Page 5 - John Hundley 2017

Litigation Law Roundup

Sharp Thinking

No. 142 Perspectives on Developments in the Law from Sharp-Hundley Law Firm, P.C. February 2017

Door Opens For Condoning Respondents’

Snubbing Of Citations To Discover Assets

By John T. Hundley, john@sharp-hundley.com, 618-242-0200
The Appellate Court in Chicago last month issued an opinion that sets the stage for widespread
condoning of supplementary proceeding respondents’ ignoring of supplementary proceedings papers.
Ruling in R&J Const. Supply Co. v. Adamsuk, 2017 IL App (1st) 160778, a panel of that court allowed
vacation under 735 ILCS 5/2-1401 of a final citation judgment granted after the respondent ignored both
the original citation to discover assets and a summons to confirm the
conditional judgment.
Among other things, the court said a § 2-1401 petition “invokes the
equitable powers of the court, which should prevent the enforcement of a
judgment when it would be unfair, unjust, or unconscionable.” It said that
“equitable powers may require that a judgment be set aside even in the
absence of due diligence by a party seeking section 2-1401 relief.”
In Adamsuk, the citation respondent said it ignored the citation and the
summons to confirm because it did not know and had no relation with the
judgment debtor. The correctness of that contention seems to have colored
the court’s judgment. But given the clarity with which a citation warns the
respondent of the consequences of ignoring it, it seems difficult to argue that
equity should save the respondent from the effects of his own actions. Hundley
The court relied upon other grounds as well, but these too are dubious. It said that “[b]efore a
judgment creditor may proceed against a third party who is not the judgment debtor,
the record must contain some evidence that the third party possesses assets of the
judgment debtor.” Whatever the correctness of that language where the respondent
appears, denies holding assets and makes the proceeding contested, it ignores the
extremely low barrier which the Supreme Court has established for issuance of a
citation. See Supreme Court Rule 277 (“The proceeding may be against . . . any
third party the judgment creditor believes has property of or is indebted to the
judgment debtor. . . . The clerk shall issue a citation upon oral request”) (emphasis
added). And the opinion offers no rationale for why lower courts are empowered to
disregard what the Supreme Court has written.

Finally, the panel relied upon the fact that the citation papers mistakenly listed the respondent’s name
in locations where the judgment debtor’s name should have appeared. This made the citation “defective

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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.