, taxes, etc. This property and income is called exempt property and income and the debtor’s right to this property and income is called his/her exemption rights. For a discussion of a debtor’s rights, see Packet #1 of the Financial Matters Series. Creditor’s rights
A creditor is entitled to recover 9% interest per year on his/her money judgment.
A creditor has the right to request a hearing to question the debtor about his/her ability to pay a judgment and about the debtor’s income and assets. This hearing is called a Citation To Discover Assets hearing.
If a debtor fails to follow a payment plan ordered by the court, the creditor also has the right to request a hearing for the debtor to appear and explain why he/she should not be held in contempt of court. This hearing is called a Rule To Show Cause hearing.
Failure by a debtor to appear at either a Citation To Discover Assets hearing or a Rule To Show Cause hearing can result in him/her being held in contempt of court.
12
The court must have jurisdiction over you to give you what
you want. Similarly, to order a person to do something —
like pay you money or to show up to a hearing, the court
must have jurisdiction over him/her.
To know if the court has jurisdiction over you or the party you are suing,
you need to know the following rules.
How the court gets jurisdiction over you:
If you are enforcing a judgment for money that was entered in a court in Illinois, the
court will have jurisdiction over you and your case once you file your collection action.
How the court gets jurisdiction over the debtor:
The court can have jurisdiction over the debtor if he/she has
received proper notice of your intent to enforce your money
judgment. To do this, you will need to “serve” him/her. In
enforcement cases, however, you must serve the debtor in
person, you cannot serve him/her by publication. For a discussion
on service inside the State of Illinois, check Packet #1 of the
How to Serve Series. For a discussion on service outside the
State of Illinois, check Packet #3 of the How to Serve Series.
13
A debtor’s exemption rights
Before you file a collection action you should know what money you can’t access/
get at when collecting a money judgment in Illinois
In Illinois, a debtor has certain money and assets which cannot be taken from him/her even by a court order to pay a debt unless that debt is child support, a criminal fine, or for taxes. This money/property is called exempt property. If the person you are trying to collect from has only exempt income and assets, it is probably a waste of your
time and money to take legal action to collect from him/her at this time. If you can,
try to work out an agreement with the debtor and take whatever amount they are offering until his/her financial situation improves.
Income and assets that are exempt in Illinois
Real estate
Up to $15000 of the value of a debtor’s home is exempt. If the debtor is married, the amount is $30000.
Automobiles
The first $2400 of the value of a debtor’s automobile is exempt.
Assets
Up to $4000 worth of any property belonging to the debtor, including money in a bank account, is exempt.
Wages up to $292.50 per week
An employee’s wages in Illinois cannot be garnished to pay a debt (not counting child support) if his/her weekly net salary is $292.50 (45 times the federal mininum wage) or less. Above that, the most that can be garnished from a debtor’s wages in Illinois is 15% of their gross weekly wages.
Tools of the trade
Up to $1500 of a debtor’s professional tools of the trade (books, computers, tools) are exempt.
14
A debtor’s exemption rights — continued
Personal belongings
All of the necessary clothing, family pictures, bibles, and school books of the debtor are exempt.
Government benefits
All of the following government benefits are exempt regardless of their amount: All Illinois Department of Human Services benefits, including, TANF, AFDC, AABD, GA, food stamps; All Social Security benefits, including SSI disability benefits; Veteran’s Administration benefits; worker’s compensation benefits; black lung benefits; unemployment compensation; and crime victim’s awards.
Family support payments
All of the following support payments are exempt to the amount that the debtor reasonably needs them to support him/herself and his/her dependents: alimony, maintenance, child support, life insurance proceeds, pensions, wrongful dealth awards, and up to $15,000 in any personal injury award.
Health aides
15
How to get a payment order in Illinois
STEP 1: MAKE SURE YOU ARE PURSUING THE RIGHT COURSE OF ACTION
If you have a judgment or an order by the court requiring the debtor to be making payments at a certain time and in a certain amount and you want to enforce that order because the debtor is not following it, you will want to request an Order To Show Cause. If this is your situation, you should go to page 20.
If, however, you do not have a court order which requires the debtor to be making payments or if you do not like the payment order you have, then you want to begin the process of getting an order by filing a Citation To Discover Assets. If this is your situation, proceed to step 2.
STEP 2: FIGURE OUT WHERE YOU ARE GOING TO FILE YOUR ENFORCEMENT
ACTION:
The law requires you to file your Citation To Discover Assets in the county where the person you are suing lives or in the county where the judgment was entered. If you are unsure where to file, then file your Citation where the person you are suing lives.
STEP 3: FILL OUT THE FORMS:
Some Circuit Clerk’s offices have their own Citation To Discover Assets and Citation Notice forms that they want you to use. If this is the case in the county in which you filed your action, you should ask whether you must use their forms instead of the forms in this supplement.
In the supplement to this packet you will find 3 forms: a Citation to Discover Assets, a Citation Notice, and the Application to Sue as a Poor Person. Using the guide in the supplement to this packet, you will need to complete these forms.
The Citation to Discover Assets is a notice of a hearing at which the debtor must appear and produce certain information about his/her income and assets. The Citation is also a sworn statement by you that the judgment has not been paid. The Citation states the amount of the judgment, when it was entered by the court, and the case number of the case in which the judgment was entered. You cannot file your Citation without this information.
NOTE: You will not be able to fill out the part as to when the date and time of the hearing is
until you take your Citation form to be filed to the Clerk.
The Citation Notice is a form which tells the debtor the purpose of the hearing as well as informing him/her of his/her exemption rights. The Notice is a very important form and must be sent with the
16
How to get a payment order in Illinois
Citation To Discover Assets form.
The Application to Sue as a Poor Person is your request that the court waive the fees that are required for a person to file a Petition. The amount of these fees varies by county. Typically, only persons of low income will receive a fee waiver, but there is no statutory definition as to what level of income is required for a person to receive a waiver. Consequently, if you think you may be eligible — your best bet is to apply. Denial of a fee waiver will not impact your case except that you will have to pay a fee to file documents with the Clerk.
STEP 4: FILE YOUR DOCUMENTS AND GET YOUR HEARING DATE
If you want to apply for a fee waiver, your first step is to give the Application To Sue as A Poor Person to the Circuit Clerk and ask that it be presented to a judge for his/her approval. Wait (this may take several days) to see if it is approved, and if it is, you can then file your Petition without paying any filing fees.
After your fee waiver is either approved or denied (or if you don’t apply for a waiver) you should file your Citation to Discover Assets and Citation Notice forms. Remember to take the original and 2 copies of these forms with you to the Circuit Clerk’s office (one for yourself and one for the debtor). When filing your Citation, ask the Clerk for a hearing date and time for your Citation To Discover Assets hearing. Using this information, complete the blanks on the Citation To Discover Assets and the
Citation Notice forms.
STEP 5: NOTIFY THE DEBTOR OF THE CITATION HEARING
You will need to serve a copy of the Citation to Discover Assets and the Citation Notice on the debtor. If the debtor lives inside the State of Illinois, use Packets #1 and 2 of the How to Serve series; if the debtor lives outside the State of Illinois, use Packets #3 and 4 of the How to Serve series. If you don’t know where the debtor is or if attempts to serve him/her have been unsuccessful , you cannot proceed with your request for a hearing because you cannot serve someone with a Citation To Discover Assets by publication (discussed in Packet #5 of the How to Serve series).
STEP 6: WAIT TO SEE IF THE DEBTOR IS SERVED
Once you have served the debtor with your Citation, he/she is ordered to appear at the hearing date selected by the Clerk. Even if the debtor was not served, you should show up to your hearing.
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How to get a payment order in Illinois
If the person you are suing has filed a response and it appears from the response that he/ she has an attorney, or if an attorney contacts you at any time before or during the hearing, you should seek legal assistance immediately as it is not a good idea for you to proceed against a person who is represented by an attorney on your own.
STEP 7: GO TO THE HEARING
While there is no way to know exactly what will happen at your hearing. Here are some things you should do:
If the debtor was served and shows up:
You should tell the judge that the judgment has not been paid and how much is unpaid on the judgment. The judge will swear in the debtor then either ask questions his/herself and/or will allow you to ask questions of the debtor as to the debtor’s financial situation including bank accounts, income, assets, etc.
The judge (and you) can also examine any and all documents that the debtor was required by the Citation to bring to the hearing.
After listening to the debtor and examining the documents brought to the hearing, the judge may order that the debtor pay the judgment in full or in installments. If the judge finds that the debtor’s income and assets are exempt, the judge cannot force the debtor to pay the judgment either in full or in installments.
If the judge orders a payment plan be made, you should present the Order For Payment form to the judge for his/her approval. If the Judge wants corrections made, don’t panic, you can ask for permission to submit a corrected version by mail.
If the debtor was served but does not show up:
You should request that the court order a body attachment and have the debtor arrested and brought to the court to appear at a future hearing. If the judge does this, you will then have to call the Clerk from time to time to see if/when the debtor was arrested and if the judge has set a hearing.
If the debtor was not served or was not served at least 5 days before the hearing date:
18
How to get a payment order in Illinois
If you or the debtor asks that the hearing be postponed:
You or the debtor may ask for the hearing to be postponed (continued) to a later date to either give you time to work out an agreement, talk to a lawyer, or to get more information. Regardless of who asks for the continuance, you should know that your Citation expires after 6 months unless it is extended by the court. Consequently, you should not continue your hearing for more than 6 months.
STEP 8: WRAP IT UP
If the Judge has signed a new Order for Payment, you will need to file your new Order with the Clerk and send a file-stamped copy of it to the other party.
To certify (prove) that you have done this, you will need to file a Certificate of Mailing with the Clerk. As with all documents you file, be sure to keep file stamped copies of these documents for yourself. Remember to hold on to your Order as it is your proof that you are entitled to payment. If you lose your Order, however, don’t panic. As with any document you file, you can always get another copy from the Circuit Clerk. You may, however, have to pay for the copies.
Q: When can I request another Citation To Discover Assets hearing?
If you are continuing a prior Citation hearing (see above) the one hearing could go on indefinitely. Once that hearing expires, however, —which it will in 6 months unless it is extended — you cannot ask for another Citation To Discover Assets hearing unless you swear in an affidavit that:
a) you believe that the debtor has the financial ability to pay towards the judgment; b) you have new information since the last Citation which causes you to believe this; and c) that you are not asking for another hearing simply to harass the debtor.
Q: How long does my judgment or order for payment last?
In most cases, your judgment or order for payment will last for 20 years before it needs to be renewed.
Q: What if my request for a hearing or for payment is denied?
If your request for a hearing or for payment was denied because you did not have enough evidence to support your request, then you will have to wait until the circumstances surrounding your request change before you can file another Citation. The reason for this is because once the court makes a decision about an incident or an event, it cannot address that same incident or event again. If your request was denied for a procedural reason (like failure to get proper service), then you should correct the error and request another hearing.
19
How to get a payment order in Illinois
Finally, whenever you lose in court, you have the right to request the court to reconsider its decision and you have the right to appeal the decision to a higher court. Please note that in most cases you have 30 days or less from the date of the judge’s decision to exercise these rights or you may lose your right to reconsideration or appeal. You should seek the assistance of an attorney to exercise these rights.
20
How to enforce a payment order in Illinois
Step One: Make sure you are pursuing the right course of action
If you have a judgment or order by the court requiring the debtor to be making payments at a certain time and in a certain amount and you want to enforce that order because the debtor is not following it, you will want to request an Order To Show Cause. If this is your situation, you should proceed to Step 2.
If, however, you do not have a court order which requires the debtor to be making payments or if you do not like the payment order you have, then you want to begin the process of getting an order by filing a Citation To Discover Assets. If this is your situation, go to PAGE 15.
Step Two: Prepare the necessary forms to start the process.
In the supplement to this packet you will find 4 forms: an Affidavit, a Petition For Order To Show Cause, an Order To Show Cause, and the Application to Sue as a Poor Person. Using the guide in the supplement to this packet, you will need to complete these forms.
The Affidavit In Support of Petition For Order To Show Cause is a sworn statement by you that the debtor has not complied with the payment order issued by the court. The Affidavit also states that you swear that the debtor has the financial ability to pay the debt that is owed. You cannot file your Petition without the supporting Affidavit.
The Petition is your formal written request to the court for a hearing on why the debtor has not paid the payments he/she was ordered to pay. It also serves as a notice to the debtor as to your position on these issues so he/she can respond . The Petition is a very important form and needs to be completed carefully. If you do not request something in your Petition, the court cannot grant it to you. You must attach a copy of the payment order you are attempting to enforce to your Petition. If you do not have a copy of the payment order you are attempting to enforce, you can get one from the Circuit Clerk’s office.
The Application is your request that the court waive the fees that are required for a person to file a Petition. The amount of these fees varies by county. Typically, only persons of low income will receive a fee waiver, but there is no statutory definition as to what level of income is required for a person to receive a waiver. Consequently, if you think you may be eligible — your best bet is to apply. Denial of a fee waiver will not impact your case except that you will have to pay a fee to file documents with the Clerk.
The Order to Show Cause form is the order the Judge signs informing the debtor that the court has granted your request for a hearing and orders the debtor to attend to explain why it is that he/she has not complied with the support order.
21
How to enforce a payment order in Illinois
Step Three: File your Affidavit and Petition and get your Order signed
You should file your Affidavit and Petition in the county where the original payment order was entered. If you do not apply for a waiver of the filing fee — see below — you will have to pay to file your Petition.
If you want to apply for a fee waiver, your first step is to give the Application To Sue as A Poor Person to the Circuit Clerk and ask that it be presented to a judge for his/her approval. Wait (this may take several days) to see if it is approved, and if it is, you can then file your Petition without paying any filing fees.
After your fee waiver is either approved or denied (or if you don’t apply for a waiver) you should file your Petition for Order to Show Cause. Remember to take the original and 2 copies of the Petition with you to the Circuit Clerk’s office (one for yourself and one for the debtor. When filing your Petition, ask the Clerk to present the Petition and Order to a judge for his/her approval. Give the Clerk a self addressed stamped envelope to return the Order to you if it is approved.
Step Four: Notify the debtor of the Order to show up and explain
You will need to serve a copy of the Petition, Affidavit, and Order on the debtor. If the debtor lives inside the State of Illinois, use Packets #1 and 2 of the How to Serve series; if the debtor lives outside the State of Illinois, use Packets # 3 and 4 of the How to Serve series. If you don’t know where the debtor is or if attempts to serve him/her have been unsuccessful , you cannot proceed with your request for a hearing because you cannot serve someone with an Order To Show Cause by publication (discussed in Packet #5 of the How to Serve series).
Step Five: Wait and see if the debtor is served
Once you have served the debtor with your Petition and Order, he/she is ordered to appear at the hearing date selected by the Court. Even if the debtor was not served, you should show up to your hearing.
If the person you are suing has filed a response and it appears from the response that he/ she has an attorney, or if an attorney contacts you at any time before or during the hearing, you should seek legal assistance immediately as it is not a good idea for you to proceed against a person who is represented by an attorney on your own.
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How to enforce a payment order in Illinois
Step Six: Go to the hearing:
While there is no way to know exactly what will happen at your hearing. Here are some things you should do:
If the debtor was served and shows up:
You should tell the judge that the debtor has not been paying the payments he/she was ordered to pay. You should tell the judge how far behind the payments are. The judge will then listen to the debtor to find out why the payments were not paid and will make a decision.
The judge will decide whether the debtor is behind in payments and if so, by how much. If the judge finds that the debtor is behind, the judge will then decide how the overdue amount will be paid. Unless the debtor has the money, the judge will not order that it be paid all at once. Normally, the debtor will have to make an extra payment each month in addition to the regular payment until the overdue amount is paid.
If the judge orders a change in the payment order or orders that the debtor pay an extra amount to pay off past missed payments, you should present the Order Modifying Payment Plan form in the supplement to this packet to the judge for his/her approval. If the Judge wants corrections made, don’t panic, you can ask for permission to submit a corrected version by mail.
Keep in mind that if the debtor has only exempt income or assets, the judge cannot order him/her to make payments on the debt regardless of how far behind he/she may be with his/her payments. If the debtor was served but does not show up:
You should request that the court order a body attachment and have the debtor arrested and brought to the court to appear at a future hearing. If the judge does this, you will then have to call the Clerk from time to time to see if/when the debtor was arrested and if the judge has set a hearing.
If the debtor was not served or was not served until after the hearing date listed on the Order: You will have to prepare another Order To Show Cause and repeat Steps 3-5.
Step Seven: Wrap it up:
If the Judge has signed a Order Modifying Payment Plan, you will need to file your new Order with the Clerk and send a file-stamped copy of it to the other party.
To certify (prove) that you have done this, you will need to file a Certificate of Mailing with the Clerk. As with all documents you file, be sure to keep file stamped copies of these documents for yourself. Remember to hold on to your Order as it is your proof that you are entitled to payment. If
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How to enforce a payment order in Illinois
you lose your Order, however, don’t panic. As with any document you file, you can always get another copy from the Circuit Clerk. You may, however, have to pay for the copies.
Q: How long does my judgment or order for payment last?
In most cases, your judgment or order for payment will last for 20 years before it needs to be renewed.
Q: What if my request is denied?
If your request for a hearing or for payment was denied because you did not have enough evidence to support your request, then you will have to wait until the circumstances surrounding your request change before you can file another Petition. The reason for this is because once the court makes a decision about an incident or an event, it cannot address that same incident or event again.
If your request was denied because of some procedural error on your part (for example, you did not get proper service), then you should correct the error and request another hearing.
Finally, whenever you lose in court, you have the right to request the court to reconsider its decision and you have the right to appeal the decision to a higher court. Please note that in most cases you have 30 days or less from the date of the judge’s decision to exercise these rights or you may lose your right to reconsideration or appeal. You should seek the assistance of an attorney to exercise these rights.
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Your options after the hearing
Q: What happens if after the hearing, I am still not being paid?
A: If after the Rule To Show Cause hearing or the Citation To Discover Assets hearing, the debtor refuses to pay you despite having the financial ability to do so, you will probably need to take one of the following steps. Most of these steps are complicated, will cost you money, and can even get you into further financial or legal trouble if they are done
incorrectly. As such, these steps are not discussed in this packet. If you want to take one of these steps, you should seek the assistance of an attorney.
Putting a lien on the debtor’s personal property
If the debtor owns non-exempt personal assets, you can place a lien on his/ her property. Placing a lien on the property entitles you to be paid from the sale proceeds if the property is sold and only after the exempt amount is given to the owner and any secured creditors are paid.
Putting a lien on real estate
If the debtor owns real estate, you can place a lien on the property. Placing a lien on the property entitles you to be paid from the sale proceeds if the property is sold and only after the exempt amount is given to the owner and any secured creditors are paid.
sheriff’s sale
If you can afford to pay the sheriff a bond equal to twice the amount of the judgment you are trying collect, plus a fee for service, you can ask the sheriff to seize, hold, and sell non-exempt assets. You would collect your judgment from the sale of these assets. Keep in mind that most sheriffs will require you to also pay for an indemnifying bond which insures that if the sheriff is sued over either the taking of the property or the sale, that you will pay for the sheriff’s costs and legal fees.
wage garnishment
If the debtor is employed and his/her net income is more than $292.50 per week, you can ask the court to garnish his/her wages to pay towards the judgment.
non-wage garnishment
If the debtor has more than $4000 in a bank account, you can ask the court to order that any amount above the $4000 be given to you to pay towards your judgment.
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Q&A about filing documents
Q: What is a court file?
A:
The file is the way that the courthouse keeps track of a
lawsuit.
The file includes all of the documents that were filed,
notices of hearings, notes by the judge and clerk, and
letters to and from the judge and clerk.
Q: When do you need to file a document in a court file?
A:
Generally, you will file a document when you want to (1) have evidence that a task
was completed, (2) record an event or a statement, or (3) give notice to someone
about something.
Q: What does it mean to file a document in a court file?
A:
Generally, filing a document means giving the Circuit Clerk a copy of a document so
that he/she can place it in the court file you want it to go in. When the Clerk files the
document, he/she will stamp it with a stamp that says the date (and sometimes the
time) the document was filed.
Q: Does filing a document make it legal?
A:
No. The Clerk will not check to make sure that your document is in compliance with
the law. Most of the time you can file anything you want as long as you are willing to
pay for the filing costs. It does not mean, however, that what you have filed is
correct.
Q: Why is filing so important?
A:
Most of the time, filing is the primary way to show that you have met the deadline
for something — either to initiate a lawsuit or to notify someone of a lawsuit or a
hearing. Filing is also the way that you notify the court of your answer (response) to
lawsuit started against you.
Please note that failure to file something on time can cause you to lose your
right to proceed with your claim or you may be forced to start over.
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Myths
5 Commonly held beliefs about collecting
money judgments which are not true:
The debtor has to pay me something
Not necessarily. If the debtor has only exempt assets and income, the court cannot force him/her to pay you anything (even a penny) on the judgment. Your only recourse in this scenario is to get what little money
you can until the debtor’s financial situation improves.
The judge/circuit clerk/courthouse personnel will help me collect my money
No, they will not. Courthouse personnel are there to make sure that cases are decided and that the law as well as courthouse procedure and rules are followed. Enforcing your judgment is your responsibility,
not the court’s.
A verbal agreement to pay is as good as a written order
No, it is not. While a verbal agreement to pay is OK, it is better to get any agreement to pay in writing as verbal agreements are more difficult to prove, if not enforce.
I need an attorney to collect my money
Not necessarily. As a layperson there are certain procedures that you can take to try to collect your money. Those procedures are discussed in this packet. Other more complex procedures — like filing liens or garnishing wages — are also at your disposal but you need the assistance of an attorney to use them.
The laws are written to protect debtors not creditors
While there are laws which protect debtors — like exemption laws — the law does afford you numerous ways to protect your rights by enforcing your money judgment. Two of the methods the law affords you are discussed in this packet. Other methods (discussed on page 17) are also discussed but you should seek the assistance of an attorney before using them.
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Tips
Try to get agreement
where you can
While it is not required, if you can get agreement with the other party on any part of your dispute it will make the process easier. In fact, it may improve your chances of getting the money you are owed
especially if the person you are suing has exempt assets or income.
Don’t waste your time and money if the debtor’s income/assets are exempt
As explained on pages 13-14, if the debtor has only exempt assets and income, it doesn’t make much sense for you to spend any more of your time and money taking him/her back to court when the court cannot force the debtor to make payments to you. Your only option in this scenario is to wait
until the debtor’s financial situation improves.
Keep up on the debtor’s financial situation and whereabouts
Unless you file a Citation to Discover Assets (described in this packet), the debtor has no obligation to inform you of his/her employment, salary, assets or even his/her residence. It is your responsibility and in your best interests, therefore, to keep up on the debtor’s financial situation
and place of residence.
Get help if you need it
If you have trouble following directions, doing things on time, filling out forms, or keeping track of paperwork, enforcing a money judgment may be much more stressful than it needs to be. If, however, you have a friend you can help you do these things, the job will be a lot easier. Keep in mind, however, that a friend cannot take the place of the advice and experience of an attorney licensed to practice in the State of Illinois. Consequently, if you need legal advice or if representing yourself proves to be too difficult a task for you, talk to an attorney.
