Illinois Bar Journal


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Articles on Debtors and Creditors

Borrower not entitled to set-off on deficiency judgment when bank resells house for more than purchase amount September 2016 Illinois Law Update, Page 18 On June 28, 2016, the Second District of the Illinois Appellate Court held that borrowers could not receive a set-off against a deficiency judgment when the bank purchased their home at auction after a foreclosure and subsequently sold it for a higher amount.
Amendments to the Collection Agency Act define terms and apply Act to debt collection by collection agencies July 2016 Illinois Law Update, Page 18 The Department of Financial and Professional Regulation amended the Collection Agency Act. The amendments add definitions for the terms "collection agency," "consumer credit," and "consumer debt."
From the Newsletters - The first 10 steps if you represent a creditor July 2016 Article, Page 40 The first 10 steps to take if you represent a creditor in a foreclosure.
Counties hire collectors to recover unpaid, decades-old fines By Matthew Hector January 2016 LawPulse, Page 12 Illinois counties are chasing down unpaid fines from as far back as the mid-80s. Critics say the practice is unfair and counterproductive.
They said my client paid in full - can they take that back? July 2015 Article, Page 28 Q. The finance company sent my client the title to her truck, along with the contract stamped "paid in full." A year later they're saying they made a mistake. Can I hold them to their release?
Judgments in favor of unlicensed debt collection agencies are not void May 2015 Illinois Law Update, Page 16 On February 27, 2015, the Illinois Supreme Court held that a judgment in favor of an unlicensed debt collection agency is not void. A judgment is only void, the court noted, if it is entered without jurisdiction.
7th Circuit case shakes up the creditor’s bar By Matthew Hector December 2014 LawPulse, Page 566 Contrary to longstanding practice, collection cases must now be filed in the Cook County municipal district court where the debtor lives or the contract was signed.
Nullity rule for unregistered collection agencies is no longer absolute November 2014 Illinois Law Update, Page 524 On September 10, 2014, the First District Appellate Court of Illinois upheld a foreclosure and sale even though the plaintiff agency was not registered under the Collection Agency Act, 225 ILCS 425/1 et seq., because the defendants failed to show the Act applied to the plaintiff.
Defending Confession Judgment Cases in Illinois By Andrew R. Schwartz October 2014 Article, Page 494 A confession of judgment lets a creditor take a judgment without notice to the debtor. Here are strategies for representing commercial debtors facing these judgments.
Luxury Tax: Collecting from High-Income Judgment Debtors By Andrew N. Plasz June 2014 Article, Page 294 The author argues that wages used for investments or to purchase luxuries should be subject to collection by a judgment creditor.
New citation procedures make enforcing debt-collection judgments easier By Adam W. Lasker October 2013 LawPulse, Page 498 A new law reduces the role of sheriffs in collection proceedings and increases the power of courts and practitioners to enforce judgments.
Forcing Lenders to Comply with the Home Affordable Modification Program By Andrew J. Hawes June 2013 Article, Page 308 The seventh circuit rules that borrowers can sue lenders for state law breach of contract and other claims related to a trial period plan payment agreement.
Judgment and memorandum of judgment expire simultaneously May 2013 Illinois Law Update, Page 228 On February 26, 2013, the third district appellate court held that a judgment creditor must revive its judgment and file a memorandum of revived judgment within seven years from the date the original judgment was entered or previously revived.
Mortgage Fraud and E&O Insurance: Making Sure There’s Something to Sue For By Kurt B. Drain May 2013 Article, Page 250 Too often, lenders win mortgage-fraud judgments against defendants who turn out to be judgment proof. The solution? Ensure that mortgage brokers have adequate E&O coverage.
A New Law Overturns Cypress Creek By Joseph R. Fortunato April 2013 Column, Page 204 A new law puts contractors with secured liens ahead of lenders.
New supreme court rules promote foreclosure mediation By Adam W. Lasker April 2013 LawPulse, Page 170 New consumer-friendly rules, effective May 1, are designed to make the foreclosure process more fair and reduce the backlog of cases.
Protecting Settling Plaintiffs When a Defendant Goes Bankrupt By Christopher B. Lega April 2013 Article, Page 200 Most settlement agreements ignore an important risk - that the defendant will file for bankruptcy shortly after settlement. Here's how to protect plaintiffs.
No More ‘Debtors’ Prison’: Greater Notice, Protections for Judgment Debtors By Kelly M. Greco and Stephanie R. Hammer March 2013 Article, Page 134 A recently enacted law gives debtors better notice of collection proceedings and protects their rights once they have begun.
Debtor’s life insurance policy is exempt personal property if its proceeds are directed to a trust for the benefit of a husband, wife, or dependent. PA 097-1030 January 2013 Illinois Law Update, Page 16 The Code of Civil Procedure is amended by extending a debtor's exempt personal property to include some life insurance policies, endowment policies, and annuities if the proceeds are directed into a particular kind of trust. 735 ILCS 5/12-1001.
Credit Agreements Act does not bar debtor challenge to affirmative defense October 2012 Illinois Law Update, Page 520 On July 18, 2012, the third district appellate court held that the Illinois Credit Agreements Act ("Credit Agreements Act") did not bar a debtor from contesting the accuracy of a commercial security agreement when the document was introduced by a creditor as an affirmative defense.
Credit Card Collection Suits: Life Preservers for Illinois Consumers By Edward J. Halper and Rachel L. Schaller July 2012 Article, Page 360 Recent case law, consumer protection statutes, and the hearsay rule give Illinois consumers an array of legal and procedural defenses in credit card collection suits.
Bill would require personal service for debtors By Adam W. Lasker June 2012 LawPulse, Page 286 Pending legislation would require that debtors get personal service, not merely notice by mail, before courts begin key legal processes that could put them behind bars.
Getting Debtor Names Right Under the UCC By Michelle Nijm June 2012 Column, Page 332 It’s harder than you think, but pending legislation would ease the burden.
Are Inherited IRAs Exempt from Creditors in Bankruptcy? By Justin F. Polach December 2011 Article, Page 628 Standard IRAs are exempt in bankruptcy and thus unavailable to creditors. But what if the debtor inherited the IRA account - is it likewise exempt? A look at the evolving case law.
Creditors Are Not Freeloaders: The Common Fund Doctrine Does Not Apply to Hospital Lienholders By Robert D. Kreisman November 2011 Article, Page 568 Wendling holds that hospital lienholders are creditors, not third-party beneficiaries of the plaintiff's lawsuit, and thus not required to pay attorney fees under the common fund doctrine.
Remedies for Abusive Debt Collection: An Illinois Lawyer’s Guide By Jeremy A. Gogel July 2011 Article, Page 358 An overview of penalties available under federal and state law for abusive collection techniques.
Estop that Lawsuit: Judicial Estoppel and the Bankruptcy Debtor-Turned-Plaintiff By Christopher B. Lega May 2011 Article, Page 250 Judicial estoppel can derail a plaintiff who filed for bankruptcy but then brought a lawsuit he failed to reveal in the bankruptcy case.
Life Insurance Proceeds Are Exempt From Creditors - Or Are They? By Thomas A. Pasquesi and Thomas M. Badenhausen May 2011 Article, Page 254 The law exempts life insurance policy proceeds from the claims of a decedent-insured's creditors. But exceptions give creditors an opportunity to recover.
Confessions of an Illinois Judgment By Michael G. Cortina November 2010 Article, Page 578 As more loans go bad, banks looking to collect from defaulting borrowers are turning to judgments by confession. Here's how they work.
Tenancy by the entirety gets a boost By Helen W. Gunnarsson September 2010 LawPulse, Page 446 Spouses no longer must choose between the protection against creditors provided by tenancy by the entirety and the estate-planning advantages of a revocable inter vivos trust.