Once in Court, What Next? James Kropid Assistant Counsel, Illinois EPA

Once in Court, What Next? James Kropid Assistant Counsel, Illinois EPA

OBTAINING AN ORDER THE ORDER IS THE KEY TO OBTAINING ANY RELIEF FROM THE DEFENDANT. WITHOUT AN ORDER ALL YOU HAVE ARE UNENFORCEABLE ALLEGATIONS; THERE IS NOTHING TO COMPEL THE DEFENDANT

THE COMPLAINT THE COMPLAINT IS THE INTITIAL PLEADING. IT SERVES NOTICE TO THE DEFENDANT THAT A LAWSUIT HAS BEEN INITIATED BEFORE FILING THE COMPLAINT, A PRE-FILING MEETING IS STRONGLY ADVISED ONCE A COMPLAINT IS FILED, THERE ARE TWO POSSIBLE OUTCOMES: THE DEFENDANT RESPONDS THE DEFENDANT DOES NOT RESPOND

DEFENDANT DOES NOT RESPOND AFTER 30 DAYS, DEFENDANT IS IN DEFAULT FILE A MOTION FOR DEFAULT, SCHEDULE A HEARING PREPARE A DEFAULT JUDGMENT ATTEND THE HEARING AND “PROVE-UP” CASE OBTAIN ORDER FOR DEFAULT JUDGMENT

DEFENDANT RESPONDS/ANSWERS IS DEFENDANT WILLING TO ENTER INTO CONSENT ORDER? THEN NEGOTIATE ORDER, EITHER INTERIM OR FINAL IMPORTANT TO NOT LET NEGOTIATIONS TAKE TOO LONG IS DEFENDANT CONTESTING MATTER? OFTEN TIMES, NO REAL LEGAL BASIS FOR CONTESTING JUST A DELAY TACTIC GOAL IS TO MOVE CASE TO RESOLUTION AS QUICKLY AS POSSIBLE DISCOVERY IS NEXT STEP IN A CONTESTED MATTER

DISCOVERY PURPOSE OF DISCOVERY BOTH SIDES FIND OUT FACTS OF CASE PRESERVE TESTIMONY (DEPOSITIONS, INTERROGATORIES) FRAME THE ISSUES FOR THE GOVERNMENT WITH A GOOD INSPECTION REPORT AND A GOOD WITNESS, DISCOVERY WILL BE MINIMAL OR NOT EVEN NECESSARY. THEREFORE, DISCOVERY SHOULD BE AS SHORT AS POSSIBLE.

SPEEDING UP A CONTESTED MATTER LIMIT DISCOVERY LIMIT TIME BETWEEN STATUS HEARINGS ALWAYS INSPECT BEFORE HEARING SO CURRENT STATUS IS KNOWN CONSIDER USING A REQUEST TO ADMIT FACTS (S. CT. RULE 216) PUSH FOR A PRE-TRIAL HEARING AND FOR TRIAL CONSIDER AN INTERIM AGREED ORDER RESERVE PENALTIES VERIFIED TIMELINE FOR CLEAN-UP (WITH INPUT FROM DEFENDANT IF REASONABLE)

CONTESTED MATTERS AFTER (BRIEF) DISCOVERY PERIOD: IF FACTS ARE NOT IN DISPUTE, CONSIDER FILING A MOTION FOR SUMMARY JUDGMENT IF FACTS ARE IN DISPUTE AND NO REASONABLE SETTLEMENT, THEN MATTER PROCEEDS TO TRIAL IN EITHER CASE, A JUDGMENT/ORDER WILL ISSUE

ORDER NON-COMPLIANCE IF IT IS A JUDGMENT OR DEFAULT ORDER, THEN RULE TO SHOW CAUSE WHY DEFENDANT SHOULD NOT BE HELD IN CONTEMPT IF NEGOTIATED(AGREED) ORDER, THEN CERTAIN PROVISIONS, LIKE STIPULATED PENATIES, ARE SELF EXECUTING

CONTEMPT FOR INJUNCTIVE RELIEF, USE CONTEMPT TO COMPEL DEFENDANT TO PERFORM. JAIL TIME IS A LAST RESORT OPTION. THIS WILL BE A SLOW PROCESS FOR PENALTIES/COSTS/MONETARY RELIEF, THERE ARE LEGAL MECHANISMS TO COLLECT. HOWEVER THERE ARE LIMITATIONS (INCLUDING BANKRUPTCY) MAKING COLLECTION A FRUSTRATING PROCESS

COLLECTION MECHANISMS CITATION TO DISCOVER ASSETS NON-WAGE GARNISHMENT WAGE GARNISHMENT LIENS OFFSET

CITATION TO DISCOVER ASSETS TO FIND OUT HOW MUCH, OR WHAT, REAL OR PERSONAL PROPERTY A DEFENDANT OWNS, CAN USE A CITATION TO DISCOVER ASSETS COMPELS DEFENDANT TO COME TO COURT AND TESTIFY AS TO WHAT ASSETS THEY POSSESS IF THERE IS PROPERTY TO COLLECT, COURT CAN ORDER THAT PROPERTY BE TURNED OVER OR CONDUCT A JUDICIAL SALE SUBJECT TO EXEMPTIONS

NON-WAGE GARNISHMENT USE WHEN THIRD PARTY (E.G. BANK, RELATIVE) IS HOLDING MONEY OR PROPERTY OF DEFENDANT COMPEL THIRD PARTY TO TESTIFY ABOUT DEFENDANTS PROPERTY SUBJECT TO EXEMPTION

WAGE GARNISHMENT SUMMONS ISSUED TO DEFENDANT’S EMPLOYER ORDER TO WITHOLD WAGES SUBJECT TO AUTOMATIC EXEMPTION (15% MAX. OF EARNINGS, MUST MAKE MIN. OF 371 WEEK) CERTAIN INCOME NOT SUBJECT TO WAGE GARNISHMENT SOCIAL SECURITY AND SSI PENSIONS VETERAN’S BENEFITS WORKER’S COMP

LIENS 735 ILCS 5/12-101 IN ILLINOIS, LIENS ATTACH ONLY TO REAL, NOT PERSONAL, PROPERTY FILE JUDGMENT ORDER WITH RECORDER OF DEEDS IN COUNTY WHERE SUBJECT REAL ESTATE IS LOCATED TO CREATE LIEN GOOD FOR SEVEN YEARS, JUDGMENT CAN BE REVIVED POSSIBLE TO FORECLOSE ON LIEN BUT EXPENSIVE, USUALLY LIEN WILL BE PAID OFF TO CLEAR TITLE UPON THE SALE OR REFINANCE OF THE PROPERTY SUBJECT TO HOMESTEAD EXEMPTION AND OTHER LIENS

OFFSET 15 ILCS 405/10.05d STATE COMPTROLLER ENTERS INTO AGREEMENT WITH LOCAL GOVERNMENT TO OFFSET MONEY OWED TO DEBTOR BY STATE OF ILLINOIS

EXEMPTIONS A DEBTOR CAN CLAIM 4,000 OF PERSONAL PROPERTY OF DEBTOR’S CHOICE, INCLUDING CASH 2,400 OF VALUE IN A MOTOR VEHICLE 1,500 OF VALUE OF TOOLS IN DEBTOR’S TRADE 15,000 ( 30,000 IF MARRIED) IN RESIDENCE MONEY IN PENSION PLAN OR IRA THESE EXEMPTIONS MUST BE ACTUALLY CLAIMED BY DEBTOR