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A lawsuit at its most basic is a claim or dispute that is adjudicated by the courts. Different courts have been set up to handle different types of cases:
At Geraci Law, we generally deal with Civil or Chancery cases. Usually, the filing of a lawsuit is a last resort if a settlement or agreement cannot be worked out between the parties because lawsuits are generally expensive to bring to trial.
Lawsuits are more common than you might think. The Illinois Supreme Court compiles and publishes yearly statistics about law suits every year. For 2016, which is the most recent year statistics are available, there were 47,358 Foreclosures, and 290,000 Civil Lawsuits (258,269 of which requested less than $50,000).
Lawsuits in Illinois are governed by the rules of Civil Procedure. Lawsuits start with a complaint, which lays out what the plaintiff (the legal term for the person or company bringing the lawsuit) is suing for, which is known as a cause of action and a prayer for relief which lays out what remedy they want the court to impose. In a civil suit the prayer for relief is generally a sum of money they think they are owed.
The plaintiff files their complaint with the court, pays a filing fee, and serves a copy of the lawsuit to the defendant (the person being sued). Generally a copy of the complaint must be served personally to the defendant or left with a resident at the same address who is over the age of 13. In Illinois service of lawsuit documents is usually done by the County Sheriff’s office or by Special Process Servers who are appointed by the court. If the plaintiff has difficulty finding the defendant or they have reason to suspect the defendant is avoiding personal service, they can request that the court authorize alternative means of service such as publication in the newspaper.
The lawsuit paperwork will contain a summons with a court date. This is a deadline for the defendant to file a formal answer to the complaint, which admits or denies the allegations made in the original filing. If no answer is filed, the plaintiff wins the lawsuit by default, because the defendant did not present any evidence or facts is response to the lawsuit and the court only has the complaint to judge the merits of the dispute. If an answer is filed, the court will set discovery deadlines (for the parties to turnover evidence related to the lawsuit to one another, and hear motions on the case.) If the lawsuit survives and the two parties are unable to agree to settle the case, eventually a trial will be set where the judge or a jury will decide who wins.
The vast majority of cases filed never reach trial. Of the 242,299 cases disposed of in Cook County courts in 2016, only 552 resulted in a jury verdict and they took an average of two and a half years to get to a verdict. The vast majority of those cases either got dismissed, a default judgment was entered, or settled prior to reaching that stage.
If a judgment is entered against you, the plaintiff can take a number of actions under Illinois Law to try to collect. A Judgment is good for up to 20 years, but a creditor has to revive their judgment every 7 years in order to collect on it. A judgment collect statutory interest of 9% from the date the judgment is entered until it is satisfied.
A Judgment creditor can file a copy of the lawsuit judgment in a county where the defendant owns real estate, which functions as a lien against that real estate until the judgment is satisfied or expires.
A Judgment can result in garnished wages. A Judgment creditor can serve your employer and require they withhold up to 15% of gross pay under a complicated formula. The judgment creditor is entitled to receive this amount for each pay period until the judgment is satisfied, the employee is terminated, or the court orders the deductions to stop. If multiple creditors are seeking to garnish wages, they stack behind the first creditor to get a wage deduction order and as soon as your first garnishment is paid off, your employer will begin deducting for the next creditor.
A Judgment can result in frozen or garnished bank accounts. If the judgment creditor knows where you bank what can file a citation to discover assets against your bank. Once the bank is notified of the judgment they are required to freeze the account and prevent any withdrawals from those accounts (but they do not stop deposits into those accounts).
If the judgment creditor does not have the debtor’s employment, banking or other asset information, Illinois provides for a way for the judgment creditor to ask the defendant questions under oath about their financial condition and assets. This proceeding is called a Citation to Discover Assets. The judgment creditor can request documents such as prior tax returns, titles to vehicles and any other information related to the defendant’s ability to pay the judgment.
Once the Citation is served upon the defendant they cannot transfer, sell or otherwise dispose of assets without getting permission from the court. If the defendant does not show up or cooperate with the citation to discover assets the judgment creditor can ask the court to hold the defendant in contempt of court and eventually issue a warrant for their arrest.
The bankruptcy code has a mechanism that stops lawsuits from continuing against someone who has filed a bankruptcy. This protection is called the Automatic Stay. Essentially the automatic stay prevents lawsuit creditors from beginning a lawsuit, continuing with a filed lawsuit, enforcing a lawsuit judgment, filing a lien against property, attempt to repossess property, garnishing wages, or any other acts to collect or enforce a judgment. Once a bankruptcy is filed, wage garnishments stop, bank accounts are unfrozen and all collections activity stops!