NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
2021 IL App (3d) 200011-U
Order filed February 18, 2021 ____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
JEFFERSON CAPITAL SYSTEMS, LLC, ) Appeal from the Circuit Court ) of the 14th Judicial Circuit, Plaintiff-Appellee, ) Rock Island County, Illinois. ) v. ) Appeal No. 3-20-0011 ) Circuit No. 18-AR-74 VAN S. GARRETT, ) ) Defendant-Appellant. ) Honorable Carol M. Pentuic, ) Judge, Presiding. ____________________________________________________________________________
JUSTICE SCHMIDT delivered the judgment of the court. Justices Holdridge and Lytton concurred in the judgment.
ORDER
¶1 Held: The circuit court erred in denying defendant’s motion to quash but did not err in denying defendant’s request for relief under 735 ILCS 5/12-817 (West 2018).
¶2 Plaintiff, Jefferson Capital Systems, LLC (JCS), sought to enforce a judgment against
defendant, Van Garrett, through a wage deduction. Garrett moved to quash the summons issued
upon his employer claiming JCS failed to comply with the requirements of the statute. He also
sought damages alleging JCS wrongfully caused the summons to issue. The circuit court denied the motion to quash and found the summons was not wrongfully issued. We affirm in part, reverse
in part, and remand with directions.
¶3 I. BACKGROUND
¶4 JCS obtained an ex parte default judgment through arbitration proceedings against Garrett
in the amount of $18,627.70. JCS pursued the default judgment by filing for a wage deduction. A
wage deduction summons issued and was served upon Garrett’s employer. Through counsel,
Garrett moved to quash the wage deduction summons. He also sought damages, costs, and attorney
fees from JCS for wrongfully causing a summons to issue pursuant to section 12-817 of the Code
of Civil Procedure (Code) (735 ILCS 5/12-817 (West 2018)).
¶5 Garrett filed a brief in support of his motion. He argued that wage deduction proceedings
are in derogation of the common law and require strict compliance before obtaining a remedy.
Under the statutory scheme, the judgment creditor seeking the wage deduction summons must first
certify in an affidavit that the wage deduction notice was mailed by first class mail to the judgment
debtor at their last known address. See id. § 12-805. Garrett then directed the court’s attention to
the “affidavit of wage deduction summons” filed in this matter by JCS. Specifically, the
certification of mailing states that under penalty of law as provided by section 1-109 of the Code
(id. § 1-109), counsel for JCS certified that he “mailed by regular first-class mail a copy of the
Wage Deduction Notice to Defendant at the address shown above[.]” Directly above the
certification was a field labeled “Defendant’s Address.” The field was blank.
¶6 The court held a hearing on the motion. Garrett reiterated his arguments advanced in the
supporting brief. JCS admitted that the address field above the certification was blank but argued
that because Garrett’s last known address appeared on a prior page the error was “corrected.” In
regard to the wrongful issuance of the summons, JCS argued that the omission of the address did
-2- not make the issuance wrongful. In light of what JCS characterized as a lack of appellate court
clarification on the subject, JCS instead argued such a characterization was reserved for situations
where there was no judgment against the defendant, the judgment was expired or overturned, or in
the event the defendant had filed for bankruptcy.
¶7 At the conclusion of arguments, the circuit court issued an oral ruling. The court found that
there was a valid underlying judgment against Garrett and the argument that JCS wrongfully issued
the summons was “spurious.” This was not a case where there was a bankruptcy or a satisfaction
of the underlying judgment against the defendant.
¶8 When deciding whether to quash the summons, the court stated that there was a proof of
service in the file showing Garrett was served with the wage deduction notice. Further, regardless
of the certification error, even if the court granted the motion to quash JCS would just refile and
correct the error. Since the last known address of Garret was present on a different page, any error
was “de minimis.”
¶9 This appeal followed.
¶ 10 II. ANALYSIS
¶ 11 Before this court, Garrett repeats the same arguments as below. First, that a wage deduction
is in derogation of the common law, ergo strict compliance with the statute is required. Second,
the summons was wrongfully issued entitling him to recover costs, fees, and damages. JCS
has not filed a responsive brief in this matter. As such, we review this appeal pursuant to the
standards set forth in First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128
(1976). In this matter, the record is simple and the claimed error is such that we can easily decide
the matter without the aid of an appellee’s brief. Id. at 133.
-3- ¶ 12 Initially, we note that we have scoured the record for the proof of service mentioned by the
lower court evidencing Garrett received the wage deduction notice. However, the record fails to
disclose such service. The only proof of service upon Garrett is for the initial arbitration
proceedings that resulted in a default judgment. Then there is an affidavit of summons evidencing
service upon Garrett’s employer, not Garrett. We are unable to find the proof of service the court
relied on and, of course, JCS offers no direction. As a result, we must find the court’s statement
that Garrett was served with the wage deduction notice erroneous.
¶ 13 We now turn to Garrett’s argument that the failure to quash the summons was error. The
wage deduction scheme of this state is a creature of statute. First Finance Co. v. Pellum, 62 Ill. 2d
86, 91 (1975). To maintain an action under the scheme, there must be a valid judgment and the
judgment creditor must meet all of the requirements set forth in the statute. Collection
Professionals, Inc. v. Logan, 296 Ill. App. 3d 959, 963 (1998). Being in derogation of the common
law, the statute is strictly construed and strict compliance is required. See, e.g., In re Illinois Bell
Switching Station Litigation, 161 Ill. 2d 233, 240 (1994) (“Statutes in derogation of the common
law are to be strictly construed in favor of persons sought to be subjected to their operation.”);
Westcon/Dillingham Microtunneling v. Walsh Construction Co. of Illinois, 319 Ill. App. 3d 870,
877 (2001) (interpreting statutory remedies under the Mechanics Lien Act and finding “because
the rights created are statutory and in derogation of common law, the technical and procedural
requirements necessary for a party to invoke the protection of the Act must be strictly construed”).
¶ 14 In obtaining a wage deduction order, the Code provides for the issuance of a summons
against the employer. 735 ILCS 5/12-805 (West 2018). Section 12-805 prescribes the procedure
one must follow for a wage deduction summons to issue. Among other requirements, there must
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NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
2021 IL App (3d) 200011-U
Order filed February 18, 2021 ____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
JEFFERSON CAPITAL SYSTEMS, LLC, ) Appeal from the Circuit Court ) of the 14th Judicial Circuit, Plaintiff-Appellee, ) Rock Island County, Illinois. ) v. ) Appeal No. 3-20-0011 ) Circuit No. 18-AR-74 VAN S. GARRETT, ) ) Defendant-Appellant. ) Honorable Carol M. Pentuic, ) Judge, Presiding. ____________________________________________________________________________
JUSTICE SCHMIDT delivered the judgment of the court. Justices Holdridge and Lytton concurred in the judgment.
ORDER
¶1 Held: The circuit court erred in denying defendant’s motion to quash but did not err in denying defendant’s request for relief under 735 ILCS 5/12-817 (West 2018).
¶2 Plaintiff, Jefferson Capital Systems, LLC (JCS), sought to enforce a judgment against
defendant, Van Garrett, through a wage deduction. Garrett moved to quash the summons issued
upon his employer claiming JCS failed to comply with the requirements of the statute. He also
sought damages alleging JCS wrongfully caused the summons to issue. The circuit court denied the motion to quash and found the summons was not wrongfully issued. We affirm in part, reverse
in part, and remand with directions.
¶3 I. BACKGROUND
¶4 JCS obtained an ex parte default judgment through arbitration proceedings against Garrett
in the amount of $18,627.70. JCS pursued the default judgment by filing for a wage deduction. A
wage deduction summons issued and was served upon Garrett’s employer. Through counsel,
Garrett moved to quash the wage deduction summons. He also sought damages, costs, and attorney
fees from JCS for wrongfully causing a summons to issue pursuant to section 12-817 of the Code
of Civil Procedure (Code) (735 ILCS 5/12-817 (West 2018)).
¶5 Garrett filed a brief in support of his motion. He argued that wage deduction proceedings
are in derogation of the common law and require strict compliance before obtaining a remedy.
Under the statutory scheme, the judgment creditor seeking the wage deduction summons must first
certify in an affidavit that the wage deduction notice was mailed by first class mail to the judgment
debtor at their last known address. See id. § 12-805. Garrett then directed the court’s attention to
the “affidavit of wage deduction summons” filed in this matter by JCS. Specifically, the
certification of mailing states that under penalty of law as provided by section 1-109 of the Code
(id. § 1-109), counsel for JCS certified that he “mailed by regular first-class mail a copy of the
Wage Deduction Notice to Defendant at the address shown above[.]” Directly above the
certification was a field labeled “Defendant’s Address.” The field was blank.
¶6 The court held a hearing on the motion. Garrett reiterated his arguments advanced in the
supporting brief. JCS admitted that the address field above the certification was blank but argued
that because Garrett’s last known address appeared on a prior page the error was “corrected.” In
regard to the wrongful issuance of the summons, JCS argued that the omission of the address did
-2- not make the issuance wrongful. In light of what JCS characterized as a lack of appellate court
clarification on the subject, JCS instead argued such a characterization was reserved for situations
where there was no judgment against the defendant, the judgment was expired or overturned, or in
the event the defendant had filed for bankruptcy.
¶7 At the conclusion of arguments, the circuit court issued an oral ruling. The court found that
there was a valid underlying judgment against Garrett and the argument that JCS wrongfully issued
the summons was “spurious.” This was not a case where there was a bankruptcy or a satisfaction
of the underlying judgment against the defendant.
¶8 When deciding whether to quash the summons, the court stated that there was a proof of
service in the file showing Garrett was served with the wage deduction notice. Further, regardless
of the certification error, even if the court granted the motion to quash JCS would just refile and
correct the error. Since the last known address of Garret was present on a different page, any error
was “de minimis.”
¶9 This appeal followed.
¶ 10 II. ANALYSIS
¶ 11 Before this court, Garrett repeats the same arguments as below. First, that a wage deduction
is in derogation of the common law, ergo strict compliance with the statute is required. Second,
the summons was wrongfully issued entitling him to recover costs, fees, and damages. JCS
has not filed a responsive brief in this matter. As such, we review this appeal pursuant to the
standards set forth in First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128
(1976). In this matter, the record is simple and the claimed error is such that we can easily decide
the matter without the aid of an appellee’s brief. Id. at 133.
-3- ¶ 12 Initially, we note that we have scoured the record for the proof of service mentioned by the
lower court evidencing Garrett received the wage deduction notice. However, the record fails to
disclose such service. The only proof of service upon Garrett is for the initial arbitration
proceedings that resulted in a default judgment. Then there is an affidavit of summons evidencing
service upon Garrett’s employer, not Garrett. We are unable to find the proof of service the court
relied on and, of course, JCS offers no direction. As a result, we must find the court’s statement
that Garrett was served with the wage deduction notice erroneous.
¶ 13 We now turn to Garrett’s argument that the failure to quash the summons was error. The
wage deduction scheme of this state is a creature of statute. First Finance Co. v. Pellum, 62 Ill. 2d
86, 91 (1975). To maintain an action under the scheme, there must be a valid judgment and the
judgment creditor must meet all of the requirements set forth in the statute. Collection
Professionals, Inc. v. Logan, 296 Ill. App. 3d 959, 963 (1998). Being in derogation of the common
law, the statute is strictly construed and strict compliance is required. See, e.g., In re Illinois Bell
Switching Station Litigation, 161 Ill. 2d 233, 240 (1994) (“Statutes in derogation of the common
law are to be strictly construed in favor of persons sought to be subjected to their operation.”);
Westcon/Dillingham Microtunneling v. Walsh Construction Co. of Illinois, 319 Ill. App. 3d 870,
877 (2001) (interpreting statutory remedies under the Mechanics Lien Act and finding “because
the rights created are statutory and in derogation of common law, the technical and procedural
requirements necessary for a party to invoke the protection of the Act must be strictly construed”).
¶ 14 In obtaining a wage deduction order, the Code provides for the issuance of a summons
against the employer. 735 ILCS 5/12-805 (West 2018). Section 12-805 prescribes the procedure
one must follow for a wage deduction summons to issue. Among other requirements, there must
be “a certification by the judgment creditor or his attorney that, before filing the affidavit, the wage
-4- deduction notice has been mailed to the judgment debtor by first class mail at the judgment debtor’s
last known address[.]” Id. Once the judgement creditor satisfies the requirements of the statute, the
clerk of the court issues a summons upon the employer. Id.
¶ 15 Here, JCS failed to satisfy a statutory requirement by certifying that it mailed the wage
deduction notice to Garrett at his last known address. As noted, the certification stated JCS mailed
the notice to the address listed above. Above the certification line is a blank field where Garrett’s
address should be. Given the failure to comply with statutory strictures, the lower court erred in
denying the motion to quash the wage deduction summons. JCS failed to provide any evidence
that it actually mailed the notice to Garrett or that he had received the notice. On the facts of this
case, JCS failed to comply with the statute and the record does not support an argument for
substantial compliance. See Walker Process Equipment v. Advance Mechanical Systems, Inc., 282
Ill. App. 3d 452, 455 (1996) (noting that courts have been willing to consider substantial
compliance arguments despite strict construction of the procedural provisions of the Mechanics
Lien Act where a technical construction would undermine its purposes). Failure to comply with a
requirement as laid out in the statute was not de minimis.
¶ 16 As a public policy consideration, allowing the practice of filing incomplete documentation
in order to obtain a wage deduction summons places the employer of the judgment debtor in an
unenviable position. An employer should not have to second guess whether the judgment creditor
satisfied the procedural requirements to obtain the summons. We need not add to the worries of
employers in this state by requiring they speculate whether a facially deficient wage deduction
notice can serve as a basis for a wage deduction summons.
¶ 17 Nevertheless, we agree with the lower court’s ruling that these circumstances are
insufficient to constitute a wrongful issuance of summons. JCS was correct in its assertion below
-5- that the case law defining what constitutes a wrongful issuance of summons is scarce. The statute
on point lays out that,
“If any person wrongfully causes summons to issue for a deduction order,
he or she shall be liable to the employee and the employer for all damages
occasioned by such action including reasonable attorney’s fees, which
damages or attorney’s fees may be proved in the same action in which the
summons was wrongfully issued.” 735 ILCS 5/12-817 (West 2018).
¶ 18 In this case, there is a valid underlying judgment on which JCS is attempting to collect.
“[I]t is clear that an objective of the statute is protection of judgment debtors from deductions of
wages exceeding that necessary to satisfy the judgments against them.” Wiley v. Howard, 180 Ill.
App. 3d 721, 723 (1989). Garrett does not argue that he has satisfied the judgment against him,
that he has filed for bankruptcy, or that he is not the individual whom the underlying judgment is
pending against. The issuance of a summons in this case is not unfair nor would it work an
injustice. upon Garrett as he owes the debt. JCS is entitled to pursue a wage deduction as an
enforcement of the judgment against Garrett. We do not believe the circumstances as presented
suffice to obtain the relief sought by Garrett under section 12-817.
¶ 19 Accordingly, we affirm the denial of relief sought for the wrongful issuance of summons,
reverse the denial of the motion to quash, and remand to the trial court with directions to quash the
summons.
¶ 20 III. CONCLUSION
¶ 21 For the foregoing reasons, we affirm in part and reverse in part the judgment of the
circuit court of Rock Island County. We remand with directions.
¶ 22 Affirmed in part and reversed in part.
-6- ¶ 23 Cause remanded with directions.
-7-