New Developments Update
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, the judgment in the earlier suit barred the son’s later attempt to claim that attempts to impose the earlier judgment upon him violated the CFDBPA.
The court also ruled that American Express’ attorneys were exempt from liability because they were representing clients in the practice of law under Cripe v. Leiter, 184 Ill.2d 185 (1998).
Intent to Defraud Not Required for $50,000 CFDBPA Penalty
We previously reported how the CFDBPA does not require either a consumer transaction (Sharp Thinking No. 72 (Nov. 2012) or fraud (Sharp Thinking No. 19 (April 2009)) to support an action thereunder. Now an appellate panel in Chicago has ruled that the plaintiff need not have proven an intent to defraud for the court to impose a $50,000 civil penalty for violations of the CFDBPA.
In People v. Smith, 2012 IL App (1st) 113591, the State had brought an action against a home repair and remodeling firm for repeated violations of the CFDBPA and the Home Repair & Remodeling Act (815 ILCS 513). The defendant admitted acts which violated the CFDBPA, but claimed it lacked the intent required to support the penalties the court entered. The panel said the intent required under that act “is merely the defendant’s intent that the plaintiff in the action rely on the *** information the defendant gave to plaintiff as opposed to any intent to deceive as required under the common law.” While the panel acknowledged that “intent to defraud” is required for imposition of penalties of up to $50,000 per violation (815 ILCS 505/7(b)), it said that that intent was not required to support a single $50,000 penalty.
The court also ruled that intent to defraud was not required to violate the Home Repair & Remodeling Act (see generally Sharp Thinking No. 31 (March 2010) and No. 38 (Oct. 2010)). It also rejected defendant’s challenge to the court’s injunction under the CFDBPA permanently barring him from performing any home repair work in the state.
Enforcement of ‘Morning After’ Rule Violates Conscience Act
An appellate panel has held that enforcement of the successor to the “Plan B” or “morning after” contraception rule violates the Health Care Right of Conscience Act (745 ILCS 70).
The rule at issue in effect would require pharmacists to dispense the “Plan B” or “morning after” contraceptives notwithstanding conscientious objections, and is derived from the emergency regulation promulgated by then-Gov. Rod Blagojevich and litigated in Morr-Fitz, Inc. v. Blagojevich, 231 Ill.2d 474 (2008). See generally Sharp Thinking No. 15 (Dec. 2008). That decision held that the pharmacists had “standing” to challenge the regulation but left the determination of legality to be addressed on remand. On remand, the trial court held the successor regulation violated the “Conscience Act”, the Religious Freedom Restoration Act (775 ILCS 35), and the First Amendment to the U.S. Constitution. The Appellate Court affirmed under the “Conscience Act” and did not reach the other grounds. Morr-Fitz, Inc. v. Quinn, 2012 IL App (4th) 110398. The appeals court modified the resultant injunction to provide that defendants were enjoined from enforcing the current rule against the particular plaintiffs at issue.
John T. Hundley, Jhundley@lotsharp.com, 618-242-0246