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Revival of Judgments and Registration of Foreign Judgments, Federal Judgments, and Judgments Entered in Another County in Illinois

ROBERT G. MARKOFF Markoff & Krasny

CHRISTOPHER J. MCGEEHAN McGeehan Technology Law, Ltd. Chicago

©COPYRIGHT 2009 BY IICLE.

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I. [10.1] Revival of Judgments A. [10.2] Background 1. [10.3] Current Procedure 2. Former Procedure a. [10.4] Prior to 1932 b. [10.5] 1932 – 1982 c. [10.6] 1982 – 2002 B. [10.7] Defenses to Revival C. [10.8] Effect of a Bankruptcy Filing on the Revival of Judgment D. [10.9] Revival of a Judgment Initially Entered in Another Jurisdiction 1. [10.10] Judgments That Do Not Need To Be Revived 2. [10.11] Procedure for Revival of Judgment E. [10.12] Limitations on Revival of Judgment II. [10.13] Registrations of Judgments Entered Outside Illinois A. B. C. D. E. F.

[10.14] [10.15] [10.16] [10.17] [10.18] [10.19]

Judgment Entered in Another State Procedure for Registering a Foreign Judgment Judgment Originally Entered in a Foreign Country Procedure for Filing a Foreign Judgment Filing a Federal Judgment Sitting in Illinois Filing a Judgment Entered in a Different County in Illinois

III. Appendix — Sample Forms A. [10.20] Petition To Revive Judgment B. [10.21] Order for Revival of Judgment

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§10.3

I. [10.1] REVIVAL OF JUDGMENTS Judgments may last forever until satisfied. However, there are limits to their enforceability. With a few public policy exceptions (e.g., judgments for child support, crime victims), judgments eventually lose enforceability and liens based upon them expire. These provisions keep property in the stream of commerce by unfettering it after seven years when the creditor has not been diligent in protecting its rights. A creditor may show diligence in protecting its rights by reviving a judgment. In Illinois, a judgment may only be enforced for seven years from the date of the entry of judgment or the date of the judgment’s last revival. 735 ILCS 5/12-108(a). See First National Bank of Marengo v. Loffelmacher, 236 Ill.App.3d 690, 603 N.E.2d 80, 177 Ill.Dec. 299 (2d Dist. 1992); Aetna Casualty & Surety Co. v. Brunsmann, 77 Ill.App.2d 219, 222 N.E.2d 527 (5th Dist. 1966). A judgment need not be revived before it becomes dormant. However, if a judgment becomes dormant, all liens based thereon expire, and the judgment is unenforceable until revived. Ring v. Palmer, 309 Ill.App. 333, 32 N.E.2d 956 (4th Dist. 1941). There is a one-year extension for real estate levy sales in progress. A revival action may not be filed after twenty years, and a judgment will no longer be enforceable on that date unless a revival was completed in the previous seven years or is in progress on the twentieth anniversary. 735 ILCS 5/13-218; Smith v. Carlson, 8 Ill.2d 74, 132 N.E.2d 513 (1956). See §10.12 below. A. [10.2] Background Just as the rules governing pleading under the Code of Civil Procedure have become more liberal over the last century, so has the procedure to revive a judgment. The revival procedure has evolved — from the common-law writ of scire facias to an action brought by complaint — to the current petition procedure. The current revival statute was enacted when P.A. 92-817 (eff. Aug. 21, 2002) became law. This Act amended 735 ILCS 5/2-1601, et seq., and sets forth the method of reviving judgments and eliminates all other forms of revival. The current revival statute has not been the subject of any reported decisions. Therefore, courts may look to decisions under former revival regimes for guidance going forward. 1. [10.3] Current Procedure The current revival statute became effective on August 21, 2002, when P.A. 92-817 became law. This Act amended 735 ILCS 5/2-1601 to read as follows: Any relief which heretofore might have been obtained by scire facias may be had by employing a petition filed in the case in which the original judgment was entered in accordance with Section 2-1602 [735 ILCS 5/2-1602]. Section 2-1601 established a single method to revive a judgment, abrogating James T. Haddon, Ltd. v. Weiss, 342 Ill.App.3d 144, 796 N.E.2d 109, 277 Ill.Dec. 394 (1st Dist. 2003) (holding that supplementary proceeding could be used to revive judgment, and line of cases that held that judgment was revived through filing of separate action).

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§10.3

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P.A. 92-817 (eff. Aug. 21, 2002) also added §2-1602 to the Code of Civil Procedure setting forth the current revival procedure: (a) A judgment may be revived in the seventh year after its entry, or in the seventh year after its last revival, or at any other time thereafter within 20 years after its entry. (b) A petition to revive a judgment shall be filed in the original case in which the judgment was entered. The petition shall include a statement as to the original date and amount of the judgment, court costs expended, accrued interest, and credits to the judgment, if any. (c) Service of notice of the petition to revive a judgment shall be made in accordance with Supreme Court Rule 106. (d) An order reviving a judgment shall be for the original amount of the judgment. The plaintiff may recover interest and court costs from the date of the original judgment. Credits to the judgment shall be reflected by the plaintiff in supplemental proceedings or execution. (e) If a judgment debtor has filed for protection under the United States Bankruptcy Code [11 U.S.C. §1326(a)(2), et seq.] and failed to successfully adjudicate and remove a lien filed by a judgment creditor, then the judgment may be revived only as to the property to which a lien attached before the filing of the bankruptcy action. (f) A judgment may be revived as to fewer than all judgment debtors, and such order for revival of judgment shall be final, appealable, and enforceable. (g) This Section does not apply to a child support judgment or to a judgment recovered in an action for damages for an injury described in Section 13-214.1 [735 ILCS 5/13-214.1], which need not be revived as provided in this Section and which may be enforced at any time as provided in Section 12-108 [735 ILCS 5/12-108]. 735 ILCS 5/2-1602. Section 2-1602 codified revival practice and changed certain aspects of prior law governing revivals and clarifying others: a. Section 2-1602(a) clarifies when a revival can be instituted. Under prior law, some courts had held that a revival could not be granted until seven years from the time the judgment was entered (i.e., when the judgment had already become dormant). Under the 1982 – 2002 law, it was unclear when a revival could be initiated. b. Section 2-1602(b) clarifies the procedure by which a revival may be had. It is intended to do away with the procedure by which a judgment was revived through the filing of a new action. The petition requirements are designed to ensure that the judgment debtor’s payments have been properly accounted for along with interests and court costs.

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§10.5

c. Sections 2-1602(c) and 2-1602(d) are consistent with prior law. d. Section 2-1602(e) codifies a holding of Illinois caselaw relating to bankruptcy. See Prairie Production Credit Ass’n v. Bianucci, 234 Ill.App.3d 1072, 600 N.E.2d 523, 175 Ill.Dec. 592 (4th Dist. 1992). The judgment may be revived in rem against property held by a debtor who (1) obtained a discharge in bankruptcy when the lien was perfected prior to the filing of the bankruptcy, and (2) the debtor has failed to adjudicate the lien in the bankruptcy proceedings and have it removed. For example, if a memorandum of judgment is recorded against real estate before the debtor files a bankruptcy and the debtor then fails to adjudicate and remove the lien in the bankruptcy proceedings, the debt may be discharged, but the lien is not. The judgment lien against the real estate may be continued by reviving the judgment as to that piece of property. This section codified the holding by the Bianucci court that these revivals are deemed to be in rem only. e. Section 2-1602(f) was designed to eliminate the common-law rule that a judgment must be revived against all defendants. The statute clearly states that a judgment may be revived as to fewer than all debtors and that such an order for revival shall be a final, appealable, and enforceable order. This eliminates controversies relating to missing or deceased debtors. It is particularly important when one wishes to continue a lien against real estate but is unable to serve all judgment debtors. f. Section 2-1602(g) is consistent with prior law as it relates to child support awards and crime victims. 2. Former Procedure a. [10.4] Prior to 1932 At common law, judgments were revived through the common-law writ of scire facias. 2 A.C. Freeman, FREEMAN ON JUDGMENTS §1091 (1925). A writ of scire facias was a writ issued by the court in which the original judgment was entered reciting the judgment and praying that the defendant show cause why a revivor should not be granted and execution issued thereon. Id. The writ of scire facias required an affidavit reciting the existence of and details regarding the prior judgment. Coby v. Turner, 48 Ill.App.2d 37, 198 N.E.2d 346 (2d Dist. 1964). Under early Illinois law, when a party delayed execution on his or her judgment and allowed it to become dormant, a legal presumption was raised against its continued validity, and a party seeking to revive the judgment had the burden of rebutting this presumption. Smith v. Stevens, 133 Ill. 183, 24 N.E. 511 (1890). As part of this burden, a party was required to plead that the judgment had not been satisfied, what payments had been made, and that the judgment had not been discharged. Smith, supra. When a court granted a revivor, the order typically recited that the plaintiff was entitled to execution on the judgment pled in the scire facias. Waterbury National Bank v. Reed, 231 Ill. 246, 83 N.E. 188 (1907); FREEMAN ON JUDGMENTS, supra. b. [10.5] 1932 – 1982 In 1932, the Illinois legislature enacted a statutory revival provision as part of the Civil Practice Act (see Ill.Rev.Stat. (1933), c. 110, ¶179) that stated that it was not necessary to use a

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§10.6

CREDITORS’ RIGHTS IN ILLINOIS

writ of scire facias but that any relief that might have been obtained by this writ may be had by employing an ordinary civil action at law through the filing of a complaint and issuance of summons as in other civil cases. Trustees of Schools of Township No. 20, Range No. 5, Whiteside County, Illinois v. Chamberlain, 334 Ill.App. 83, 78 N.E.2d 525 (2d Dist. 1948); Priess v. Buchsbaum, 332 Ill.App. 565, 76 N.E.2d 195 (1st Dist. 1947). However, this statute did not abolish the writ of scire facias, and the two procedures existed side by side for 50 years. Smith v. Carlson, 8 Ill.2d 74, 132 N.E.2d 513 (1956). The coexistence of the two procedures caused considerable confusion as a party was bound by the procedural requirements of the method that they began. First National Bank of Chicago v. Craig, 308 Ill.App. 377, 31 N.E.2d 810 (2d Dist. 1941). Accordingly, a party could not begin a writ of scire facias and then switch to a statutory action with complaint and summons midstream. Id. The use of the statutory method came to dominate revival practice, and by 1980, the writ of scire facias was considered “a proceeding seldom seen in recent times and considered by many practitioners to be somewhat of an antique curiosity.” J.D. Court, Inc. v. Investors Unlimited, Inc., 81 Ill.App.3d 131, 400 N.E.2d 1083, 36 Ill.Dec. 503 (4th Dist. 1980). c. [10.6] 1982 – 2002 In 1982, the Illinois legislature abolished all writs, including the writ of scire facias, as part of the creation of the modern Code of Civil Procedure. See P.A. 82-280 (eff. July 1, 1982). In doing so, the legislature added 735 ILCS 5/2-1601, which, until amendment in 2002, stated: Any relief which heretofore might have been obtained by scire facias may be had by employing a petition filed in the case in which the original judgment was entered and notice shall be given in accordance with rules. The failure of the legislature to proscribe a particular method for revival led to varying decisions as to the proper method of reviving a judgment. Under the procedure that existed between 1982 and 2002, the standard method of obtaining revival was through a petition filed in the original case as directed by the statute. However, some parties continued to use the method of filing a new action to revive a prior judgment. B. [10.7] Defenses to Revival There are two primary defenses to a revival proceeding: payment and discharge. The debtor may also assert that no judgment was entered in the original proceeding or that the original judgment was void due to lack of personal jurisdiction in the original proceeding. These are not true defenses to revival but rather attacks on the validity of the original judgment. This is an outgrowth of the rule that a void judgment may be attacked at any time and is subject to no time limitations. The Illinois Supreme Court addressed the first two defenses in Waterbury National Bank v. Reed, 231 Ill. 246, 83 N.E. 188, 189 (1907): The proceeding by scire facias to revive a judgment is not brought to determine the obligations of the defendant to the plaintiff as involved in the original controversy,

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§10.8

but is for the purpose of reviving the original judgment in order that execution may issue thereon, and in such proceeding the defendant cannot show any matter which was pleaded or might have been pleaded in the original suit. The only defenses which can be set up in a scire facias proceeding are that no judgment was rendered, but if one was rendered that it has been satisfied or discharged. Illinois precedent is inconsistent regarding the procedure for raising the third defense: lack of jurisdiction in the original proceeding. One court has suggested that the judgment should be revived subject a ruling on jurisdictional defect. Dec & Aque v. Manning, 248 Ill.App.3d 341, 618 N.E.2d 367, 187 Ill.Dec. 776 (1st Dist. 1993). Other courts suggest that the jurisdictional issue should be reviewed prior to granting the revival. See, e.g., Sarkissian v. Chicago Board of Education, 201 Ill.2d 95, 776 N.E.2d 195, 267 Ill.Dec. 58 (2002). When faced with a case in which a jurisdictional attack was raised as a defense to revival, the Illinois Supreme Court did not comment on the trial and appellate courts’ decision to address the jursidictional argument prior to granting the revival. Id. (Freeman, J., specially concurring) (arguing that proper procedure should have been to revive judgment first and then address collateral attack on judgment). C. [10.8] Effect of a Bankruptcy Filing on the Revival of Judgment While the law is clear that a judgment lien not avoided in bankruptcy may be revived in rem, prior law was unclear as to how much the time for filing a revival was tolled by a bankruptcy filing. During the pendency of a bankruptcy action, a creditor cannot revive the lien unless the creditor files a motion to lift the stay to file a revival of the lien. However, a creditor typically will not seek to do so as it will place the debtor on notice that he or she should avoid the lien of judgment against him or her while the bankruptcy is open. The extent of the time that the time for reviving the judgment is tolled during a bankruptcy has created a split in authority. In First National Bank in Toledo v. Adkins, 272 Ill.App.3d 111, 650 N.E.2d 277, 208 Ill.Dec. 820 (4th Dist. 1995), the Fourth District took the position that the expiration of the seven-year period for reviving a judgment did not extinguish a lien when the judgment debtor had previously obtained a discharge in bankruptcy and that a creditor could revive the judgment lien against the property in rem even after seven years. In Guertler v. Barlow Woods, Inc., 230 Ill.App.3d 933, 596 N.E.2d 24, 172 Ill.Dec. 745 (1st Dist. 1992), the First District came to a diametrically opposite position and held that when a creditor is prohibited by bankruptcy law from proceeding during the seven-year period, the revival proceeding must be filed within 30 days following the conclusion of the bankruptcy. This conflicted with another Fourth District case, First National Bank of Mt. Zion v. Fryman, 236 Ill.App.3d 754, 602 N.E.2d 876, 176 Ill.Dec. 930 (4th Dist. 1992), in which the court held that the filing of the revival was tolled for the number of days that the stay prevented the filing of the revival. The court in Guertler, supra, based its conclusion on 11 U.S.C. §108(c), which states that when “applicable nonbankruptcy law” does not provide for tolling of actions due to the bankruptcy stay, a cause of action on which the statute of limitations expired during the bankruptcy stay must be filed within 30 days after the stay ends. 596 N.E.2d at 27. Guertler held that since Illinois law did not toll the time for filing actions due to bankruptcy, the 30-day period of 11 U.S.C. §108(c) applied. The Guertler court held that once the lien lapses it cannot be revived.

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§10.9

CREDITORS’ RIGHTS IN ILLINOIS

735 ILCS 5/2-1602(e) appears to have filled the gap cited by the Guertler court and adopted the position suggested by the Adkins court. However, in the event that the bankruptcy stay blocks a revival prior to the expiration of the seven-year period, the best practice is to file as soon as the stay is lifted rather than test the law in this area. A closed bankruptcy case may be reopened to adjudicate and remove a lien on real estate. The primary reason relied on by debtors in support of a motion to reopen is that the lien impairs the debtor’s homestead exemption. In other words, the debtor’s equity in the real estate (home value less mortgages) is less than the allowable homestead exemption (currently $15,000 per owner in Illinois). Reopening is not automatic, and a bankruptcy court may look with disfavor on a motion to reopen if all of the facts in the motion to reopen were contained in the original bankruptcy petition or the reopening prejudices creditors. For example, in In re Bianucci, 4 F.3d 526 (7th Cir.1993), the debtors attempted to reopen their bankruptcy after the Illinois appellate court issued its 1992 opinion, but were not permitted to do so. D. [10.9] Revival of a Judgment Initially Entered in Another Jurisdiction Another issue that has generated conflict is the determination of when a judgment initially entered in a foreign state or country but registered in Illinois must be revived. In Logemann Holding, Inc. v. Lieber, 341 Ill.App.3d 689, 793 N.E.2d 135, 275 Ill.Dec. 655 (1st Dist. 2003), the First District Appellate Court held that the date of the Illinois registration determines when the judgment must be revived. A foreign judgment registered in Illinois need not be revived when the original judgment becomes dormant under the laws of the foreign jurisdiction. As of the date of registration, it becomes an Illinois judgment subject to Illinois law governing revival. 1. [10.10] Judgments That Do Not Need To Be Revived There are three types of judgments that never expire and therefore do not need to be revived: a. A judgment relating to child support does not need to be revived at any time. 735 ILCS 5/2-1602(g). b. A judgment recovered in an action for damages for injury described in §13-214.1 of the Code of Civil Procedure (735 ILCS 5/13-214.1) does not need to be revived. c. A sheriff’s real estate levy pending at the end of the seventh year may be continued to completion within one additional year without reviving the judgment. 735 ILCS 5/2-1602(g). 2. [10.11] Procedure for Revival of Judgment The procedure for reviving a judgment entails the preparation of a revival petition and filing it in the original case. The petition is a standard form with blanks for the original date and amount of the judgment, court costs expended, accrued interest, and credits to the judgment, if any. Some counties charge a filing fee for the petition while there is no charge in others. A petition to revive judgment is included in §10.20 below.

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§10.12

The petition must be served on the debtor by one of the following methods from Supreme Court Rule 105(b) (revivals are governed by S.Ct. Rule 106, which provides for service methods set forth in S.Ct. Rule 105 for petitions seeking additional relief against a party in default): (1) By any method provided by law for service of summons, either within or without this State. Service may be made by an officer or by any person over 18 years of age not a party to the action. Proof of service by an officer may be made by return as in the case of a summons. Otherwise proof of service shall be made by affidavit of the server, stating the time, manner, and place of service. The court may consider the affidavit and any other competent proofs in determining whether service has been properly made. (2) By prepaid certified or registered mail addressed to the party, return receipt requested, showing to whom delivered and the date and address of delivery. The notice shall be sent “restricted delivery” when service is directed to a natural person. Service is not complete until the notice is received by the defendant, and the registry receipt is prima facie evidence thereof. (3) By publication, upon the filing of an affidavit as required for publication of notice of pendency of the action in the manner of but limited to the cases provided for, and with like effect as, publication of notice of pendency of the action. Once service is obtained, the court will enter an order granting the revival. An order for revival of judgment is included in §10.21 below. E. [10.12] Limitations on Revival of Judgment A judgment is valid forever until satisfied or discharged. However, it is not enforceable unless revived. The statute of limitations for revival actions provides that “[j]udgments in a circuit court may be revived as provided by Section 2-1601 of this Act, within 20 years next after the date of such judgment and not after.” 735 ILCS 5/13-218. It is unclear when the final revival may occur under current law. Under the Illinois Supreme Court’s 1956 interpretation of the revival statute, an order granting the final revival of judgment did not need to be entered within 20 years of the original entry of judgment so long as the revival action was filed prior to the 20-year anniversary. Smith v. Carlson, 8 Ill.2d 74, 132 N.E.2d 513 (1956). However, when the Illinois Code of Civil Procedure was overhauled to eliminate references to the writ of scire facias, the amendments introduced ambiguity as to whether the final revival needed to be initiated or completed within 20 years. In Smith v. Carlson, the Illinois Supreme Court expressly distinguished Illinois from other states whose laws required a revival to be completed by a date certain. As Illinois statutes of limitation address when actions must be begun, rather than completed, it is likely that an Illinois court considering this issue would continue to follow the rule of Smith v. Carlson.

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§10.13

CREDITORS’ RIGHTS IN ILLINOIS

II. [10.13] REGISTRATIONS OF JUDGMENTS ENTERED OUTSIDE ILLINOIS Three statutes govern registrations of judgments entered in foreign states and foreign countries: a. the Uniform Foreign Money-Judgments Recognition Act (UFMJRA), 735 ILCS 5/12-618, et seq. (governs enforcement of judgments entered in foreign countries as does 735 ILCS 5/12-630 below); b. the Uniform Foreign-Money Claims Act, 735 ILCS 5/12-630, et seq. (governs enforcement of judgments entered in foreign countries as does 735 ILCS 5/12-618 above); and c. the Uniform Enforcement of Foreign Judgments Act (UEFJA), 735 ILCS 5/12-650, et seq. (governs enforcement of judgments entered in other jurisdictions in the United States). 735 ILCS 5/12-651 provides: As used in Sections 12-650 through 12-657, “foreign judgment” means any judgment, decree, or order of a court of the United States or of any other court which is entitled to full faith and credit in this State. The United States District Court for the Northern District of Illinois explained the distinction between the UEFJA and the UFMJRA in Van Kooten Holding B.V. v. Dumarco Corp., 670 F.Supp. 227, 228 (N.D.Ill. 1987): The purpose of the UEFJ is to implement statutorily the full faith and credit clause of the Federal Constitution and to facilitate the enforcement of interstate judgments. . . . In contrast, the UFMJR applies only to judgment of foreign countries. [Emphasis in original.] The court in Ace Metal Fabricating Co. v. Arvid C. Walberg & Co., 135 Ill.App.3d 452, 481 N.E.2d 1066, 1069, 90 Ill.Dec. 266 (2d Dist. 1985), rejected the defendant’s argument that the registration of an Ohio judgment was governed by the UFMJRA, holding that the provisions of the Act “relate to judgments of foreign countries and were designed to guarantee certain basic rights to residents of Illinois.” However, when the judgment has been rendered by a court of general jurisdiction of a sister state, there is a strong legal presumption that the court had jurisdiction to enter the judgment and that its proceedings conformed to the law of the state in which it was rendered. 481 N.E.2d at 1070.

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§10.14

A. [10.14] Judgment Entered in Another State 735 ILCS 5/12-652 provides: (a) A copy of any foreign judgment authenticated in accordance with the acts of Congress or the statutes of this State may be filed in the office of the circuit clerk for any county of this State. The clerk shall treat the foreign judgment in the same manner as a judgment of the circuit court for any county of this State. A judgment so filed has the same effect and is subject to the same procedures, defenses and proceedings for reopening, vacating, or staying as a judgment of a circuit court for any county of this State and may be enforced or satisfied in like manner. (b) A foreign judgment or lien arising by operation of law, and resulting from an order requiring child support payments shall be entitled to full faith and credit in this State, shall be enforceable in the same manner as any judgment or lien of this State resulting from an order requiring child support payments, and shall not be required to be filed with the office of the circuit clerk in any county of this State, except as provided for in Sections 10-25 and 10-25.5 of the Illinois Public Aid Code. (c) A foreign order of protection issued by the court of another state, tribe, or United States territory is entitled to full faith and credit in this State, is enforceable in the same manner as any order of protection issued by a circuit court for any county of this State, and may be filed with the circuit clerk in any county of this State as provided in Section 222.5 of the Illinois Domestic Violence Act of 1986 or Section 22.5 of the Code of Criminal Procedure of 1963. A foreign order of protection shall not be required to be filed with the circuit clerk to be entitled to full faith and credit in this State Basically, the statute provides that by filing an authenticated copy of a judgment with an affidavit, a notice of filing, and a coversheet, a foreign judgment will become an Illinois judgment that can be enforced in Illinois. An exemplified judgment is a certified judgment order with an attached certificate signed by both the clerk of the court where the judgment was originally entered and signed by the judge who entered it, with the clerk attesting to the judge’s signature and the judge attesting to the clerk’s signature. See 28 U.S.C. §1738. Sections 12-652(b) and 12-652(c) deal with special procedures for judgments for child support and orders of protection. Section 12-652(b) was promulgated to comply with 28 U.S.C. §1738B. The policy underlying the Uniform Enforcement of Foreign Judgments Act was explained by the court in Doctor’s Associates, Inc. v. Duree, 319 Ill.App.3d 1032, 745 N.E.2d 1270, 1277, 253 Ill.Dec. 736 (1st Dist. 2001): The full faith and credit clause of the United States Constitution provides that full faith and credit must be given to the judicial proceedings of every other State. . . . Full faith and credit demands that once an action is pursued to a final judgment, that judgment ought to be as conclusive in every other court as it is in the court where it was rendered. . . . The [UEFJA] is intended to implement the

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§10.15

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Constitution’s full faith and credit clause and to facilitate the enforcement of interstate judgments by providing a summary procedure through which a judgment creditor may seek enforcement expeditiously in any jurisdiction where the judgment debtor is found. [Citations omitted.] The defenses to registration of a judgment of a foreign state are extremely limited. Illinois recognizes only three defenses to foreign judgment: (1) extrinsic fraud in the procurement of the judgment (Massie v. Minor, 307 Ill.App.3d 115, 716 N.E.2d 857, 240 Ill.Dec. 263 (5th Dist. 1999)); (2) lack of personal or subject matter jurisdiction in the foreign court (id.); and (3) payment, release, waiver, or discharge (Doctor’s Associates, supra). Full faith and credit requires that a judgment of another American state will be recognized even when the underlying action would violate the public policy of the State of Illinois. See, e.g., Marina Associates v. Barton, 206 Ill.App.3d 122, 563 N.E.2d 1110, 151 Ill.Dec. 4 (1st Dist. 1990) (reversing trial court’s dismissal of petition to register New Jersey judgment arising out of gambling debt and permitting enforcement in Illinois). B. [10.15] Procedure for Registering a Foreign Judgment To register a foreign judgment in Illinois, counsel should prepare the registration coversheet, attach the authenticated copy of the judgment, and attach an affidavit setting forth the name and last known post office address of the judgment debtor and the judgment creditor. See 735 ILCS 5/12-653(a). Counsel should then prepare a notice of filing for the clerk of court to mail to the defendant by certified mail. The judgment creditor may also mail a copy of the registration to the defendant’s address and file a certificate of mailing with the trial court. The fee for filing will be the same as for filing a civil action with an ad damnum of the amount awarded in the foreign judgment. 735 ILCS 5/12-655(a). There will also be an additional fee for the clerk to send the notice to the defendant by certified mail. C. [10.16] Judgment Originally Entered in a Foreign Country Two statutes govern the registration of a judgment entered in a foreign country: the Uniform Foreign Money-Judgments Recognition Act and the Uniform Foreign-Money Claims Act. In order to register a foreign judgment, it must be final, conclusive, and enforceable. 735 ILCS 5/12-619, 5/12-620. A judgment can be final and conclusive even though an appeal therefrom is pending or it is subject to appeal. A judgment is conclusive and enforceable if it grants or denies recovery of a sum of money and does not fall into any of the tests for inconclusiveness under 735 ILCS 5/12-621. If a judgment is final and conclusive, it is enforceable in the same manner as the judgment of a sister state that is entitled to full faith and credit.

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§10.16

The factors that render a foreign country’s judgment inconclusive are set out in 735 ILCS 12-621: (a) A foreign judgment is not conclusive if (1) the judgment was rendered under a system which does not provide impartial tribunals or procedures compatible with the requirements of due process of law; (2) the foreign court did not have personal jurisdiction over the defendant; or (3) the foreign court did not have jurisdiction over the subject matter. (b) A foreign judgment need not be recognized if (1) the defendant in the proceedings in the foreign court did not receive notice of the proceedings in sufficient time to enable him or her to defend; (2) the judgment was obtained by fraud; (3) the cause of action on which the judgment is based is repugnant to the public policy of this State; (4) the judgment conflicts with another final and conclusive judgment; (5) the proceeding in the foreign court was contrary to an agreement between the parties under which the dispute in question was to be settled otherwise than by proceedings in that court; or (6) in the case of jurisdiction based only on personal service, the foreign court was a seriously inconvenient forum for the trial of the action. (7) the cause of action resulted in a defamation judgment obtained in a jurisdiction outside the Unites States, unless a court sitting in this State first determines that the defamation law applied in the foreign jurisdiction provides at least as much protection of the freedom of speech and of the press as provided by both the United States and the Illinois Constitutions. These general rules are modified by 735 ILCS 5/12-622, which sets forth tests for determining whether jurisdiction was proper in the foreign court. These are similar to the standard methods of obtaining jurisdiction over a defendant in a regular Illinois action (i.e., personal service in the jurisdiction, voluntary appearance, forum selection clause, physical presence in the jurisdiction, or operation of a motor vehicle).

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§10.17

CREDITORS’ RIGHTS IN ILLINOIS

If the judgment is expressed in a foreign currency, the Uniform Foreign-Money Claims Act comes into play. 735 ILCS 5/12-637(f) requires that an order be entered substantially in the following form for collection in Illinois: IT IS ADJUDGED AND ORDERED, that Defendant (insert name) pay to Plaintiff (insert name) the sum of (insert amount in the foreign money) plus interest on that sum at the rate of (insert rate — see Section 12-639) percent a year or, at the option of the judgment debtor, the number of United States dollars which will purchase the (insert name of foreign money) with interest due, at a bank-offered spot rate at or near the close of business on the banking day next before the day of payment, together with assessed costs of (insert amount) United States dollars. 735 ILCS 5/12-637(b) provides that the debtor has the option of electing to pay the judgment in U.S. dollars; otherwise, the payments will be converted to the foreign currency on the date of payment and applied to judgment in the foreign currency. See 735 ILCS 5/12-640(c). In the event that the foreign currency is revaluated, the judgment balance must be recomputed. 735 ILCS 5/12-642. D. [10.17] Procedure for Filing a Foreign Judgment The procedure for filing a registration of a foreign country judgment is identical to that for filing registration of a judgment of another state. Typically an English translation of the judgment is filed with the authenticated foreign judgment. E. [10.18] Filing a Federal Judgment Sitting in Illinois While the Uniform Foreign Money-Judgments Recognition Act applies to judgments of federal district courts, Illinois law provides a separate mechanism for filing the judgments of district courts sitting in Illinois. 735 ILCS 5/12-501 provides that “[a] certified copy of a federal judgment order entered in this State may be filed in any circuit court and shall be afforded recognition as if it were a judgment entered in any other circuit court of this State.” 735 ILCS 5/12-502 provides that judgments of federal courts sitting in Illinois may be recorded as liens with any recorder of deeds in Illinois without being first being registered in an Illinois court. No caselaw interprets either of these provisions, and many clerks of court fail to recognize the distinction in practice between district court judgments entered in state versus those entered out of state.

PRACTICE POINTER 9

The filing of certified copy of an Illinois federal district court or Illinois bankruptcy court judgment in an Illinois circuit court is treated as if it were the judgment of an Illinois circuit court entered in a different county. When filed, it is ready for enforcement. See §10.19 below.

There is no requirement for filing either an affidavit or notice as one would do in the registration of a foreign judgment.

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REVIVAL OF JUDGMENTS AND REGISTRATION OF FOREIGN JUDGMENTS

§10.20

F. [10.19] Filing a Judgment Entered in a Different County in Illinois 735 ILCS 5/12-106 provides: The person in whose favor any judgment is entered, may have the judgment enforced by the proper officer of any county, in this State, against the lands and tenements, goods and chattels of the person against whom the judgment is entered, or against his or her body, when the same is authorized by law. Upon the filing in the office of the clerk of any circuit court in any county in this State of a transcript of a judgment entered in any other county of this State, enforcement may be had thereon in that county, in like manner as in the county where originally entered. The primary purpose for this procedure is to enforce the judgment against a debtor residing in a county outside the county where the judgment was originally entered or to enforce the judgment against real property located in another county. It is also used when a citation to discover assets must be filed in a sister county pursuant to S.Ct. Rule 277. To enforce a judgment of a sister county, counsel must file in the circuit court of the “new county” a certified copy of the judgment entered in the original county. No further notice or hearing is required or necessary.

III. APPENDIX — SAMPLE FORMS A. [10.20] Petition To Revive Judgment IN THE CIRCUIT COURT OF ___________________ COUNTY, ILLINOIS

_________________________________, Plaintiff v. _________________________________, Defendant.

) ) ) ) ) ) ) )

No. __________

PETITION TO REVIVE JUDGMENT NOW COMES Plaintiff, __________________________, by and through its attorneys, __________________________, and praying that this Court revive the judgment previously entered against Defendant, ________________________, respectfully states as follows: 1. That on _________________________, 20___, this Court entered judgment in favor of _________________________________ and against______________________________ in the sum of $____________ plus costs. 2. That as of this date, ________________________, 20___, interest at the statutory rate of ____ percent, has accrued in the sum of $____________.

ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION

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§10.21

CREDITORS’ RIGHTS IN ILLINOIS

3. That as of this date, ________________________, 20___, Defendant is entitled to credits in the sum of $____________. 4. That court costs expended prior to the issuance of the Summons To Revive Judgment total $____________. WHEREFORE, Plaintiff prays that the judgment in the sum of $____________ entered on ________________________, 20___, be revived. ______________________________________ One of Plaintiff’s Attorneys Under penalties as provided by law pursuant to §1-109 of the Code of Procedure, 735 ILCS 5/1-109, the undersigned certifies that the statements set forth herein are true and correct to the best of his or her knowledge and belief. ______________________________________ B. [10.21] Order for Revival of Judgment [Caption] ORDER FOR REVIVAL OF JUDGMENT THIS CAUSE coming on to be heard on the Petition of Plaintiff to revive a judgment, Defendant, ____________, having been served and given an opportunity to be heard, the Court does find, based on the allegations of the petition: 1. A judgment in favor of _____________________________________ and against __________________________ was entered in this Court on ______________________, 20___, in the amount of $____________, plus costs of suit. 2. That payments have been made and applied to the judgment in the sum of $____________. 3. That statutory interest has accrued in the sum of $____________. 4. That court costs to date total $____________. 5. That Plaintiff, ____________, is entitled to a revival of its judgment.

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REVIVAL OF JUDGMENTS AND REGISTRATION OF FOREIGN JUDGMENTS

§10.21

IT IS HEREBY ORDERED: That the judgment entered on ________________________________________, 20___, in favor of _______________________ and against ______________________________ is hereby revived in the sum of $____________ with costs and interest. ENTER: Date: ___________________________, 20___ ______________________________________ JUDGE

ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION

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