Page 47 - Sharp-Hundley 2012

New Developments Update

Sharp Thinking

No. 79 Perspectives on Developments in the Law from The Sharp Law Firm, P.C. December 2012

Illinois Statute on Citations to Discover Assets Is Amended

Illinois’ statute on citations to discover assets (see Sharp Thinking No. 1 (Nov. 2007), No. 68 (July
2012)) has been significantly amended.

Citations now are required to include therewith an Income and Asset Form, set forth in the
revised statute, so that debtors can make thereon disclosures typically required in such
supplementary proceedings. P.A. 97-0848.

In addition, P.A. 97-0848 reforms the “body attachment” process which sometimes is applied
when a judgment debtor fails to appear in response to a citation. First, the revised statute requires
that citations to judgment debtors who are individuals be served by personal or abode service.
Second, the revised statute prohibits entry of a payment order unless the Income and Asset Form has
been served and the debtor has been given an opportunity to assert his exemptions. Third, the
statute now prohibits use of body attachments until after the debtor has been served with an order
that he appear and show cause why he should not be held in contempt for failing to appear in
response to the citation. The order shall have a one-year life, and on first issuance shall be in the
nature of a recognizance bond for no more than $1,000.

Most of the revised terms do not apply to citations issued to enforce ordinance violations.

Violation of Collection Agency Act Justifies Vacation of Judgment

Failure of a series of assignments for collection to comply with the Collection Agency Act (225
ILCS 425) (see Sharp Thinking No. 65 (June 2012)) created a “meritorious defense” justifying
vacation of a judgment under 735 ILCS 5/2-1401, an Appellate Court panel has ruled.

Ruling in Cavalry Portfolio Serv. v. Rocha, 2012 IL App (1st) 111690, the panel rejected an
argument that the defendant forfeited his challenge to the plaintiff’s standing by failing to make it
before judgment was entered (see Sharp Thinking No. 69 (Aug. 2012)).

No Mistaken Identity, Res Judicata Applies, Court Says

Interpreting Capital One Bank, N.A. v. Czekala, 379 Ill.App.3d 737 (2008) (see Sharp Thinking
No. 8 (May 2008)), the Appellate Court for the Fifth District recently rejected an argument that an
earlier suit really was against the plaintiff’s similarly-named father and that attempts to enforce the
resultant judgment against the son violated the Consumer Fraud & Deceptive Business Practices Act
(815 ILCS 505) (“CFDBPA”).

Ruling in Kosydor v. American Express Centurion Serv. Corp., 2012 IL App (5th) 120110, the
court found that there were no indications American Express intended to sue the father, that the
similarly-named son was in fact the party served with process, and that hence the doctrine of
mistaken identity did not apply. Accordingly, the court ruled that under the doctrine of res judicata,

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Sharp Thinking is an occasional newsletter of The Sharp Law Firm, P.C. addressing developments in the law which may be of interest. Nothing contained in Sharp
Thinking shall be construed to create an attorney-client relation where none previously has existed, nor with respect to any particular matter. The perspectives herein
constitute educational material on general legal topics and are not legal advice applicable to any particular situation. To establish an attorney-client relation or to obtain legal
advice on your particular situation, contact a Sharp lawyer at the phone number or one of the addresses provided on page 2 of this newsletter.