JUDGMENT CREDITORS' MOTION FOR ENTRY OF CONDITIONAL JUDGMENT
SHEILA M. FINNEGAN, District Judge.
Judgement Creditors FOX VALLEY LABORERS' HEALTH AND WELFARE FUND ("Welfare Fund"), THE FOX VALLEY LABORERS' PENSION FUND ("Pension Fund") and PAT SHALES, administrator of the Funds, (collectively, "the Funds" or "Judgment Creditors"), through their attorneys, Dowd, Bloch, Bennett, Cervone, Auerbach & Yokich, respectfully move this Court for entry of a conditional judgment against KB Utility Services Corp. ("KB Utility"), pursuant to 735 ILCS 5/12-807 and Rule 69(a) of the Federal Rules of Civil Procedure. In support of this motion, the Funds state as follows:
1. The Funds brought this suit against Subsurface Underground Construction, Inc. ("Subsurface Underground") and Nickolson seeking relief for delinquent contributions under the Employee Retirement Income Security Act of 1974, Section 515, 29 U.S.C. § 1145 and Section 502(g)(2), 29 U.S.C. ¶ 1132(g)(2), and the Labor Management Relations Act, Section 301, 29 U.S.C. § 185.
2. On August 9, 2016, Subsurface Underground and Nickolson agreed to a judgment against Subsurface Underground in the amount of $254,672.98. (Agreed Judgment [Doc. No. 52]).
3. To date, Judgment Creditors have collected only $14,000.00 towards the judgment, leaving a balance of $240,672.98.
4. On October 28, 2016, the Funds obtained a judgment against Nickolson in the amount of $36,899.99, jointly and severally, with up to $36,899.99 of the judgment entered against Subsurface Underground, based on assets fraudulently transferred from Subsurface Underground to Nickolson.
5. To date, Nickolson has not paid any amount towards the judgment entered against him.
6. On October 13, 2016, the Funds deposed KB Utility pursuant to a Third-Party Citation to Discover Assets. During the deposition, KB Utility testified that Nickolson is an employee of KB Utility (excerpts of the deposition transcript are attached as Exhibit A). Ex. A at 11.
7. Based on KB Utility's testimony, the Funds obtained a wage deductions summons and notice issued to KB Utility (a copy of the wage deduction summons and notice to KB Utility is attached as Exhibit B). The summons was served on November 25, 2016 (a copy of the certified return receipts are attached as Exhibit C). Based on the timing of service, KB Utility was required to respond by December 20, 2016.
8. As of the filing of this motion, KB Utility has not answered the wage deductions summons. Pursuant to Illinois law, which applies in post-judgment collections in this case under Fed. R. Civ. P. 69(a):
If an employer fails to appear and answer as required . . ., the court may enter a conditional judgment against the employer for the amount due upon the judgment against the judgment debtor. A summons to confirm the conditional judgment may issue against the employer returnable not less than 21 nor more than 30 days after the date of issuance, commanding the employer to show cause why the judgment should not be made final.
735 ILCS 5/12-807(a).
9. Because KB Utility has failed to answer the wage deduction summons, the Funds request entry of a conditional judgment against KB Utility. The Funds will then obtain from the Clerk of the Court a Summons to Confirm Conditional Judgment, serve that Summons on KB Utility, and seek confirmation of the conditional judgment if KB Utility does not appear.
WHEREFORE, the Funds move the Court to issue a conditional judgment against KB Utility Services Corp., in the form of the attached proposed conditional judgment or otherwise, and a Summons to Confirm Conditional Judgment.
Respectfully submitted,
/s/Elizabeth L. Rowe
Elizabeth L. Rowe
One of the Judgment Creditors' Attorneys
J. Peter Dowd (#0667552)
Josiah A. Groff (#6289628)
William M. Kinney (#6286597)
Elizabeth L. Rowe (#6316967)
DOWD, BLOCH, BENNETT, CERVONE,
AUERBACH & YOKICH
8 South Michigan Avenue, 19th Floor
Chicago, Illinois 60603
(312) 372-1361
Exhibit A
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
FOX VALLEY LABORERS'
HEALTH AND WELFARE FUND,
PENSION FUND, and PAT
SHALES, Administrator of
the Funds,
Judgment Creditors,
-vs- No. 15 cv 9461
SUBSURFACE UNDERGROUND
CONSTRUCTION, INC, an
Illinois corporation,
Judgment Debtor,
KB UTILITY SERVICES,)
Third-Party Citation
Respondent.
The deposition of FRED BOSWELL, called for
examination, taken pursuant to the Federal Rules
of Civil Procedure of the United States District
Courts pertaining to the taking of depositions,
taken before KAREN A. FAZIO, CSR No. 84-1834, a
Notary Public within and for the County of Cook,
State of Illinois, and a Certified Shorthand
Reporter of said state, at 8 South Michigan Avenue,
19th Floor, Chicago, Illinois, on the 13th day of
October, A.D. 2016, commencing at 12:57 p.m.
PRESENT:
DOWD, BLOCH, BENNETT, CERVONE,
AUERBACH & YOKICH,
(8 South Michigan Avenue, 19th Floor,
Chicago, Illinois 60603,
(312) 372-1361), by:
MR. JOSIAH A. GROFF,
appeared on behalf of the Judgment
Creditors.
REPORTED BY: KAREN A. FAZIO, CSR
CSR NO. 84-1834
(WHEREUPON, the witness was duly
sworn.)
FRED BOSWELL,
called as a witness herein, having been first duly
sworn, was examined and testified as follows:
EXAMINATION
BY MR. GROFF:
Q. Mr. Boswell, could you state and spell
your name for the record?
A. It's Fred, F-R-E-D, Boswell,
B-O-S-W-E-L-L.
Q. And have you ever been deposed like this
before?
A. No.
Q. Okay. Then I'm going to go over a few
instructions for the record.
A. Okay.
Q. I'm going to ask a series of questions.
You're under oath, so you need to answer truthfully
to the best of your ability. We're making a
written record of the deposition, so you need to
answer with words, not by nodding or saying uh-huh
because the court reporter can't record whether
uh-huh is a yes or a no.
A. Okay.
Q. Please wait until I'm done asking a question before giving your answer. If you interrupt to give an answer, the court reporter will have trouble writing down who's saying which words. If you don't hear my question, please ask me to repeat it. If you don't understand my question, please ask me to rephrase it.
Do those instructions make sense?
A. Yes.
Q. Are you taking any drugs or medication today that would prevent you from hearing my questions and responding truthfully?
A. No.
Q. Would there be any other reason you couldn't testify fully and accurately today?
A. No.
Q. We're here for the deposition of KB Utility Services. Do you have a job title with KB Utility Services?
A. Not officially. I'm the manager I guess is the best way to call it. I have a silent owner who's my business partner.
Q. I'm sorry, a solid owner?
A. Silent. She doesn't deal with the day-to-day business.
Q. What's her name?
A. Kim Angerman.
Q. So as manager, are you an employee or an independent contractor?
A. Employee.
Q. Okay. You get a W-2?
A. Yes.
Q. All right. How long has KB Utility Services been around?
A. We started April, I believe. I'm not sure the exact date in April.
Q. Is KB Utility Services incorporated?
A. We are a corporation.
Q. What's the exact name of K B/AOU/TEUPLTS?
A. KB Utility Services Corporation.
Q. Okay. When did KB incorporate? In April?
A. April.
Q. I asked because I was having trouble locating it on the Secretary of State's listing.
Do you know if it's K.B?
1 A. It's KB together. Actually, I think I have one of my business cards. I think we incorporated out of Florida. She handled all of that.
Q. By "she" you mean Kim?
A. Kim. She has another business, so she knew. We go by KB US, but our official name is KB Utility Services.
MR. GROFF: Okay. I'm going to mark Exhibit 1.
(WHEREUPON, a certain document was
marked Exhibit No. 1, for
identification, as of 10-13-16.)
BY MR. GROFF:
Q. You got this document in the mail?
A. Yes.
MR. GROFF: Okay. And I'm going to mark
Exhibit 2 while we're on that subject.
(WHEREUPON, a certain document was
marked Exhibit No. 2, for
identification, as of 10-13-16.)
BY MR. GROFF:
Q. And this is the return receipt that you signed for it?
1 A. Yes, it is.
Q. That's your signature on there?
A. Yes, it is.
Q. Okay. And the stamp that says August 30, is that when you got this document — I'm sorry, when you got Exhibit 1 in the mail?
A. I believe so. I don't remember, to be honest.
Q. Okay. If you turn to Page 2 of this document, do you see the numbered list 1, 2 and 3?
A. Yes.
Q. Did you bring any documents with you today?
A. No, there are no written contracts between me and Subsurface or Bob Nickelson.
Q. Okay. Who else works for KB?
A. Bob does part-time. Bob Nickelson does part-time.
Q. Okay.
A. He does estimating for me.
Q. Okay.
A. And then I have another employee, Robert Martinez.
Q. Okay.
A. Robin Nickelson does part-time.
Q. Robin Nickelson?
A. Yes.
Q. Is that a relative of Bob?
A. That's his mother, yes.
Q. Okay.
A. She does filing and stuff for me.
Q. Okay.
A. On an as-needed basis.
Q. And what was Martinez's name?
A. Robert.
Q. Robert Martinez. Okay. What does he do?
A. He's a laborer.
Q. Okay. And anyone else?
A. That's it.
Q. Okay. Do you know someone named Matthew Sliwkowski, S-L-I-W-K-O-W-S-K-I?
A. I met him a couple of times.
Q. Does he have anything to do with KB?
A. No, he was tied in with Subsurface, and then we leased a truck from him.
Q. Okay. When did you meet him?
A. Oh, goodness. January, 2015 maybe.
Q. Okay. Where did you meet him?
A. In Elgin, at Subsurface's office.
Q. When did you first meet Bob Nickelson?
A. Late summer, early fall of 2014.
Q. Okay. And how did you meet him?
A. A friend of a friend.
Q. Okay. What were you doing before you were working for KB or before you started KB?
A. I worked at Subsurface.
Q. Okay.
A. I was a foreman there.
Q. Okay. How long were you working as a foreman at Subsurface?
A. I was there — I believe I started in May, and I went till January, February of this year.
Q. Okay. So May, you mean May, 2015?
A. Yes. I'm trying to think. I think it was May. I don't remember the exact start date, to be honest with you.
Q. And how do you know Kim Angerman?
A. That was Bob's girlfriend.
Q. Okay. And Kim — does Kim have a title with the company, like president or vice president?
A. She is president.
Q. Okay. And does she own all of the company?
A. She owns all the company.
Q. Okay. Is Bob Nickelson en employee of the company or independent contractor?
A. Employee of the company.
Q. Are there any other officers besides Kim?
A. No. We have never officially made me an officer.
Q. Okay. Nobody's vice president?
A. No. I'm supposed to be, but l've never signed the pagework.
Q. Okay.
A. Every time something's happened, I've had to go out of town.
Q. So you're planning to become vice president?
A. Yes, I plan to be, but I've never signed the paperwork to make it legal and official.
Q. Is there a current treasurer?
A. No.
Q. Is there any plan to make anyone treasurer?
A. No.
Q. What about secretary, is there a current secretary?
A. No.
Q. Any plan to make anyone secretary?
A. No. All our accounting is handled by the accounting firm.
Q. Is that Robert Tardella?
A. Yes.
Q. Are there any other — just to make sure, are there any other employees of KB Utility who we haven't talked about?
A. We've had a few come and go. We hired a guy in St. Louis, but he's temporary help.
Q. Okay.
A. So I don't know if you want to classify him as a full-time employee or not.
Q. When did he work for KB?
A. The last two weeks.
Q. Is he done working for KB now?
A. We're not sure now. If we pick up more work in St. Louis, he'll work for us. If we don't, then —
Exhibit B
THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
FOX VALLEY LABORERS' HEALTH AND
WELFARE FUND, THE FOX VALLEY
LABORERS' PENSION FUND, and PAT Case No. 15 cv 9461
SHALES, Administrator of the Funds,
Plaintiffs, Judge: Finnegan
v.
SUBSURFACE UNDERGROUND
CONSTRUCTION INC., an Illinois
corporation, ROBERT NICKOLSON,
individually,
Defendants.
WAGE DEDUCTION SUMMONS
To: KB Utility Services Corp.
% CT Corporation System, Registered Agent
1200 South Pine Island Road
Plantation, FL 33324
YOU ARE SUMMONED and required to file answers to the judgment creditor's interrogatories, in 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 on or before December 20, 2016 (21 to 40 days after issuance of summons). However, if this summons is served on you less than 3 days before that date, you must file answers to the interrogatories on or before a new return date, to be set by the court, not less than 21 days after you were served with this summons.
This proceeding applies to non-exempt wages due at the time you were served with this summons and wages which become due until the balance due on the judgment is paid.
IF YOU FAIL TO ANSWER, A CONDITIONAL JUDGMENT BY DEFAULT MAY BE TAKEN AGAINST YOU FOR THE AMOUNT OF THE JUDGMENT UNPAID.
Exhibit B
FEDERAL AGENCY EMPLOYERS: Effective upon service of this summons and pursuant to 5 USC 552(a), you are to commence to pay over deducted wages to the attorney for the judgment creditor in accordance with 735 ILCS 5/12-808.
To the officer:
This summons must be returned by the officer or other person to whom it was given for service, with endorsement of service and fees, if any, immediately after service. If service cannot be made, this summons shall be returned so endorsed. This summons may not be served later than the above date.
_______________________________
COURT CLERK
_______________________________
DEPUTY CLERK
_______________________________
DATE
Prepared by:
Josiah A. Groff (#6289628)
Elizabeth L. Rowe (#6316967)
DOWD, BLOCH, BENNETT, CERVONE
AUERBACH & YOKICH
8 South Michigan, 19th Floor
Chicago, Illinois 60603
(312) 372-1361
Fax: (312) 372-6599
November 18, 2016
THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
FOX VALLEY LABORERS' HEALTH AND
WELFARE FUND, THE FOX VALLEY
LABORERS' PENSION FUND, and PAT Case No. 15 cv 9461
SHALES, Administrator of the Funds,
Plaintiffs, Judge: Finnegan
v.
SUBSURFACE UNDERGROUND
CONSTRUCTION INC., an Illinois
corporation, ROBERT NICKOLSON,
individually,
Defendants.
WAGE DEDUCTION NOTICE
Amount of Judgment: $36,899.99
To: KB Utility Services Corp.
% CT Corporation System, Registered Agent
1200 South Pine Island Road
Plantation, FL 33324
Notice: The court shall be asked to issue a wage deduction summons against the employer named above for wages due or about to become due to Judgment Debtor Robert Nickolson ("Nickolson"). The wage deduction summons may be issued on the basis of a judgment against Nickolson in favor of the Judgment Creditor in the amount stated above.
The amount of wages that may be deducted is limited by Federal and Illinois law.
(1) Under Illinois Law, the amount of wages that may be deducted is limited to the lesser of (i) 15% of gross weekly wages or (ii) the amount by which disposable earnings for a week exceed the total of 45 times the greater of the State or Federal minimum hourly wage.
(2) Under Federal law, the amount of wages that may be deducted is limited to the lesser of (i) 25% of disposable earnings for a week or (ii) the amount by which disposable earnings for a week exceed 30 times the Federal minimum hourly wage.
(3) Pension and retirement benefits and refunds may be claimed as exempt from wage deductions under Illinois law.
The Judgment Debtor has the right to request a hearing before the court to dispute the wage deduction because the wages are exempt. To obtain a hearing the Judgment Debtor must appear in 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, before the summons return date, or appear on the return date and time as specified on the summons. The Clerk of the Court will assign a hearing date, and provide forms which must be prepared by the debtor or his/her attorney, a copy of which must be sent to the Judgment Creditor and the employer or their attorney. This notice may be sent by regular first-class mail.
Respectfully submitted,
____________________
Elizabeth L. Rowe
J. Peter Dowd (#0667552)
Josiah A. Groff (#6289628)
William M. Kinney (#6286597)
Elizabeth L. Rowe (#6316967)
DOWD, BLOCH, BENNETT, CERVONE,
AUERBACH & YOKICH
8 South Michigan, 19th Floor
Chicago, Illinois 60603
(312) 372-1361
November 18, 2016
AFFIDAVIT FOR WAGE DEDUCTION SUMMONS
I, the undersigned, certify under penalties as provided by law under 735 ILCS 5/1-109, that the following information is true.
1. I believe KB Utility Services Corp. is indebted to Judgment Debtor Robert Nickolson for wages due or to become due.
2. The last known address of the Judgment Debtor is 629 Waterford Lane, South Elgin, IL 60177.
3. I request that a summons issue directed to Respondent.
CERTIFICATE OF ATTORNEY
1. Judgment in this case was entered on October 27, 2016.
2. Amount of Judgment $36,899.99
3. Allowable costs previously expended (aside from judgment):
a. Initial filing fee $ 0.00
b. Original and alias summons $ 0.00
c. Filing and summons costs of prior supplementary proceedings $ 0.00
4. Filing and summons cost for this garnishment $ 0.00
5. Post-judgment interest $16.90
6. Total 36,916.89
7. Deduct: Total amount paid by or on behalf of the Judgment Debtor
before this garnishment $ 0.00
8. Balance due Judgment Creditor $36,916.89
J. Peter Dowd (#0667552)
Josiah A. Groff (#6289628) _____________________
William M. Kinney (#6286597) Elizabeth L. Rowe
Elizabeth L. Rowe (#6316967) Counsel for Judgment Creditor
DOWD, 13LOCH, BENNETT, CERVONE,
AUERBACH & YOKICH
8 South Michigan Avenue, 19th Floor
Chicago, Illinois 60603
(312) 372-1361
INTERROGATORIES TO EMPLOYER
Employer/Agent: _____________________________
Court Date: _______________________________________
Defendant's Name: ______________________________
S.S. No. XXX-XX- _____________________________
Case No.: ______________________________
Defendant's Address: ____________________________________________________
_________________________________________________________________________
Do you pay any money to the Defendant listed above? Q' Yes Q' No
If terminated, date _____________________, _________,
IF YOUR ANSWER IS "NO," GO TO "RESPONDENT CERTIFICATION"
Of the funds paid to the debtor, are any of those funds:
[] Subject to prior court ordered deduction (including child/spouse support)
Case Number, State, County _____________________________
[] Q' Disability? [] Retirement? [] Otherwise exempt?
(Describe _____________________________________).
CALCULATION TO DETERMINE AMOUNT OF WITHHOLDING
(Note: If income varies, withholding must be recalculated for every pay period.)
Do you pay debtor:
[] Every week
[] Every two weeks
[] Semi-monthly
[] Monthly
[] Other
(A) Gross wages per paycheck minus mandatory contributions to pensions or retirement plan (A) ____
(B) 15% of (A) = (B) ____
(C) Enter total FICA, State Tax, Federal Tax and Medicare (C) ____
(D) Subtract (C) from (A) = (D) ____
(E) If debtor is paid every week, enter $371.25
If debtor is paid every two weeks, enter $742.50
If debtor is paid semi-monthly, enter $804.37
If debtor is paid monthly, enter $1,608.75
If other, multiply 45 times state minimum wage (currently $8.25)
times number of weeks in pay period (E)____
(F) Subtract (E) from (D) (Enclose a negative number in parentheses, e.g., ($50.00)) (F) ____
IF LINE "F" IS ZERO OR A NEGATIVE NUMBER, DO NOT WITHHOLD
ANY WAGES. GO TO "INSTRUCTIONS" BELOW
(G) Enter the Lesser of Line (B) or (F) (G)____
(H) Enter Child Support or other Court Ordered Deduction (H)____
(I) Subtract (H) from (G) (Enclose a negative number in parentheses, e.g., ($50.00)) (I)____
LINE "I" MUST BE WITHHELD AS OF THE DATE OF SERVICE
AND HELD UNTIL FURTHER COURT ORDER.
IF LINE "I" IS ZERO OR A NEGATIVE NUMBER, DO NOT
WITHHOLD ANY WAGES. GO TO "INSTRUCTIONS" BELOW
(J) Subtract Employer's Statutory Fee (2% of line "I"). See 735 ILCS 5/12-814. (J)____
(K) Amount to be applied to Judgment (K) ____
INSTRUCTIONS
1. Complete the Interrogatories/Answer to Wage Deduction Proceedings.
2. Complete and sign the certification at the bottom of this page.
3. Fax or mail a copy of this Answer to Plaintiffs attorney and give a copy to the
Defendant. Mail a copy to the Clerk of the United States District Court for the Northern
District of Illinois, Eastern Division, 219 South Dearborn Street, 20th Floor, Chicago,
Illinois. To assure timely processing, the Answer should be received at least three days
before the Court Date.
4. You will receive a copy by fax or mail of a Court Order instructing you how to proceed
and where to send any withheld funds.
RESPONDENT CERTIFICATION
Under the penalties as provided by law pursuant to Section 1-109 of the Code of Civil Procedure (735 ILCS 5/1-109), the undersigned certifies that the statements set forth in this instrument are true and correct and that I have either mailed or hand delivered a copy of this completed Interrogatories/Answer to the Clerk, Plaintiffs attorney and Defendant.
Address: _______________
_______________
Date: _____________________________
Signature of Employer/Agent: ____________________________________
Telephone: _______________________________
Print full name clearly: ______________________________________
FAX: _________________________
CERTIFICATION OF MAILING BY ATTORNEY FOR JUDGMENT CREDITOR
Under penalties as provided by law pursuant to Section 1-109 of the Code of Civil Procedure (735 ILCS 5/1-109), I certify that I mailed by regular first-class mail a copy of the Wage Deduction Notice to Defendant at the address shown below on November 18, 2016:
Robert Nickolson
629 Waterford Lane
South Elgin, IL 60177
_________________
Elizabeth L. Rowe
