Once you have won your case, received a judgment, and all of the post-trial motions are completed, the question becomes “how do I get my money?”
In general, there is a misconception that once you win the lawsuit, the judge leans over the bench and hands you a check for the amount of money you’ve won. Unfortunately, it does not work that way.
If you have a judgment against a defendant and he is either unwilling or unable to pay, you are then entering into post-judgment proceedings. This can be a confusing and difficult process for those who are not familiar with the post-judgment litigation process. Here is a brief and very basic outline for what you can expect:
1. The plaintiff, who has judgment against the defendant, serves what is called a citation to discover assets. This is a request of the defendant to provide information and documentation under oath as to the type and location of assets that can be used to pay the judgment.*
Note: There are various exceptions to assets that can be used to pay judgments for both individuals and corporations. For example, personal judgements cannot be collected from retirement accounts, disability payments, social security payments or any other monies that are used for a debtor’s benefit but are owned and controlled by a third party. There are also exceptions for homestead rights, real property, tools of trades, certain books, and certain personal property.
2. Once a defendant has been served with a citation, they must appear in court. The witness is placed under oath and is asked a series of questions. He then reviews all documentation regarding any assets that can be used to pay debt, including tax returns, insurance documents, and bank statements.
If there are any assets that are discovered, for example money in a checking account, then a third party citation is issued to the bank or the person holding the money. A request is made of the court for a turnover order directing that third party to turn over any assets that can be used to pay the debt.
3. Where the most litigation is involved is where the defendant is served with a citation, but does not appear in court. In Illinois, you cannot be sent to jail for not paying your debt. However, you can be sent to jail for not coming to court and telling the parties that you don’t have any assets to pay the debt. This is called a body attachment. The court will issue a body attachment if you have been served with a citation and fail to show cause why you should not be held responsible for failing to appear with the citation to discover assets.
I have had many cases where the sheriff’s deputy has called me to tell me that the debtor is sitting in jail and request that I come to court so that the debtor can explain to the court why he ignored the citation request that I sent.
*In Illinois, judgments earn a statutory 9% interest per year. This can often result in difficulty in paying off the judgment. In this case, the wage garnishment process is usually favored over the citation process. This is a judicial procedure in which a percentage of the net paycheck earned by the debtor can be deducted and directed to the judgment creditor to pay off the debt. Usually, the total amount of the payroll deductions are maxed at 15%. However, the obvious problem is that if your wages are garnished at 15%, and the judgment earns interest at 9%, it will be a very long time before the judgment is paid off. While this and other processes exist to attach judgments to assets for payment, the citation process is the one that is the most commonly used method for finding monies or property that can be used to pay the debt.
In summary, whether I am representing a creditor or debtor, it is in the interest of the parties to communicate to see if there is a way to work out a settlement either in the form of a lump sum or payment plan in order to avoid both the traditional citation process and the wage garnishment process.