Saturday, January 21, 2012

Citations to Discover Assets & Importance of Attorney Representation

I was in court this past Friday and saw a couple that reminded me of many clients that I have met and talked with. They were a realtor (wife) and her husband seemed like he was retired or near retirement age. The couple had a judgment against them by their local community bank and wanted to pay their bills and do right. However, they simply are struggling financially and this judgment threatens their family's financial viability and retirement. Quite frankly, satisfying a judgment is often times difficult because paying on it means your family may not have the money to pay your rent, mortgage, or pay basic necessities.

In particular, this debtor had stock and a 2007 car. The creditor's attorney asked the Judge for a turnover order, which is a court order that says that certain items are not exempt assets. The Judge granted the creditor's attorneys request despite the debtor who was a self-employed realtor pleading that she needed her car to make a living and wanted 30 days to get an attorney. The Judge denied her request and granted the creditor's attorney with his request. The main point here is time may not be on your side, which is often the case in Citation to Discover Asset's proceedings. Often times, the creditor's attorney will seize your bank account and other assets by surprise and you will lose that asset. If you claim your exemptions or have good counsel, advanced planning allows you to protect your assets. In this lady's example, she did not use her $4,000 personal property exemption or her exemption for her car. If she claimed these exemptions, the creditor's attorney may not have an incentive to seize her car. A 2007 used car may be worth greater than $6,000, but I am not sure. Thus, by the time, the creditor's attorney pays the expenses, possibly, it is not worth it to sell this lady's car. But, the debtor never used her exemption and the Judge railroaded her. Yes, the Judge railroaded this lady because he did not inform her that she may have certain exemption rights under federal and/or state law or give her something that explained her legal rights. This was an injustice in my opinion.

Second, the creditor's attorney also asked to get the lady's 2011 tax refund, which he estimated would be $13,000 based upon previous year's tax returns. Hence, her taxes had not been filled out yet, but the Judge granted the creditor's attorney request neverthless. In my opinion, if this debtor had an attorney standing up for her, this would not have occured. First, the taxes was not a present issue because her taxes were not done, which means that getting the Citation to Discover Asset's dismissed means that this lady's tax refund would have been protected (or most likely). Effective legal counsel could have fought for this lady and this couple and protected her legal rights. Judges act when they know you do not know better in part because they are being realistic. Unfortunately, being realistic does not serve you or your family well. Effective legal representation may have gave this realtor a car to make income. Without her car, this realtor would have a tough time making income. Without income, how does one live.

In conclusion, legal representation at a Citation to Discover Asset's Proceeding is crucial. Sean Robertson is an attorney that concentrates in asset protection, distressed business planning, and Citations to Discover Asset's Proceedings in the counties of Cook, Dupage, and Will Counties.

Sean Robertson is Managing Partner of Robertson Law Group, LLC, which is based in downtown Chicago at 35 East Wacker Drive, Suite 935, Chicago, Illinois 60601. Our legal fees are reasonable and we ask for reasonable retainers. We can be reached at (312)854-7102 Our website is www.RobertsonLawGroup.com.

Keywords: Citation to Discover Assets, Circuit Court of Cook County, breach of contract litigation, default judgment Citations to Discover Assets, debtor exemption rights bankruptcy Illinois.

1 comment:

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