What should you do if you've received a citation to discover assets?
What should you do if you've received a citation to discover assets?
Bank levy, wage garnishments, other ways to collect debt
You should never ignore a citation to discover assets. Doing so could result in law enforcement forcibly taking you to court. If you receive a citation to discover assets, contact a lawyer for advice on how to proceed.
Recommended Read: “Legal defense for a citation to discover assets ~ How can an experienced collection defense attorney help you deal with a citation to discover assets?”
Here are the basics you’ll also need to know beforehand.
What is a citation to discover assets?
A citation to discover assets is a legal requirement where you come to court and answer questions about all of your assets, where you bank, and where you work. I have handled cases in which the creditor’s attorney asked to look through a debtor’s personal belongings (e.g. briefcase, wallet, pockets) for information regarding assets. Theoretically, if you have money in your wallet, a judge could order it to be turned over. In most cases, a citation to discover assets will require you to turn over your money and information about bank accounts and other property to the creditor.
Does the citation to discover assets create an automatic lien on property?
The automatic lien comes with the judgment, and the citation is just one of the methods for enforcing that lien or judgment. In other words, the citation itself does not create the automatic lien, but the judgment upon which it is based will already have done so.
Wage garnishments and liens happen before a lawsuit or after the suit?
After. If a creditor wins the lawsuit, the court enters a money judgment in its favor and against the debtor. That judgment gives it the right to seize your assets and is automatically a lien on any property you own. The tools for collecting are many, but usually creditors use a bank levy, a wage garnishment, a citation to discover assets, a lien foreclosure or a combination of all of the above. These tools are used in what are called supplementary proceedings. The good news is that there are defenses that an experienced, determined lawyer can raise on your behalf to save some or all your assets without declaring bankruptcy.
Recommended Read: “Filing for bankruptcy isn't always the best response to debt collection ~ What the TV ads don't tell you about US bankruptcy laws”
What are possible outcomes from a court date for a citation to discover assets?
If you do not show up to the court date for a citation to discover assets, then the judge will probably order a body attachment, which means you will be seized by the sheriff and forcibly brought to court at a future date. If you do show up, then you will be questioned about your assets.
If you are unable to raise exemptions or reasons why you shouldn’t have to pay, then the judge will order you to turn over your property to the creditor and will continue the citation for another hearing to see whether you actually turn over your property. But if you do have defenses, then the citation will be dismissed, which means that you will no longer have to come to court—at least until another citation gets issued.
It is important to remember that debt buyers play a very, very, long-term game. Even though the current citation to discover assets may end up being dismissed, the judgment against you will still exist until it is paid off. Judgments in Illinois may be enforced for up to 27 years. This means your creditor can wait for years, hoping that your circumstances will have changed to make you more “collectable”—and then hit you (or your bank or your employer) with another citation.
Are there certain assets that are protected from judgment collection in Illinois?
The following items are protected:
$1,500 worth of equipment for your business or profession are protected from liens
House exemption of up to $15,000 (This means that if you have $15,000 in equity on your house after the mortgage loan gets paid off, you will be able to keep it.)
Pension payments, retirement funds, and money for child support and alimony are also protected
Personal items (e.g. necessary clothing, a Bible, schoolbooks)
Social Security income, workers’ compensation
Vehicles for up to $2,400 worth of their value (This means that if your car is worth $10,000, they could seize and sell it for $10,000, and you would get $2,400 in return.)
Wildcard exemption of $4,000 that can be put toward any other exemption.
What happens if the creditor determines that all of your income and property is exempt under Illinois law?
If it’s determined that all of your income and property is exempt under Illinois law, then the creditor will dismiss the citation and wait until you have better days.
However, as I mentioned above, debt collectors play a very long-term game, and may wait to launch another citation years later when you will have acquired assets or gained better employment within the next 27 years.
What is a third-party citation? Isn’t contacting an employer about my debt illegal?
In the context of enforcing a judgment through the court system, it’s not illegal to use a third-party citation. A third-party citation to discover assets involves a first-party (the plaintiff/creditor), a second party (the defendant/debtor) and a third party who was not involved in the underlying lawsuit. The third party could be an employer, bank or whomever your creditor thinks might be holding any assets or money that belongs to you.
What are the different types of third-party citations?
A citation served on your employer is called wage garnishment. It tells the employer that there’s a judgment amount against you. The employer is ordered to turn over a percentage of your wages in order to pay that judgment. If the employer doesn’t want to do that, then it must show up in court at the time and place shown on the citation. Most employers don’t show up because they don’t know the facts of the judgment and don’t want to be bothered; if no one shows up at the citation hearing, then the judge will order that the employer pay over a certain percentage of your wages to the creditor.
Your employer has no choice but to obey that court order and will start withholding money from your paycheck. But you have the right to show up in court and contest the wage garnishment, whether by challenging the validity of the underlying judgement or by raising exemptions that protect your wages. If the judge finds that the exemptions are valid, he or she will dismiss the citation and your wages will not be garnished.
The other type of third-party citation is a bank levy. Upon such a citation having been served on your bank, the bank must automatically freeze your bank account. This means that no money can be withdrawn from your account, which, of course, can be a huge headache when it comes time to pay your bills. This type of citation also tells the bank to show up and explain why it shouldn’t turn over the money in your account to the creditor.
Because it’s your money, however, and not the bank’s, a bank will rarely go to court and fight the citation. It will simply turn over to the creditor whatever money you have in your account. But you can go to court and have a hearing to explain why the bank shouldn’t have to turn over your money. If you can successfully assert exemptions at that hearing, then the bank won’t turn over your money.
What is a post-judgment proceeding?
A judgment is the court’s final decision in a case—usually either that the plaintiff/creditor has failed to prove its case (debtor wins) or has proved its case (debtor loses). If the creditor wins, the judgment is a final order that the defendant pay the plaintiff the dollar amount stated in the judgment. Because courts expect their orders to be obeyed, the law considers this final order to be the end of the case. Final post-judgment proceedings mean that the judgment is the end of the case. But often, defendants/debtors can’t or won’t pay a judgment order. So when a creditor takes steps to collect on a judgment after it has been entered, these steps (typically citations to discover assets) are known as post-judgment proceedings.
What happens when a judgment is entered against me?
When a judgment is entered against you, it automatically becomes a lien on any property that you have. For some property, such as the food in your fridge, it doesn’t really matter because it’s not useful to a creditor. However, such a lien on your vehicle or real estate can be a very serious matter. Once on your property, a lien remains there until the creditor forecloses on the property or until you try to sell it—at which time you will have to pay off the creditor so that the property can be sold free and clear of the lien. Even if you are living only on Social Security or otherwise uncollectable (for now), the creditor will just leave the lien on your property and collect it once you die or try to sell that property. If you don’t deal with a lien, then your heirs will be left to deal with it after you pass.
How do I resolve a judgment placed against me?
One way to resolve a judgment that’s been placed against you is to pay it, after which you will get a release and satisfaction of judgment. This will then be filed with the court and recorder’s office so that the property record shows that the judgment has been paid.
Is it possible to reverse a judgment against me?
If you can prove that you were not properly served with (notified about) the underlying lawsuit when it began, then you can fight it in court. Proving that you were not served, however, can be difficult. When a sheriff (or special process server) serves (delivers to you or a family member) a lawsuit, he or she will make an affidavit of the date, time, place and person to whom a copy of the lawsuit was handed. Such an affidavit is considered proof that you knew about the lawsuit. This means that it’s up to you to prove that you weren’t served with the lawsuit. You will need strong evidence (proof that you were on vacation, in jail, in the hospital, did not live at that address, etc.) to convince a judge the sheriff’s affidavit was false and that the judgment against you should be set aside.
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