Due to recent economic downturn, creditors have become all too familiar with phrases such as automatic stay and much too familiar with Title 11 of the United States Code (or the Bankruptcy Code). Unfortunately, when many creditors receive a notice of bankruptcy filing they assume that they have no rights and no ability to enforce their debt. However, this is not necessarily the case.
Creditors who are subjected to a bankruptcy case are entitled to their share (according to their due priority) of any distribution that may exist. Further, creditors are entitled to have their day in court, and are allowed to object to the debtor’s plan of reorganization in Chapter 13, 11, 12, and 13, and creditors can object to discharge of debt in Chapter 7 and even have their debt deemed nondischargeable in Chapter 7 in certain circumstances.
So, what should a creditor know when they are served with a notice of bankruptcy filing? Initially, cease all telephone calls, billings or law suits that may be pending against the debtor, such actions could be violations of the automatic stay, and subject a creditor to sanctions for actual damages, punitive damages, and even attorneys’ fees of the debtor. After ceasing such conduct, we recommend seeking the advice of an attorney for your particular needs. However, generally, a creditor has the right to file a proof of claim. If choosing to act without an attorney, please be advised that there are strict deadlines for filing a proof of claim, and the courts generally strictly enforce these deadlines.
Further, a creditor must consider if his debt is the type of debt that is not dischargeable in bankruptcy. The most common types of debts that are not dischargeable in bankruptcy are debts arising out of fraudulent, willfully malicious acts by debtor, acts arising out of criminal conduct, and acts arising out of domestic issues (this is not an inclusive list, please contact an attorney to determine if your specific debt may be nondischargable in bankruptcy). Please see Section 523 and Section 727 of the Bankruptcy Code for further reading about nondischargeability in bankruptcy and objecting to discharge.
Finally, whether you choose to contact an attorney or not, please feel free to contact the trustee for your particular needs if you suspect that the debtor is not being completely honest in his assets or debts. Creditor vigilance is the best deterrent to bankruptcy abuse.
Please feel free to contact our office with any questions regarding creditors’ rights in bankruptcy.
A judgment issued by the Circuit Court of the State of Illinois generally may be enforced for a period of 7 years (735 ILCS 5/12-108), and renewed if an action for revival is brought within 20 years after the date of entry. (735 ILCS 5/13-218)
It may become a lien on the judgment debtor’s real property if it is filed with the recorder of deeds in the county in which land is located. (735 ILCS 5/12-101) Such lien stays with the property for 7 years from the date of the Judgment, and may be extended for an additional 7 years by revival of judgment and filing of the revival order with the recorder of deeds. (735 ILCS 5/12-101 to 12-104)
A judgment creditor may enforce the judgment against the judgment debtor’s non-exempt personal property upon the issuance of a writ of execution at any time during the life of the judgment. (735 ILCS 5/12-111)
Confession by Judgment may be entered without service of process on the debtor, under the laws of the State of Illinois, on any bona fide debt in the county where defendant resides or owns property, or where the instrument evidencing the debt was executed. However, this type of judgment may be prohibited in consumer transactions. (735 ILCS 5/2-1301[c]). The term ‘consumer transaction’ means sale, lease, assignment, loan or other disposition of item of goods, consumer service, or intangible to individual for purposes that are primarily personal, family, or household. (735 ILCS 5/2-1301).
A judgment debtor’s wages may also be garnished, but the amount which may be withheld cannot exceed the lesser of 15% of gross amount paid for that week, or such amount of disposable income in excess of 45 times the Federal minimum hourly wage. (735 ILCS 5/12-803) Garnishment of wages is not permissible if judgment is entered by confession unless the judgment is confirmed, by trial de novo, after service of process. (735 ILCS 5/12-813)
Foreign Judgment: The State of Illinois generally adopts the Uniform Enforcement of Foreign Judgments Act. (735- ILCS 5/12-615 to 12-626). Any judgment, decree or order of a court of the United States or of any other court is entitled to full faith and credit in the State of Illinois. A judgment creditor seeking to enforce a foreign judgment may file with the appropriate court an authenticated copy of the foreign judgment and an affidavit showing the name and last known post office address of the judgment debtor and the judgment creditor. The clerk of the court and the creditor are required to mail a written notice of the filing of the foreign judgment to the judgment debtor at the address given. The notice must include the name and post office address of the judgment creditor and, if the judgment creditor has an attorney in this state, the attorney’s name and address. Lack of mailing notice of filing by the clerk does not affect the enforcement proceedings if proof of mailing by the judgment creditor has been filed. A judgment so filed has the same effect and is subject to the same procedures, defenses, and proceedings for reopening, vacating, or staying as a judgment issued by the Courts in Illinois, and may be enforced or satisfied in like manner.
Statutory post-judgment interest on money judgments: 5% per annum. (815 ILCS 205/1)
Statutory post-judgment interest on written contracts: 9% per annum or such maximum rate that may lawfully be contracted for under the law applicable thereto at the time the contract is made. (815 ILCS 205/4)
Judgment rate: 9% per annum on all civil judgments. (735 ILCS 5/2-1303)
Exemptions: In general, a debtor may claim exemption of his homestead and certain personal property from attachment and execution of a judgment, or in a bankruptcy proceeding. The State of Illinois permits a judgment debtor to claim homestead exemption up to an amount of $7,500 in a farm or lot of land and buildings thereon, a condominium, or personal property, owned or rightly possessed by lease or otherwise, and occupied by him or her as a residence. If two or more individuals own property that is exempt as a homestead, the value of the exemption of each individual may not exceed his or her proportionate share of $15,000 based upon the percentage of ownership. (735 ILCS 5/12-901). Personal property which may be exempt from levy or sale upon execution, writ of attachment or any process issuing out of any court in the State of Illinois may include wearing apparel, bible, school books, and family pictures of the debtor and dependents; equity interest in any other property not to exceed $2,000 in value; interest in any one motor vehicle not to exceed $1,200 in value; equity interest in any implements, professional books, or tools of the trade not to exceed $750 in value; professionally prescribed health aids; life insurance proceeds; social security benefits; veteran’s benefits; disability, illness or unemployment benefits; and alimony, retirement plan proceeds. (735 ILCS 5/12-1001, et seq.). In any bankruptcy proceeding, a resident of the State of Illinois may be prohibited from using the federal exemptions provided in Section 522(d) of the Bankruptcy Code of 1978. (735 ILCS 5/12-1201)