Page 7 - John Hundley 2015

Litigation Law Roundup

Sharp Thinking

No. 128 Perspectives on Developments in the Law from Sharp-Hundley Law Firm, P.C. March 2015

Rule 277(f) Provides Affirmative Defense In Citation Cases

The Illinois Appellate Court has upheld a trial court’s decision allowing a defendant to use the
termination language of Supreme Court Rule 277(f) as an affirmative defense against a judgment
creditor in supplementary proceedings.

In Shipley v. Hoke, 2014 IL App (4th) 130810, the judgment creditor tried to
enforce the restraining provision of its citation, pursuant to 735 ILCS 5/2-
1402(f)(1), to thwart a settlement agreement between the judgment debtor and
a preexisting creditor made after issuance of its citation.
Rule 277(f) provides that supplementary proceedings, outside of a motion,
order of the court, or satisfaction of the judgment, “terminates automatically 6
months from the date of (1) the respondent’s first personal appearance
pursuant to the citation or (2) the respondent’s first personal appearance
pursuant to subsequent process issued to enforce the citation, whichever is sooner.”

In Shipley, the judgment creditor brought an enforcement motion after passage of the six-month
period seeking to attack transfers that occurred during that period. However, the court said it would
not continue enforcement of the provision after the six months expired. It held that “[o]nce
supplementary proceedings have terminated, a party may assert the termination as an affirmative
defense to shield that party from a judgment creditor’s attempt to use section 2-1402 of the Code as a
sword.”

The court understood the “unique ex parte power” a citation provides, and the ability to preserve
creditor’s rights under § 2-1402(f)(1) by requesting extensions. Because the judgment creditor failed
to enforce its judgment with the six-month window, or to obtain an extension, the court enforced the
termination provision.

- Darren Taylor, Darren@sharp-hundley.com, 618-242-0200
“Substantial Compliance” With Rules 11-12 Sufficient

A certificate of service which does not state that the document was placed in an envelope, but
which otherwise complies with Illinois Supreme Court Rules 11 and 12, constitutes substantial
compliance with those rules and is not grounds for vacating action based on that service, a panel of
the Appellate Court in Chicago has ruled.

In CitiMortgage, Inc. v. Lewis, 2014 IL App (1st) 131272, defendant argued a mortgage
foreclosure sale should be set aside because she did not receive notice of that sale. The court held
that proof of receipt of that notice was not required, only proof that it was served in a manner set forth
in those rules. Dealing with an argument that plaintiff’s proof of service did not expressly state that

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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.