You’re elated. You just won a hard-fought trial and obtained a money judgment against a corporate defendant.
You believe the defendant/judgment debtor has the means to satisfy the judgment, but it refuses to pay voluntarily and is stonewalling you. It’s time to go enforce the judgment.
Most attorneys do not do collection work, and that’s essentially what enforcing a judgment is. So, it may very well be the case that whoever litigated the lawsuit isn’t the right lawyer to turn the judgment into actual cash. Enter stage left: the collection lawyer.
Collecting on a commercial judgment is usually either pretty darn easy or pretty darn hard.
The easy ones usually involve healthy, profitable companies that tend to pay their debts and, commonly, judgments that are small enough relative to the overall size of the defendant (actually, once you have a judgment, the defendant has become a “judgment debtor”) that it’s just easier for the judgment debtor to pay than for it to face the consequences of not paying. Also, you’ll usually have an even easier time if a human being in control of the judgment debtor is also a judgment debtor (i.e., you sued and got a judgment against that person as well).
A judgment debtor that doesn’t just pay when nicely asked is subject to a panoply of post-judgment collection remedies. But those remedies will cost you (you are the “judgment creditor” in this story) more time—and unless your collections attorney will take your matter on contingency– and more money—which means you may be throwing good money after bad if collection efforts are unsuccessful.
Collection law is governed by state law, which means that your tools (i.e., collection remedies) vary from state to state. And here’s the thing: don’t assume that just because you sued in one state that you will have to use that state’s collection laws. That’s not the way it works.
After you (more likely your experienced collection attorney) engage in some asset searching activities to discover where the judgment debtor’s assets are, you have to “go get them.” What we mean by that is that you have to “domesticate” the judgment in each state where there are assets you want to try to get to. By “try to get to,” we mean that you will try to seize assets and sell them or at least freeze them so the judgment debtor cannot use them until it pays you.
Let’s use an example: let’s say you have a judgment entered by a state court judge in New York and that diligence reveals the judgment debtor has significant corporate bank accounts in Illinois. Ready for some fun?
You will need to domesticate your judgment in Illinois before you can enforce it. “Domesticating” a judgment is the process of filing it in the state court for enforcement. Illinois is among the majority of states that have adopted the Uniform Enforcement of Foreign Judgments Act (UEFJA),1 which provides a simple, uniform, largely clerical procedure for domesticating foreign judgments (here, “foreign” just means a judgment entered in a federal court or a court in another state—it does not mean a foreign country). Usually, the judgment will be domesticated in the Illinois circuit court for the county in which the judgment debtor or its principal assets are located.
The UEFJA provides that upon domestication, the judgment has the same force and effect as a judgment originally entered in Illinois and is subject to the same procedures and defenses for reopening, vacating, or staying an Illinois judgment.
Illinois courts may stay enforcement of a foreign judgment domesticated under the UEFJA if enforcement is stayed or an appeal is pending in the original “foreign” case, or if the judgment is vacated in the original court.2 Accordingly, it is usually best to wait to domesticate in Illinois until any stay of enforcement is lifted in the original jurisdiction and the time for appeal has passed. If you domesticate and begin enforcement in Illinois too soon and the original judgment is stayed, appealed, or vacated, you risk having to undo any actions you have taken to enforce the judgment.
An easy next step is to record an official copy of the domesticated judgment in the office of the recorder of deeds for each county in which the judgment debtor owns real estate. That will create a judgment lien on the real estate that you can foreclose.3
Jurisdictions throughout the United States have a variety of procedures to aid judgment creditors seeking to enforce their judgments. In most states, for example, judgment creditors may conduct post-judgment discovery to locate the judgment debtor’s income and assets that can be used to satisfy the judgment. For example, in Florida you might use a “Fact information Sheet.” Or you might use a “Writ of Fieri Facias” in Louisiana (no, that’s not Guy Fieri’s latest restaurant) to seize and sell a judgment debtor’s property or garnish a judgment debtor’s bank account or wages. And in New York, you might use a “Restraining Notice” to enjoin the judgment debtor or a third party from transferring the judgment debtor’s money or property.
In Illinois, all of these procedures and more are encompassed in a single device called a “citation to discover assets.”4 Think of it as the turducken of judgment creditor remedies.
The name is deceiving. It sounds like it is just an information-gathering tool, right? Ah, but it is so much more. In the right hands and given the right set of facts, it can be used with great efficiency to get paid.
When a citation to discover assets is served on a judgment debtor or third party, it automatically:
A citation thus preserves the status quo pending a determination by the citation court of the rights of everyone who may have an interest in income and assets that may be used to satisfy the judgment.
Taking a step back, we want to put a spotlight on the middle bullet point above: a citation freezes the transfer of money or property of the judgment debtor. This means two things. First, a third party served with a citation (a bank, for example) cannot properly allow the judgment debtor to use any of the money in its bank account without an order from the citation court that says it can. Second, even if the judgment debtor is sitting on lots of cash, a third party who accepts it in payment (or as, say, a retainer for legal services) without first getting permission from the citation court does so in violation of the asset freeze. All this can put a serious crimp in the ability of a company to operate.
Proceedings following service of a citation may include:
Some states have generous exemption laws allowing judgment debtors to protect substantial portions of their assets from creditors. But like in most states, Illinois exemptions apply only to the personal assets of individual judgment debtors (those who are actual living people).
The basic concepts of judgment enforcement are the same in every state, but the way to use them varies. And, like so many things in life, the right “hired gun” can make all the difference.
©2022. DailyDACTM, LLC d/b/a/ Financial PoiseTM. This article is subject to the disclaimers found here.
David Madden is an attorney with Sugar Felsenthal Grais & Hammer LLP in Chicago, Illinois. He concentrates his practice in restructuring and creditors’ rights, commercial and probate litigation, and business transactions.
Jonathan Friedland is a principal at Much Shelist. He is ranked AV® Preeminent™ by Martindale.com, has been repeatedly recognized as a “SuperLawyer” by Leading Lawyers Magazine, is rated 10/10 by AVVO, and has received numerous other accolades. He has been profiled, interviewed, and/or quoted in publications such as Buyouts Magazine; Smart Business Magazine; The M&A…
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