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Fox Valley Laborers' Health and Welfare Fund v. Hugh Henry Construction, Inc.

United States District Court, N.D. Illinois, Eastern Division

October 9, 2019

FOX VALLEY LABORERS' HEALTH AND WELFARE FUND, THE FOX VALLEY LABORERS' PENSION FUND, and PAT Judgment Creditors,
v.
HUGH HENRY CONSTRUCTION, INC. an Illinois corporation, TRACEY BIESTERFELDT, and MICHAEL GALLAGHER, individuals, Judgment Debtors, and GLOBAL BUILDERS, INC. Third-Party Citation Respondent.

          Thomas Herz, Jr, One of Global Builders, Inc.'s Attorneys

          THIRD PARTY CITATION RESPONDENT - GLOBAL BUILDERS, INC.'S MOTION FOR DIRECTED FINDING

          Kennelly Judge.

         Third-Party 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:

         Argument

         In 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.

         Illinois 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.

         The Court further stated, "citations can reach only those assets in the possession or control of the judgment debtor." at 177.

         Illinois 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.

         In the 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 Debtor.

         That 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.

         The 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 hereto.

         However, 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.

         Further, 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.).

         For the 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 ...


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