JUDGMENT CREDITOR'S MOTION FOR A CONTEMPT JUDGMENT AGAINST MARQUETTE BANK

MARVIN E. ASPEN, District Judge.

Judgment Creditor Administrative District Council 1 of Illinois of the International Union of Bricklayers and Allied Craftworkers, AFL-CIO (the "Union"), through its attorneys, respectfully moves for a judgment against Marquette Bank ("the Bank") in the amount of $16,368.34, plus reasonable attorneys' fees and costs, because of the Bank's violation of the restraining provisions of a third-party citation to discover assets served on it. In support of its motion, the Union states as follows:

1. On August 26, 2010, the Court entered judgment in favor of the Union and against Wesley Orlowski and Orlowski Company Inc. ("Judgment Debtors") in the amount of $101,686.90. To date, the Judgment Debtors have paid only $15,000.00 toward the judgment.

2. On April 131, the Union sent a third-party citation to discover assets to the Bank by certified mail, return receipt requested (the citation is attached as Exhibit A). As permitted by 735 ILCS 5/2-1402(f)(1), the citation prohibited the Bank from "making or allowing any transfer or other disposition of" Mr. Orlowski's assets "until the further order of the court" (Ex. A at 3). The Bank received the citation on April 16 (the return receipt showing that date is attached as Exhibit B).

3. In a citation deposition on June 23, Mr. Orlowski provided an account statement from the Bank showing a $16,368.34 "debit memo" to his account on April 16. Mr. Orlowski explained that this "debit memo" represented the Bank making a withdrawal from his account and applying that money to the balance of a mortgage upon the Bank's receipt of the citation. (The statement showing the "debit memo" is attached as Exhibit C. Relevant excerpts from the deposition transcript are attached as Exhibit D.)

4. In pertinent part, Rule 69(a) of the Federal Rules of Civil Procedure states:

5. Under Illinois law, the citation prohibited the Bank from transferring Mr. Orlowski's assets (Ex. A at 3), but the Bank ignored this prohibition and transferred Mr. Orlowski's account balance to itself. Accordingly, the Court should hold the bank in contempt and enter a judgment against the Bank in the amount of the property transferred, i.e., $16,368.34, as permitted by 735 ILCS 5/2-1402(f)(1).

6. The Bank has contended that it has a secured interest in the $16,368.34. However, in response to a request from the Union that the Bank substantiate this contention, the Bank has only provided documents which are missing pages, and the pages the Bank has provided do not show a secured interest in Mr. Orlowski's deposit accounts. The Union submits that it should be the Bank's burden to demonstrate whether it has any claim to the $16,368.34 that prevents that amount from being applied to the judgment. See 735 ILCS 5/2-1402(g). ("If it appears that any property, chose in action, credit or effect discovered, or any interest therein, is claimed by any person, the court shall, as in garnishment proceedings, permit or require the claimant to appear and maintain his or her right.").

7. Further, even if the Bank could demonstrate a security interest in the $16,368.34 superior to the Union's citation lien, that would not justify the Bank's unilateral action in transferring Mr. Orlowski's account balance to itself. Rather, a third party citation respondent must assert its secured interest in court and freeze the debtor's assets pending judicial determination. One CW, LLC v. Cartridge World N. Am., LLC, 661 F.Supp.2d 931, 937 (N.D. Ill. 2009). So the Bank acted in contempt of the citation's restraining provision even if it could establish a superior secured interest in the $16,368.34 account balance.

8. Any party who violates a citation freeze can be punished "as and for a contempt." 735 ILCS 5/2-1402(f)(1). This can include reasonable attorneys' fees and costs. Shales v. T. Manning Concrete, Inc., 847 F.Supp.2d 1102, 1118-20 (N.D. Ill. 2012). Accordingly, the Union requests that the Court award it reasonable attorneys' fees and costs, and direct the parties to follow the process provided for in Local Rules 54.1 and 54.3 to ascertain the precise amount.

WHEREFORE, the Administrative District Council 1 of Illinois of the International Union of Bricklayers and Allied Craftworkers, AFL-CIO respectfully requests that this Court enter a judgment in its favor against Marquette Bank in the amount of $16,368.34, plus reasonable attorneys' fees and costs, in the form of the attached proposed order or otherwise.

EXHIBIT A

THIS COURT HAS ISSUED A CITATION AGAINST MARQUETTE BANK. This Citation directs an agent of MARQUETTE BANK to appear before Josiah A. Groff, attorney for the Plaintiffs, at 8 South Michigan Avenue, Suite 1900, Chicago, Illinois 60603 on May 4,2015 at 3:00 p.m., to be examined under oath concerning the indebtedness owed to the Judgment Creditor.1 IF YOU FAIL TO APPEAR AS DIRECTED IN THIS NOTICE, YOU MAY 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.

The Citation was issued on the basis of ajudgment order entered in the above-captioned case on August 26, 2010, by Judge Grady against the Judgment Debtors Wesley Orlowski and Orlowski Company Inc. in favor of the Judgment Creditor in the amount of $101,686.90. To date, the Judgment Debtors have paid only $15,000,00 toward the judgment. On or after the date stated above, the court may compel the application of any discovered income or assets toward payment on the judgment.

You are commanded to produce at the examination:

all books, records and documents reflecting the assets and financial status of the Judgment Debtors Wesley Orlowski and Orlowski Company, Inc., including documents related to the properties at:

for the time period of January 1,2009 through the present, including:

YOU ARE PROHIBITED from making or allowing any transfer or other disposition of, or interfering with, any property not exempt from the enforcement of a judgment therefrom, a deduction order or garnishment, belonging to the judgment debtors or to which it may be entitled or which may thereafter be acquired by or become due to them, and from paying over or otherwise disposing of any moneys not so exempt which are due or to become due to the judgment debtors, until the further order of the court or the termination of the proceeding, whichever occurs first. You are not required to withhold the payment of any money beyond double the amount of the balance due on the judgment.

The amount of income or assets that may be applied toward the judgment is limited by Federal and Illinois law. THE JUDGMENT DEBTORS HAVE THE RIGHT TO ASSERT STATUTORY EXEMPTIONS AGAINST CERTAIN INCOME OR ASSETS OF A JUDGMENT DEBTOR WHICH MAY NOT BE USED TO SATISFY THE JUDGMENT IN THE AMOUNT STATED ABOVE;

THE JUDGMENT DEBTORS HAVE THE RIGHT AT THE CITATION HEARING TO DECLARE EXEMPT CERTAIN INCOME OR ASSETS OR BOTH. The judgment-debtors also have the right to seek a declaration at an earlier date by notifying the clerk in writing at the Office of the Clerk of the United States District Court for the Northern District of Illinois, Eastern Division, 219 South Dearborn Street, 20th Floor, Chicago, Illinois. When so notified, the Clerk of the Court will obtain a prompt hearing from the court and will provide the forms that must be prepared by the judgment-debtors or the attorney for the judgment debtors and sent to the judgment-creditors and judgment creditors' attorney regarding time and location of hearing. This notice may be sent by regular first class mail.

CERTIFICATION OF ATTORNEY

The Citation was issued on the basis of a judgment order entered in the above-captioned case on August 26,2010, by Judge Grady against the Judgment Debtors in favor of the Judgment Creditor in the amount of $101,686.90. To date, the Judgment Debtors have paid only $15,000.00 toward the judgment. I, the undersigned, certify to the Court, under penalties as provided by law pursuant to 735 ILCS 5/1-109 that all information stated herein is true.

CERTIFICATE OF SERVICE

I, Josiah A. Groff, an attorney, hereby certify that I will serve the attached Third-Party Citation To Discover Assets on the party listed below by certified mail, return receipt requested, on April 13, 2015:

EXHIBIT B

EXHIBIT C

EXHIBIT D

JUDGMENT AGAINST MARQUETTE BANK

This matter came before the Court on Judgment Creditor's Motion for a Contempt Judgment Against Marquette Bank, the Court has examined the Judgment Creditor's submissions and is fully informed. It appears that good cause exists for granting the Judgment Creditor's motion:

It is therefore ORDERED as follows:

1. Judgment is entered in favor of the Judgment Creditor, the Administrative District Council 1 of Illinois of the International Union of Bricklayers and Allied Craftworkers, AFL-CIO ("Union"), and against third-party citation respondent Marquette Bank in the amount of $16,368.34, pursuant to 735 ILCS 5/2-1402(f)(1). This judgment may be enforced pursuant to the Federal Rules of Civil Procedure and the practice and procedure of the Illinois law of execution of judgments.

2. Marquette Bank is found in contempt of the restraining provision of the third-party citation to discover assets served on it. Marquette Bank is ordered to pay the Union's reasonable attorneys' fees and costs in connection with Marquette Bank's violation. The parties are directed to comply with Local Rules 54.1 and 54.3 to ascertain the precise amount of attorneys' fees and costs.