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09/06/96 BANK MATTESON v. PATRICE BROWN AND RUFUS

September 6, 1996

BANK OF MATTESON, PLAINTIFF-APPELLEE,
v.
PATRICE BROWN AND RUFUS BROWN, D/B/A CWOM PUBLICATIONS, LOVE CATHEDRAL COMMUNITY CHURCH AND CLAUDE TIMMONS, DEFENDANTS (BEVERLY BANK, CITATION-RESPONDENT-APPELLANT).



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE EDWIN J. RICHARDSON, JUDGE PRESIDING.

Released for Publication October 4, 1996.

The Honorable Justice McNAMARA delivered the opinion of the court. Zwick, P.j., and Rakowski, J., concur.

The opinion of the court was delivered by: Mcnamara

JUSTICE McNAMARA delivered the opinion of the court:

Plaintiff, Bank of Matteson (Matteson), brought suit against defendants, Patrice and Rufus Brown, d/b/a CWOM Publications, Love Cathedral Community Church (Love Cathedral), and Claude Timmons. Following the entry of a default judgment against all defendants except Timmons, plaintiff commenced two supplementary proceedings against citation-respondent, Beverly Bank (Beverly), with respect to the assets of Love Cathedral. Beverly thereafter moved to vacate a turnover order entered against it in the first supplementary proceeding and moved to quash the second proceeding. Beverly argued that the underlying judgment was entered against fewer than all defendants and was not enforceable in the absence of a special finding under Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)). The trial court denied these motions. Beverly appeals.

Matteson filed its three-count verified complaint on October 5, 1994. Count I alleged the breach of a promissory note by defendants Patrice and Rufus Brown, d/b/a CWOM Publications. Count II alleged that CWOM presented to Matteson a dishonored negotiable instrument signed by Timmons and drawn on an account of Love Cathedral. Count III alleged that all defendants were unjustly enriched as a result of their actions.

The Browns and Love Cathedral were served with the verified complaint. As a result of their failure to appear or answer, a default judgment was entered against them. The trial court's order, dated December 12, 1994, stated:

"After hearing the evidence, the court finds for plaintiff Bank of Matteson and against defendants Patrice Brown, Rufus D. Brown, CWOM Publications, and Love Cathedral Community Church and assesses damages of $5067.88 plus fees of $1,000.

It is ordered that plaintiff recover from defendant [sic ] $6,067.88 and costs of suit."

Also on December 12, 1994, the trial court appointed a special process server to serve Timmons. Timmons subsequently filed an appearance and a motion to dismiss under section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 1992)). (As of the time the record on appeal was filed, that motion remained pending in the trial court).

On December 14, 1994, Matteson initiated supplementary proceedings to enforce the default judgment of December 12, 1994. Matteson filed a citation to discover assets against Beverly in connection with the property interests of Love Cathedral. Beverly's response indicated that it held the sum of $1,084.84 belonging to Love Cathedral. On January 12, 1995, the trial court entered a turnover order requiring Beverly to deliver those funds to Matteson. A satisfaction and release of the judgment was filed on February 7, 1995.

In June 1995, Matteson obtained leave of court to issue a second citation to Beverly with respect to the assets of Love Cathedral. The citation had a scheduled return date of July 13, 1995. Beverly did not appear on July 13, resulting in the trial court's entry of a conditional judgment in the amount of $5,681.26 against Beverly. On July 24, 1995, Beverly was served with a summons to confirm conditional judgment. Beverly thereafter filed its appearance and moved to quash the second citation and the summons to confirm conditional judgment. Beverly also moved to vacate the turnover order entered against it in the first supplementary proceeding. In support of both of these motions, Beverly argued that the underlying default judgment against Love Cathedral was not yet enforceable where it was entered against fewer than all defendants and the order lacked a finding that there was no just reason for delaying either enforcement or appeal or both under Supreme Rule 304(a). The trial court denied both of these motions on October 18, 1995.

On appeal, Beverly contends that the trial court erred in allowing Matteson to enforce the default judgment of December 12, 1994 in the absence of a special finding of enforceability under Rule 304(a).

Section 2-1402 of the Code of Civil Procedure (735 ILCS 5/2-1402 (West 1994)) provides the method by which a judgment creditor may begin supplementary proceedings against a third party who is thought to be in possession of assets belonging to a judgment debtor. Bank of Aspen v. Fox Cartage, Inc., 126 Ill. 2d 307, 533 N.E.2d 1080, 127 Ill. Dec. 952 (1989). Supreme Court Rule 277 prescribes the procedures by which this section is implemented. Bank of Aspen, 126 Ill. 2d at 313, 533 N.E.2d at 1083. Paragraph (a) of Rule 277 states that "[a] supplementary proceeding authorized by section 2-1402 of the Code of Civil Procedure may be commenced at any time with respect to a judgment which is subject to enforcement." 134 Ill. 2d R. 277(a). Section 2-1402 proceedings are unavailable to creditors until after judgment capable ...


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