United States District Court, N.D. Illinois, Eastern Division
FOX VALLEY LABORERS' HEALTH AND WELFARE FUND, THE FOX VALLEY LABORERS' PENSION FUND, and PAT Judgment Creditors,
HUGH HENRY CONSTRUCTION, INC. an Illinois corporation, TRACEY BIESTERFELDT, and MICHAEL GALLAGHER, individuals, Judgment Debtors, and GLOBAL BUILDERS, INC. Third-Party Citation Respondent.
Herz, Jr, One of Global Builders, Inc.'s Attorneys
THIRD PARTY CITATION RESPONDENT - GLOBAL BUILDERS,
INC.'S MOTION FOR DIRECTED FINDING
Citation Respondent GLOBAL BUILDERS, INC. ("Global"
or "Respondent") through its attorneys, Thomas G.
A. Herz, Jr. and the Law Office of Thomas Herz, Jr., presents
its Motion for Directed Finding. In support thereof Global
states as follows:
support of the Judgment Creditor's ("Judgment
Creditor" or "Petitioner") Motion for Turnover
of Assets it presented a single witness, Michael Gallagher,
and the Petitioner also presented various documentary
evidence. At the conclusion of the Petitioner's case in
chief the Respondent moved for a directed finding. Herein the
Respondent files its written Motion for Directed Finding
previously presented to the Court.
law provides that only after the citation is served does the
judgment become a lien on the judgment debtor's assets.
BMO Harris v. Joe Contarino, 2017 IL.App.2d 160371,
412 Ill.Dec. 168, 74 N.E.3d 1091 (2nd Dist. 2017).
Additionally, the Court further stated that the only relevant
inquiries are first, whether the judgment debtor possesses
assets that should be used to satisfy the judgment, and
second, whether a third party is holding assets of the
judgment debtor that should be used to satisfy the judgment.
Id. at 168.
Court further stated, "citations can reach only those
assets in the possession or control of the judgment
debtor." at 177.
law is crystal clear that the petitioner in an action for
turnover has the burden of proof to show that the respondent
possesses assets belonging to the judgment creditor.
Schak v. Blom, 334 Ill.App.3d 129, (1st
Dist. 2002). Further, the Illinois Code of Civil Procedure
does not authorize entry of a judgment against a third party
who does not possess assets of the judgment debtor.
Id. at 129.
instant case the Petitioner never adduced a single shred of
evidence as to the date that the Respondent was served with
the Third Party Citation to Discover Assets. Without a
service date the Judgment Creditor's Motion must
summarily fail for there is no legal date in which the
Citation Respondent must maintain the assets of the Judgment
being said the Petitioner attached the Affidavit of Michael
Gallagher to its Motion for Turnover. A copy of which is
attached hereto. Attached thereto was a list of items of
personal property that the Judgment Debtor claimed to own,
and claimed was the only property of the Judgment Debtor at
the Project on October 9, 2018. None of the items were
identified with any particularity such as serial numbers or
any other identifying characteristics.
Judgment Creditor presented Michael Gallagher as its only
witness. In support of his testimony Gallagher testified that
Hugh Henry Exhibit 0204 and 0205 was a list of personal
property owned by the Judgment Debtor which list was
identical to the list attached to the Affidavit of Michael
Gallagher. A copy of Exhibit 0204 and 0205 is attached
during the course of Gallagher's testimony he stated that
he returned to the Project on two occasions. First, he went
to the gate and was given personal property of the Judgment
Debtor. Second, he went to the Project and walked the Project
with William Lumino and retrieved additional items of
personal property of the Judgment Debtor. This leads the
Respondent to a single conclusion, the list provided by
Michael Gallagher does not identify the personal property in
the possession of the Respondent at the time that it was
served with the Third Party Citation to Discover Assets.
Michael Gallagher testified that he was last at the
construction site in the first week of December of 2018, and
that was when the last of the photographs was taken. In view
of the fact that the Third Party Citation to Discover Assets
was not issued by the Court until December 14, 2018, the
Judgment Creditor has offered no evidence as to what, if any,
personal property was in the possession of the Respondent
after the issuance of the Third Party Citation to Discover
Assets (The Court should note that, as stated above, the
critical date is the date the Respondent was served with the
Third Party Citation to Discover Assets, a date not known.).
reasons stated above, judgment should be entered in favor of
the Respondent as the direct result of the Judgment
Creditor's failure to sustain its burden of proof that
the Judgment Creditor owned all of the items of personal
property identified and that the items of personal property
were in the possession of ...