without notice and hearing. In Sniadach v. Family Finance
Corp., supra, the Supreme Court established the requirement
that debtors be provided with notice and hearing prior to
prejudgment garnishment. The Court noted that garnishment of
wages imposes a "tremendous hardship on wage earners with
families to support." 395 U.S. at 340, 89 S.Ct. at 1822. The
Court focused on the leverage of the creditor on the wage
earner, the inadequate percentage of wages generally exempt
from garnishment, and the collection costs typically imposed on
the debtor to conclude that prejudgment garnishment "may as a
practical matter drive a wage earning family to the wall." Id.
at 341-42, 89 S.Ct. at 1822. In light of the substantial
taking, the Court held that absent notice and hearing prior to
garnishment, prejudgment garnishment violates the due process
clause. Thus to the extent that the prejudgment attachment
cases are relevant to the issue of what notice is required
prior to execution of confessed judgment, Sniadach renders
those cases irrelevant here. We hold that cognovit debtors are
entitled to notice and an opportunity to challenge the waiver
of notice and hearing prior to garnishment of their wages.
Thus the opportunity to reopen the judgment after
garnishment under Section 72 or Rule 276 comes too late.
Moreover, regardless of the nature of the challenge to the
judgment that the debtor may make at the garnishment hearing,
the debtor receives no notice of that hearing. Therefore the
only remaining hope for the statutory scheme is the notice
provided prior to the § 82 confirmation hearing. If this notice
is constitutionally inadequate, the Illinois statutory scheme
violates the due process clause.
The notice provision of the challenged statute requires one
attempt at personal service, after which the summons may be
served on the debtor's employer, who is under no obligation to
notify the debtor. Moreover, a copy of the complaint
underlying the judgment need not accompany the summons.
Plaintiffs have noted the practical problems arising from
service on a debtor's employer. The likelihood that an
employer will not notify the employee of the action is
increased by virtue of the great size and corporate complexity
of many employers. One class member, for example, works in Elk
Grove Village, Illinois. The alias summons was served on the
employer's registered agent, as permitted by the statute, in
Chicago. The agent, following its usual procedure, forwarded
the summons to the corporation's main office in Stamford,
Connecticut. The debtor never received notice, nor was notice
ever sent to the employer's office in Elk Grove Village.
See affidavit of Mark Holbert. Defendants have been content to
argue that plaintiffs are not entitled to notice and thus have
not asserted the adequacy of the notice actually provided.*fn9
Due process requires notice reasonably calculated to apprise
the defendant of the action against him. Mullane v. Hanover
Bank & Trust Co., supra. The Mullane Court noted that "the
means employed must be such as one desirous of actually
informing the absentee might reasonably adopt to accomplish
it." Id. 339 U.S. at 315, 70 S.Ct. at 657. If conditions do not
permit that kind of notice, the form used should not be
substantially less likely to inform the defendant than any
other feasible alternative. Id. at 315, 70 S.Ct. at 657.
In Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed.
1091 (1927), the Supreme Court upheld the constitutionality of
a Massachusetts statute which permitted service of a
nonresident motorist, in an action arising from an accident in
Massachusetts, on the Secretary of State. The statute required
the Secretary of State to send a copy of the service to the
defendant by registered mail. The Court sustained the statute's
presumption that by using Massachusetts highways, the motorist
impliedly authorized service on the Secretary of State
as the nonresident motorist's agent. A year later, in
Wuchter v. Pizzuti, 276 U.S. 13, 48 S.Ct. 259, 72 L.Ed. 446
(1928), the Court struck down a similar statute that did not
require the state agent or the plaintiff to inform the
defendant of the action. The Court noted that such a
requirement had been one of the linchpins of its decision in
Hess. Id. at 19, 48 S.Ct. at 260.
Given the problems inherent in serving notice intended for
an employee on an employer who may have hundreds or even
thousands of employees, we do not believe that the notice
provided here is adequate. The means of service most likely to
reach the debtor would be personal service, but the statute
permits abandonment of that form of service after one attempt.
Moreover, the debtor has no assurance that the employer, the
recipient of the secondary form of notice, will inform its
employee of the action. Clearly, an employer is more likely to
inform its employee of an action than is a secretary of state
to inform a resident of another state. But in the nonresident
motorist cases, the defendant has impliedly consented to
service on the secretary of state. The debtor here has made no
such implied consent. Moreover, personal service was not
possible, as a constitutional matter, in the nonresident
motorist cases. No constitutional bar exists here, however. We
cannot see any practical problems preventing either continued
efforts at personal service or a requirement that the employer
notify the employee of the action.*fn10 Therefore we hold
that plaintiffs are entitled to a declaratory judgment to the
effect that the notice provided by Ill.Rev.Stat., ch. 62,
§ 82 is constitutionally insufficient.
Defendants' motion for summary judgment is denied.
Plaintiffs' cross motion for summary judgment is granted. A
draft declaratory judgment will enter in accord with the views
herein expressed when submitted by plaintiffs with notice to