Professional Documents
Culture Documents
September, 2006
TABLE OF CONTENTS
Table of Contents
Disclaimer
9-10
11
12
13-14
15-19
20
24
25
Myths
26
Tips
27
USE CAUTION!
This is very
important so pay
attention.
GO!
CHECK IT OUT!
This issue is
discussed in
another packet.
Because this packet discusses terms and actions you are likely not familiar with,
you will need to refer back to the following sections from time to time when
reading this packet:
Judge:
The judge is the person who presides over the courtroom. In most
cases, the judge makes all of the final decisions and approves all
agreements. When a judge makes a decision or a finding, it has the
force of law. The judge also sets and enforces court rules (like dress
codes) and in some courthouses, the judge decides when cases are
scheduled.
Circuit Clerk:
The Circuit Clerk is responsible for creating, managing, and updating
court files. When you want to put something in a court file, see a court
file, or make a copy of something in a court file, you talk to the Circuit
Clerks staff. In some courthouses, the Circuit Clerk also decides when
cases are scheduled.
Sheriff:
The Sheriffs main duty is to keep the peace and to enforce the law. His/
her role in the legal system, however, is usually to serve (give notice) to
people that they are being sued. The sheriff does this by giving the
person a notice called a summons . The sheriff also enforces the judges
orders.
Attorney:
An attorney is someone who can help you with your legal problem by
providing you with advice about the law, the legal system, and the merits
of your case. An attorney can act as your advocate and can represent you
in court and in negotiation settlements.
Mediator:
A mediator is someone who can meet with you and the
person with whom you have a dispute and help you both
come to a resolution you can both agree on. A mediator is
not a judge and does not make decisions, but rather helps
you make a decision. In some counties, mediation is offered
in certain types of cases.
Mediation
In some cases, you may be able to work out an agreement with
the person that owes you money as to how they will pay you. A
mediator is someone who can meet with you and the person with
whom you are having a dispute and help you both come to a
resolution you can both agree on. A mediator is not a judge and
does not make decisions, but rather helps you and the other
party make a decision. In some counties, mediation is offered in
certain types of cases.
affidavit
A sworn statement by a person. Lying in an affidavit can result in a
charge of perjury which could mean a fine, imprisonment, or both.
answer or response
The written response to a complaint or a petition that is filed by the
defendant (the person being sued) in a lawsuit. In small claims court, you
are not required to file an answer as long as you show up to the first
scheduled hearing on the plaintiffs complaint.
circuit
The judicial system in Illinois is divided into circuits. Each circuit defines a geographic area in Illinois.
contempt
When a person fails to follow a court order which directs him/her to do (or not to do) something, he/
she can be held in contempt of court. Being held in contempt can lead to time in jail, a fine, or both.
exemption rights
In Illinois, certain property (including cash, income, personal property, and a portion of your car and
home) cannot be taken from you to pay a debt. This property is called exempt property. If a judgment
is entered against you in Illinois, you have the right to claim this property as exempt and not use it to
pay a debt against you. For a discussion of your rights as a debtor, see Packet #1 of the Financial
Matters Series.
debtor
A person who owes money.
defendant
A person who is sued.
hearing (trial)
An opportunity for both parties to tell the judge or jury their side of a dispute. Some hearings are
court ordered so missing them can result in being held in contempt of court. For hearings which are not
court ordered, failure to appear can result in the other side getting what they want in relief.
judgment
A final decision or order of the court.
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jurisdiction
Whether the court in a particular state has the power to hear a case or to order someone to do
something depends upon whether it has jurisdiction . Jurisdiction can be either over a person or over
a thing For a state court to have jurisdiction over a person, generally, the person must either reside in
the state or have committed an act in the state that gave rise to the case.
motion
A written or oral request to the judge after a lawsuit has been started (see petition).
notary public
A person who verifies that a signature on a document is made by the person whose signature appears.
The notary public does not verify the content of the document itself.
petition or complaint
A written request to the court. A petition usually starts a lawsuit and contains the facts that one
person alleges has happened along with the relief that they are requesting from the court.
plaintiff or petitioner
The person who starts a lawsuit.
pro-se
A person who is not represented by an attorney and is involved as a party in a lawsuit.
serve or service
The process where a person is officially notified of a pending lawsuit.
statute
The law that the state legislature or federal government enacted on a particular subject.
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The court must have jurisdiction over you to give you what
you want. Similarly, to order a person to do something
like pay you money or to show up to a hearing, the court
must have jurisdiction over him/her.
To know if the court has jurisdiction over you or the party you are suing,
you need to know the following rules.
How the court gets jurisdiction over you:
If you are enforcing a judgment for money that was entered in a court in Illinois, the
court will have jurisdiction over you and your case once you file your collection action.
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Before you file a collection action you should know what money you cant access/
get at when collecting a money judgment in Illinois
In Illinois, a debtor has certain money and assets which cannot be taken from him/her
even by a court order to pay a debt unless that debt is child support, a criminal fine, or
for taxes. This money/property is called exempt property. If the person you are trying
to collect from has only exempt income and assets, it is probably a waste of your
time and money to take legal action to collect from him/her at this time. If you can,
try to work out an agreement with the debtor and take whatever amount they are
offering until his/her financial situation improves.
Real estate
Up to $15000 of the value of a debtors home is exempt. If the debtor is
married, the amount is $30000.
Automobiles
The first $2400 of the value of a debtors automobile is exempt.
Assets
Up to $4000 worth of any property belonging to the debtor, including money in a bank
account, is exempt.
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Personal belongings
All of the necessary clothing, family pictures, bibles, and school books of the debtor are
exempt.
Government benefits
All of the following government benefits are exempt regardless of their
amount: All Illinois Department of Human Services benefits, including,
TANF, AFDC, AABD, GA, food stamps; All Social Security benefits,
including SSI disability benefits; Veterans Administration benefits;
workers compensation benefits; black lung benefits; unemployment
compensation; and crime victims awards.
Health aides
Any health aide prescribed by a physician that belongs to a debtor is exempt.
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STEP 1: MAKE SURE YOU ARE PURSUING THE RIGHT COURSE OF ACTION
If you have a judgment or an order by the court requiring the debtor to be making payments at a
certain time and in a certain amount and you want to enforce that order because the debtor is not
following it, you will want to request an Order To Show Cause. If this is your situation, you should go
to page 20.
If, however, you do not have a court order which requires the debtor to be making payments or if you
do not like the payment order you have, then you want to begin the process of getting an order by
filing a Citation To Discover Assets. If this is your situation, proceed to step 2.
STEP 2: FIGURE OUT WHERE YOU ARE GOING TO FILE YOUR ENFORCEMENT
ACTION:
The law requires you to file your Citation To Discover Assets in the county where the person you are
suing lives or in the county where the judgment was entered. If you are unsure where to file, then file
your Citation where the person you are suing lives.
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17
If the person you are suing has filed a response and it appears from the response that he/
she has an attorney, or if an attorney contacts you at any time before or during the hearing,
you should seek legal assistance immediately as it is not a good idea for you to proceed
against a person who is represented by an attorney on your own.
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STEP 8: WRAP IT UP
If the Judge has signed a new Order for Payment, you will need to file your new Order with the Clerk
and send a file-stamped copy of it to the other party.
To certify (prove) that you have done this, you will need to file a Certificate of Mailing with the Clerk.
As with all documents you file, be sure to keep file stamped copies of these documents for yourself.
Remember to hold on to your Order as it is your proof that you are entitled to payment. If you lose
your Order, however, dont panic. As with any document you file, you can always get another copy from
the Circuit Clerk. You may, however, have to pay for the copies.
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Finally, whenever you lose in court, you have the right to request the court to reconsider its
decision and you have the right to appeal the decision to a higher court. Please note that in
most cases you have 30 days or less from the date of the judges decision to exercise these
rights or you may lose your right to reconsideration or appeal. You should seek the assistance
of an attorney to exercise these rights.
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Step One: Make sure you are pursuing the right course of action
If you have a judgment or order by the court requiring the debtor to be making payments at a certain
time and in a certain amount and you want to enforce that order because the debtor is not following it,
you will want to request an Order To Show Cause. If this is your situation, you should proceed to Step
2.
If, however, you do not have a court order which requires the debtor to be making payments or if you
do not like the payment order you have, then you want to begin the process of getting an order by
filing a Citation To Discover Assets. If this is your situation, go to PAGE 15.
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Step Three: File your Affidavit and Petition and get your Order signed
You should file your Affidavit and Petition in the county where the original payment order was
entered. If you do not apply for a waiver of the filing fee see below you will have to pay to file
your Petition.
If you want to apply for a fee waiver, your first step is to give the Application To Sue as A Poor Person
to the Circuit Clerk and ask that it be presented to a judge for his/her approval. Wait (this may take
several days) to see if it is approved, and if it is, you can then file your Petition without paying any
filing fees.
After your fee waiver is either approved or denied (or if you dont apply for a waiver) you should file
your Petition for Order to Show Cause. Remember to take the original and 2 copies of the Petition
with you to the Circuit Clerks office (one for yourself and one for the debtor. When filing your
Petition, ask the Clerk to present the Petition and Order to a judge for his/her approval. Give the
Clerk a self addressed stamped envelope to return the Order to you if it is approved.
Step Four: Notify the debtor of the Order to show up and explain
You will need to serve a copy of the Petition, Affidavit, and Order on the
debtor. If the debtor lives inside the State of Illinois, use Packets #1 and 2
of the How to Serve series; if the debtor lives outside the State of Illinois,
use Packets # 3 and 4 of the How to Serve series. If you dont know where
the debtor is or if attempts to serve him/her have been unsuccessful , you
cannot proceed with your request for a hearing because you cannot serve
someone with an Order To Show Cause by publication (discussed in Packet #5
of the How to Serve series).
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you lose your Order, however, dont panic. As with any document you file, you can always get another
copy from the Circuit Clerk. You may, however, have to pay for the copies.
Q: How long does my judgment or order for payment last?
In most cases, your judgment or order for payment will last for 20 years before it needs to be
renewed.
Q: What if my request is denied?
If your request for a hearing or for payment was denied because you did not have enough evidence to
support your request, then you will have to wait until the circumstances surrounding your request
change before you can file another Petition. The reason for this is because once the court makes a
decision about an incident or an event, it cannot address that same incident or event again.
If your request was denied because of some procedural error on your part (for example, you did not
get proper service), then you should correct the error and request another hearing.
Finally, whenever you lose in court, you have the right to request the court to reconsider its
decision and you have the right to appeal the decision to a higher court. Please note that in
most cases you have 30 days or less from the date of the judges decision to exercise these
rights or you may lose your right to reconsideration or appeal. You should seek the assistance
of an attorney to exercise these rights.
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sheriffs sale
If you can afford to pay the sheriff a bond equal to twice the amount of the judgment
you are trying collect, plus a fee for service, you can ask the sheriff to seize, hold, and
sell non-exempt assets. You would collect your judgment from the sale of these assets.
Keep in mind that most sheriffs will require you to also pay for an indemnifying bond
which insures that if the sheriff is sued over either the taking of the property or the
sale, that you will pay for the sheriffs costs and legal fees.
wage garnishment
If the debtor is employed and his/her net income is more than $292.50 per week, you can
ask the court to garnish his/her wages to pay towards the judgment.
non-wage garnishment
If the debtor has more than $4000 in a bank account, you can ask the court to order
that any amount above the $4000 be given to you to pay towards your judgment.
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Myths
26
Tips
27
Dont waste your time and money if the debtors income/assets are exempt
As explained on pages 13-14, if the debtor has only exempt assets and income, it doesnt make much
sense for you to spend any more of your time and money taking him/her back to court when the
court cannot force the debtor to make payments to you. Your only option in this scenario is to wait
until the debtors financial situation improves.
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