Technicalities Do Not Quash Garnishment in Debt Collection Case

 Posted on September 25,2018 in Creditor's Rights

Obtaining a judgment order against a debtor gives you the authority to enforce your debt collection. However, your debtor may continue to fight your collection efforts, based on legal technicalities and new claims. Thus, the legal battle against your debtor is not finished until you have received the money you are owed.

Recent Case

In MI Management v. Proteus Holdings, the plaintiff is a creditor who appealed multiple Illinois circuit court decisions that:

• Quashed garnishment orders against a debtor;
• Vacated a third-party citation to discover the debtor’s holdings in a bank; and
• Granted a third-party creditor’s adverse claim to the debtor’s holdings.

In 2014, the plaintiff received a favorable judgment against two individual debtors and their company for breach of a $1.25 million promissory note. The plaintiff issued wage and non-wage garnishment summons against the debtors, who did not respond or appear in court. The court granted conditional garnishment judgment orders, which were later confirmed after the debtors continued to not respond. The plaintiff issued citations to discover assets to the debtors and their bank.

Contesting Collection

More than a month after the garnishment judgments, the debtors filed an emergency motion to quash the plaintiff’s garnishment summons because the creditor:

• Had not signed and notarized the affidavit; and
• Did not include a signed judgment against one of the debtors.

The circuit court granted the debtors’ motion, which effectively vacated the garnishment judgments and citations to discover assets. After the debtors filed their motion, a third-party creditor filed an adverse claim, which stated that it had a perfected security interest in the debtors’ holdings due to a debt it had purchased that preceded the plaintiff’s debt. The court granted the adverse claim.

Appeal

An appellate court recently overturned the circuit court’s judgments against the plaintiff. The court found that the plaintiff’s mistakes were technical but not substantive and the debtor could still ascertain the meaning of the summons without the required signatures. The court ruled that the adverse claim decision was invalid because of the circuit court’s earlier decision to vacate the garnishment orders. With no garnishment in place, the two creditors did not have anything to dispute. The court reinstated the garnishment orders, with the expectation that the adverse claimant will file again.

Following Through on Debt Collection

Creditors are supposed to be able to swiftly enforce a debt judgment in their favor but sometimes need additional legal action to do so. A Chicago creditors’ rights attorney at Dimand Walinski Law Offices, P.C., can help you use mechanisms such as garnishment to collect from debtors. Schedule a consultation by calling 312-704-0771.

Source:

http://www.illinoiscourts.gov/Opinions/AppellateCourt/2018/1stDistrict/1160972.pdf