Home > Research Legal Advice > Bankruptcy / Debt > How do I handle a "Citation to Discover Assets " hearing that I had mi...
Asked about 1 year ago - Oswego, IL
Flag
*These court papers were served to my father with the same name.
*This is a judgement back in 2005 that I never received papers on, but showing that I received at an OLD address where, at the time, I was not living.
Pursuant to Illinois Supreme Court Rule 277 (http://www.state.il.us/court/supremecourt/rules...)), service of a citation to discover assets is proper by any means (apart from publication) set forth in Illinois Supreme Court Rule 105 (http://www.state.il.us/court/supremecourt/rules...). Pull up the court file and make a copy of the proof of service of the complaint and summons, and get a copy of the proof of service of the citation to discover assets and the citation notice (the attorney for the plaintiff/judgment creditor may send you these as a courtesy, upon request). Check the court docket (http://www.co.kendall.il.us/circuitclerk/eMagnu...) to see what happened on the return date for the citation and contact the attorney if you’ve not done so and explain the situation, providing supporting documentation if necessary. If you were not properly served with the citation and notice and were not properly served in the underlying case, and if the attorney refuses to move to have the citation dismissed and the judgment vacated, hire an attorney. A judgment entered when a court does not have jurisdiction over the party may be attacked and vacated at any time. Unlike other petitions brought under 735 ILCS 5/2-1401 (http://www.ilga.gov/legislation/ilcs/fulltext.a...), the due diligence, meritorious defense, and 2-year time requirements are not required as part of a petition to vacate such a judgment. Hope this helps. Good luck.
If you are being sued to collect a consumer debt, I recommend contacting a consumer law attorney about the situation. The first poster is correct about the fact that judgment obtained without service can be vacated at any time. However, that doesn't mean you can ignore the situation, because if they told the court they have valid service, which is likely based on the facts you gave, you could potentially be arrested for not appearing in response to the citation to discover assets. A good consumer attorney can assist you in dealing with the judgment and can determine if their conduct violated the Fair Debt Collection Practices Act in any manner.
Since we don't have your name, let's just call you "John Doe" for a moment.
1. Even if the wrong person was served, what could happen next is that your father COULD be served with a "rule to show cause" why he should not be held in contempt of court for failure to show up the first time. Then, if he fails to show up for that, the next thing could be a "body attachment" which is where the sheriff comes out, arrests him and takes him to court. If he appears at court at any point in this process, and is dismissed because he is not the "right" John Doe, he will most likely be asked if he knows where you are. If he does, the next thing will be service on you, the "right" John Doe. If he doesn't, eventually you will be found after the judgment creditor spends more money to do so (probably through a detective agency) which you also may have to pay for when they do ultimately catch up with you.
2. SO, you should take the "CDA" to an attorney and think about having him or her help you through this. If the old judgment can't be dealt with, and there's a good chance it's way too late even if you were served at an address you no longer lived at (but you should talk about with the attorney anyhow just in case), at least you can deal with the CDA.
Don't speak legalese? We define thousands of terms in plain English.
Browse our legal dictionary