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Litigation Law Roundup

Sharp Thinking

No. 163 Perspectives on Developments in the Law from Sharp-Hundley, P.C. January 2019
Court Has No Discretion On Wage Withholding

The wage deduction provisions of the Illinois Code of Civil Procedure leave a circuit court with no
discretion to deny a request for a wage deduction order on grounds of extreme hardship, a panel of
the Appellate Court in Chicago held recently.
Ruling in National Collegiate Loan Trust 2004-1 v. Ogunbiyi, 2018 IL App (1st) 170861, the panel
also implicitly held that the terms of the current Wage Deduction Statute (735 ILCS 5/12-801 et seq.)
prevent a court from reducing the withholding amount to some compromise amount.
In Ogundiyi, a trial court had ruled in favor of a hardship appeal by the employee and dismissed
the employer from the proceedings. It ordered the employee to pay the plaintiff $100 per month
directly, significantly below the $172.01 per week to which the plaintiff claimed it was entitled under
the withholding statute.

Noting that the statute had been amended to delete the word “maximum” from the description of
the withholding authorized thereunder, and that the legislative record demonstrated that the purpose
of the amendment was to remove judicial discretion, the appellate panel unanimously reversed the
trial judge.
The decision did not indicate whether its holding would apply to courts hearing wage withholding
requests asserted via citations to discover assets instead of by wage garnishments. When the Hon.
Glynn Elliott of the Circuit Court of Cook County urged the development of wage citation practice
many years ago, one of the perceived advantages was that he thought the citation statute (735 ILCS
5/2-1402) gave him more flexibility in setting withholding levels. However, the citation statute
currently provides that the court may “enter any order upon or judgment against the person cited that
could be entered in any garnishment proceeding,” which would seem to say that the Ogunbiyi ruling is
incorporated into wage citation practice.

Proportionality Not Controlling For Fee Award

The proportionality of the attorney’s fee to the benefits secured is a factor that may be considered
in awarding fees under a fee-shifting contract, but it may not be the only factor, the Appellate Court in
the Second District has ruled.
Ruling in Crystal Lake L.P. v. Baird & Warner Res. Sales, Inc., 2018 IL App (2d) 170714, the
appellate panel dealt with a trial court award of only $70,000 out of more than $500,000 of fees that
had been incurred by a landlord.
The panel held that a court considering such a fee request should consider (1) the skill and
standing of the attorney employed, (2) the nature of the case, (3) the novelty and difficulty of the
issues, (4) the amount and importance of the subject matter of the suit, (5) the degree of responsi-

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Sharp Thinking is an occasional newsletter of Sharp-Hundley, 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-Hundley lawyer at 618-242-0200 or one of the addresses provided on page 2 of this newsletter.