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Sullivan v. J & D Plumbing, Inc.

United States District Court, Seventh Circuit

May 29, 2013

JAMES T. SULLIVAN, etc., et al., Plaintiffs,
v.
J & D PLUMBING, INC., and JD PLUMBING, INC., Magistrate Judge Young B. Kim Defendants.

MOTION FOR ENTRY OF JUDGMENT AGAINST JOHN E. DUNHAM JR.

REBECCA R. PALLMEYER, District Judge.

NOW COME Plaintiffs, JAMES T. SULLIVAN, etc., et al., by their attorneys, DOUGLAS A. LINDSAY, JOHN W. LOSEMAN, and BRIAN T. BEDINGHAUS, with ROETZEL & ANDRESS, LPA, of counsel, and move this Court pursuant to Fed.R.Civ.P. 69(a), Illinois Supreme Court Rule 277(h), and 735 ILCS 5/2-1402(f)(1) to enter Judgment against JOHN E. DUNHAM JR. ("Dunham"), president of Defendants, J & D PLUMBING, INC., and JD PLUMBING, INC., in the amount of $21, 420.23. In support hereof, Plaintiffs state:

1. On October 30, 2012, Judgment was entered in favor of Plaintiffs and against Defendants, J & D PLUMBING, INC., and JD PLUMBING, INC., jointly and severally, in the amount of $280, 638.82.

2. On March 4, 2013, Plaintiffs served J & D PLUMBING, INC., and JD PLUMBING, INC. with Citations to Discover Assets by service on its president, John E. Dunham Jr. True and correct copies of the Citations, Citation Notices, and completed Affidavits of Service are attached hereto as Exhibit A.

3. On April 17, 2013, Plaintiffs served a Citation to Discover Assets (Third Party) on FIRST MIDWEST BANK ("First Midwest"). A true and correct copy of the Citation, Citation Notice, and certified mailing returned receipt are attached hereto as Exhibit B.

4. In response to the Citation to First Midwest, Plaintiffs received copies of monthly statements for a checking account in the name of JD PLUMBING, INC, including copies of cancelled checks drawn on that account.

5. The First Midwest account statements reveal that $21, 420.23 was transferred from JD PLUMBING, INC.'s checking account after the date the Citation was served on JD PLUMBING, INC, INC. on March 4, 2013. True and correct copies of the March 2013 First Midwest checking account statement for JD PLUMBING, INC., and copies of the checks processed on or after March 4, 2013, are attached hereto as Exhibit C.

6. Specifically, the statements show following transfers occurred after service of the Citation:

Withdrawals/Debits:

Date Withdrawal/Debit Description 3/4/13 $107.29 Purchase at Menards 3/4/13 $100.00 ATM Withdrawal 3/4/13 $2.50 ATM surcharge 3/5/13 $375.00 Preauthorized Debit - Firstnet 3/8/13 $35.00 Overdraft fee for Check #5424 3/12/13 $35.00 Overdraft fee for Check #5424 3/12/13 $375.00 Preauthorized Debit - Firstnet 3/12/13 $375.00 Preauthorized Debit - Firstnet 3/14/13 $375.00 Preauthorized Debit - Firstnet 3/18/13 $200.00 ATM Withdrawal 3/25/13 $15.47 Purchase at vistaprint.com 3/26/13 $316.58 Preauthorized Debit - Golden Rule Ins. Prem.

Checks:

Date Check Amount Payee Cleared Number 3/5/13 5421 $5, 125.00 Brian Cann 3/6/13 5422 $364.39 Auburn Supply Co. 3/6/13 5423 $75.00 Cash 3/7/13 5424 $4, 800.00 John Dunham 3/11/13 5426 $1, 755.00 Denise Marcukaitis 3/11/13 5427 $1, 600.00 Cash 3/13/13 5425 $89.00 Guidance Recovery Service 3/13/13 5428 $3, 750.00 John Dunham 3/15/13 5430 $500.00 Cash 3/18/13 5431 $1, 050.00 Cash

See Exhibit C.

7. Illinois Supreme Court Rule 277(h) provides that "[a]ny person who fails to obey a citation... may be punished for contempt."

8. 735 ILCS 5/2-1402(f)(1) provides in relevant part:

The citation may prohibit the party to whom it is directed from making or allowing any transfer or other disposition or, or interfering with, any property not exempt from the enforcement of a judgment therefrom... belonging to the judgment debtor or to which he or she may be entitled to which may thereafter be acquired by or become due to him or her... The court may punish any party who violates the restraining provision of a citation as and for a contempt...

735 ILCS 5/2-1402(f)(1).

9. The president of a corporation who transfers or permits the transfer of corporate assets in violation of the prohibitions of a citation to discover assets is personally liable for the transfers. Divane v. Sundstrand Electric Co., Inc., No. 03 C 5728, 2004 WL 1323287 at *2 (N.D.Ill. June 14, 2004) (citing City of Chicago v. Air Auto Leasing Co., 297 Ill.App.3d 873 (1988)); see also Laborers' Pension Fund v. Dominic Jr., Inc., No. 02 C 3321, 2003 WL 21310282 * 2-4 (N.D.Ill. June 5, 2003).

10. Dunham violated the restraining provisions of the Citation by transferring and permitting the transfer of $21, 420.23 from the First Midwest checking account of JD PLUMBING, INC., after the date he was served with the Citation.

11. Plaintiffs request that judgment be entered against Dunham in the amount of $21, 420.23, which is the amount of the transfers made after service of the Citation.

12. As of May 29, 2013, after all payments have been applied, a total amount of $280, 947.06 remains due to Plaintiffs, which amount includes $280, 638.82 in judgment principal and $308.24 in judgment interest.

WHEREFORE, Plaintiffs, JAMES T. SULLIVAN, etc., et al., request the Court to enter judgment in favor of Plaintiffs and against JOHN E. DUNHAM JR. in the amount of $21, 420.23, and to award additional relief in favor of Plaintiffs as the Court deems appropriate.

EXHIBIT A

CITATION TO DISCOVER ASSETS

YOUR FAILURE TO APPEAR AS HEREIN DIRECTED MAY CAUSE YOU TO BE ARRESTED AND BROUGHT BEFORE THE COURT TO ANSWER TO A CHARGE OF CONTEMPT OF COURT, WHICH MAY BE PUNISHABLE BY IMPRISONMENT IN THE COUNTY JAIL.

YOU ARE REQUIRED TO DO THE FOLLOWING UPON RECEIVING THIS CITATION UNTIL FURTHER ORDER OF THE COURT IN ACCORDANCE WITH ILLINOIS SUPREME COURT RULE 277(f), OR UNTIL THIS CITATION IS DISMISSED BY THE COURT OR BY STIPULATION:

YOU ARE REQUIRED TO APPEAR at the offices of ROETZEL & ANDRESS, 20 South Clark Street, Suite 300, Chicago, Illinois, on March 14, 2013, at 2:00 p.m., to be examined under oath concerning the property or income of, or indebtedness due or owed to J & D PLUMBING, INC., and JD PLUMBING, INC. ("Judgment Debtors"). This Citation examination shall be conducted by deposition as provided by the rules of this Court for depositions.

YOU ARE REQUIRED TO PRODUCE at the offices of ROETZEL & ANDRESS, 20 South Clark Street, Suite 300, Chicago, Illinois, on or before March 7, 2013, all documents of every nature containing information concerning any assets, property, income of, or any indebtedness due or owed to the Judgment Debtors, including without limitation, documents reflecting the following (for the period from December 1, 2010, to the present, unless indicated otherwise):

(i) All accounts with any banking institution, savings and loan association, or credit union, certificates of deposit, money market and mutual fund accounts, trust accounts and funds, checking accounts, savings accounts, money market accounts, pension plans, and retirement accounts, whether held in the name of a Judgment Debtor or in a Judgment Debtor's name with another person or company, including ...

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