Credrts09 Ch1 Markoff

This chapter
was first
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1 The Collection Action
ROBERT G. MARKOFF
Markoff & Krasny
CHRISTOPHER J. MCGEEHAN
McGeehan Technology Law, Ltd.
Chicago
The contribution of Harold Stotland to prior editions of this chapter is gratefully

acknowledged.
COPYRIGHT 2009 BY IICLE. 11

CREDITORS RIGHTS IN ILLINOIS
I. [1.1] Scope of Chapter
II. Introduction
A. Definitions and Initial Considerations

1. [1.2] Creditor
2. [1.3] Debtor
3. [1.4] Forwarder
4. [1.5] Debt Buyer
5. [1.6] Client
6. [1.7] Forwarding Contract
B. [1.8] Forms
C. [1.9] Technology
D. [1.10] Ethical Issues in Collections
E. [1.11] Law Lists
F. [1.12] Fees
G. [1.13] Costs
H. [1.14] Communication and Reporting
I. [1.15] Disposition of Money Advanced and Collected
III. Pre-Suit Procedures
A. [1.16] Receipt of Claim

1. [1.17] Conflict Check
2. [1.18] Opening File and Filing System
B. [1.19] Acknowledgment of Claim
C. [1.20] Demand Letter to Debtor
D. Statutes
1. [1.21] Federal Statutes
2. Illinois Statutes
a. [1.22] Retail Installment Sales Act
b. [1.23] Motor Vehicle Retail Installment Sales Act
IV. Determining Whether To File Suit
A. [1.24] Investigation
B. [1.25] Determining Legal Character of Debtor
C. Documentation Received from Creditor or Forwarder
1. [1.26] In General
2. [1.27] Default
3. [1.28] Acceleration Clause
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D. [1.29] Analysis of Debtor

1. [1.30] Financial Difficulties
2. [1.31] Disputed Claims
3. [1.32] Scam Operator
4. [1.33] Incorporated Debtor Operating out of Home
5. [1.34] Broken Promises
6. [1.35] Professional Debtor
7. [1.36] Out of Business
8. [1.37] Bankruptcy and Assignment for the Benefit of Creditors
9. [1.38] The Debt Protestor
V. Choosing a Remedy
A. [1.39] In General
B. [1.40] Filing Suit
1. [1.41] Venue
a. [1.42] Federal Court
b. [1.43] State Court
2. [1.44] Costs
C. [1.45] Affidavit of Claim and Suit Questionnaire
D. [1.46] Complaint
E. [1.47] Confession of Judgment
F. [1.48] Mechanics Lien or Foreclosure
VI. [1.49] Service of Process
VII. [1.50] Appearance and Answer
A. [1.51] Appearance and Jury Demand

1. [1.52] Appearance by Attorney
2. Pro Se Appearance
a. [1.53] In General
b. [1.54] By Corporation
3. Nature of Claim
a. [1.55] Small Claims
(1) [1.56] Answer to complaint
(2) [1.57] Discovery proceedings
(3) [1.58] Motions
(4) [1.59] Informal hearings
b. [1.60] Claims of $10,000 $50,000
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CREDITORS RIGHTS IN ILLINOIS
B. Nature of Defense
2. [1.62] Common Defenses
C. [1.63] Collectibility
D. [1.64] Summary
E. [1.65] Motions with Respect to Default
1. [1.66] Default Judgment Based on Failure of Defendant To File Answer
2. [1.67] Ex Parte Judgment Based on Failure of Defendant To Appear in Court
3. [1.68] Notice of Entry of Default Order
4. [1.69] Responding to a Noncompliant Answer
F. [1.70] Motions with Respect to Pleadings
G. [1.71] Responding to the Affirmative Defense
H. [1.72] Summary Judgment
I. Other Provisions of Interest
1. [1.73] Bill of Particulars
2. [1.74] Responding to the Motion to Dismiss
VIII. Discovery and Pretrial
A. Discovery
2. [1.76] Preliminary Considerations
3. [1.77] Interrogatories
4. [1.78] Depositions
5. [1.79] Discovery of Documents
6. [1.80] Request for Admission of Facts and Genuineness of Documents
7. [1.81] Consequences of Refusal To Comply with Rules or Orders
B. Pretrial Conference
2. [1.83] Case Management Conference
C. [1.84] Arbitration
D. [1.85] Mediation
E. [1.86] Attorneys Fees
F. [1.87] Effect of Dismissals
IX. Appendix Forms
A. Complaints
1. [1.88] Goods, Wares, and Merchandise
2. [1.89] Goods, Wares, and Merchandise with Agreement
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3. [1.90] Goods, Wares, and Merchandise with Guaranty

4. [1.91] Account Stated
5. [1.92] Insurance Premium/Audit
6. [1.93] Credit Card
7. [1.94] Promissory Note
8. [1.95] Installment Note
9. [1.96] Note with Assignment/Attorneys Fees
10. [1.97] Freight
11. [1.98] Services
12. [1.99] Professional Services with Agreement/Attorneys Fees/NSF Count
13. [1.100] Lease/Rental Only
14. [1.101] Equipment Rental
15. [1.102] Vehicle Lease with Damage
16. [1.103] Vehicle Lease/Damages
17. [1.104] Auto Deficiency with Sale
18. [1.105] Retail Installment Contract
19. [1.106] Property Damage
20. [1.107] Factor/Assignment
B. [1.108] Payment Stipulation
C. [1.109] Affidavit of Claim
D. [1.110] Written Interrogatories
E. [1.111] Notice of Deposition
F. [1.112] Notice To Produce
G. [1.113] Request for Admission of Facts and Genuineness of Documents
H. [1.114] Combined Notice To Produce and Interrogatories

1.1 CREDITORS RIGHTS IN ILLINOIS
I. [1.1] SCOPE OF CHAPTER
This chapter addresses the factors an attorney must consider when beginning a collection
action and the issues likely to arise when the attorney files suit on a collection claim. A
commercial collection action is an obligation incurred primarily for a business purpose. A
consumer collection action, also known as a retail consumer claim or consumer debt, is an
obligation incurred primarily for a personal, family, or household purpose, according to the Fair
Debt Collection Practices Act (FDCPA), 15 U.S.C. 1692, et seq. 15 U.S.C. 1692a(5). See also
2.1 of the Retail Installment Sales Act, 815 ILCS 405/2.1. The guidelines in this chapter
encompass both types of actions; however, the practitioner who handles any consumer actions
must keep current on all recent developments in caselaw interpreting the FDCPA.
Consumer claims are governed by federal and state statutes that must be strictly observed.
Consumer claims require greater care and documentation as the federal courts have assessed large
penalties for technical violations of the FDCPA. Therefore, before sending any form letter,
pleading, or documentation, the attorney must be familiar with the FDCPA and other consumer
protection laws. These statutes are addressed in Chapter 7 of this handbook. If there is a doubt as
to whether a claim is commercial, it should be handled as a consumer debt for the protection of
the attorney.
In addition, the attorney must be familiar with the law governing the obligation at issue.
Typically, most collection claims involve some variation on contract law. The primary exceptions
are cases involving torts or negligence, such as subrogation cases, or statutory remedies sounding
in tort. However, the exact nature of the obligation may involve laws that either augment or
replace general contract law, such as the Uniform Commercial Code, 810 ILCS 5/1-101, et seq.
The discussion of litigation of a collection case beginning at 1.39 below assumes a basic
understanding of the Code of Civil Procedure, 735 ILCS 5/1-101, et seq., and the Supreme Court
Rules and focuses on issues likely to arise in the collection case.
II. INTRODUCTION
A. Definitions and Initial Considerations
1. [1.2] Creditor
The creditor is the party to whom a debt or obligation is owed. The creditor may be the
party that initially contracted with the plaintiff or may be an assignee or debt buyer. The creditor,
also referred to in this chapter as the client or, once suit has been filed, as the plaintiff, is the
party that initiates the collection action. The creditor is the attorneys client or the mutual client of
both the attorney and the forwarder.
2. [1.3] Debtor
The debtor is the party who has incurred a debt and is in default of the legal obligation to
pay the creditor. The debtor, once suit has been filed, is called the defendant.
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THE COLLECTION ACTION 1.6
3. [1.4] Forwarder
Claims are received either from the creditor-client or from a forwarder. A forwarder most
often is a commercial or consumer collection agency but may be a law firm or credit insurance
company that acts on behalf of the creditor. The forwarder will have been retained by the creditor
to collect the debt and is an agent of the creditor. Typically, once a forwarder has exhausted its
collection attempts, the forwarder will refer the claim to an attorney for collection through the
legal system.
Alternatively, if the forwarder is a law firm, the claim may be turned over because the debtor
may be outside the forwarders geographic practice area or the law firm may not handle
collection work. The attorney who receives the claim should realize that most often not only has
the creditor tried to obtain payment from the debtor, but also the forwarder has used its best
efforts to obtain payment short of filing suit.
Forwarding claims to a local collection attorney is expressly authorized by the creditor

usually as part of the agreement between forwarder and creditor. Typically, the creditor becomes
the joint client of the forwarder and the attorney.
Typically, if the forwarder is a collection agency or an out-of-state collection firm, the

forwarder and local collection attorney will have a preexisting relationship. All correspondence
regarding the file is typically directed to the forwarder unless otherwise specified. The contract
between the forwarder and the creditor typically provides that the forwarder will supervise the
local attorneys collection efforts and report as needed to the original client.
4. [1.5] Debt Buyer
A debt buyer is a company that buys receivables, such as delinquent or charged-off credit
card accounts, at a discount and then attempts to collect the balance owed. As the debt buyers
business model involves collecting as much as possible on the bad paper, such a client is
extremely hands-on and requires frequent reports from the attorney. It is not uncommon for these
clients to audit the attorneys files and to establish guidelines for the time period in which certain
activities must be performed.
5. [1.6] Client
If a claim is received directly from the client and the client has limited familiarity with the
realities of collection, the attorney must take extra steps to explain to the client each step of the
collection and litigation process. This explanation is necessary when the client has no knowledge
of the process or the time frame associated with each action and may have unrealistic beliefs
regarding the extent and likelihood of recovery.
Additionally, it is imperative that the attorney inform the unsophisticated client of the scope
of the attorneys engagement. This should be included in the retainer agreement.

6. [1.7] Forwarding Contract
A forwarding contract is an agreement between the forwarder (with the consent of the
creditor) and the attorney specifying the fee arrangement or commission amount due upon
collection. Forwarding contracts may set fees in advance for different types of claims and define
the overall scope of the relationship between the forwarder and the attorney.
B. [1.8] Forms
As in all areas of the law, standard procedures and forms should be used when appropriate.
These standard methods enable the attorney to efficiently and more economically dispose of
claims and ensure compliance with consumer protection statutes. The attorney should develop
forms that can be generically applied with minor changes in any area in which the attorney finds
himself or herself working regularly. However, the attorney must take care to ensure that the
proper form has been used when communicating with the debtor.
C. [1.9] Technology
The pervasive use of technology has greatly changed the collection practice since the last
edition of this handbook. Collection practice has been affected particularly by the rise in
specialized systems for accounting and case management. These systems can be used to generate
form letters, to track conversations with the debtor and the client, to generate reports to the client,
and to generate standardized pleadings. Further, e-mail has become a standard method of
communication with clients and may be used in lieu of a formal letter. One ramification of this
proliferation of office technology is that clients expect timely updates of case progress and
collection.
Technology has also changed the process for skiptracing, locating individuals, and assessing
the debtors financial condition. Many commercial databases exist that market their services to
collection practices. Similarly, many reverse phone directories are freely available online. Many
public bodies, such as courts and recorders, are also moving to make information available online
that will be helpful in assessing the collectibility of claims.
D. [1.10] Ethical Issues in Collections
It is important to keep in mind that two of the most common complaints against attorneys are
failure to communicate with the client and fee disputes. Client communication is essential in
collection actions as the client will insist on being advised on all developments in the case.
Similarly, the attorney may need additional information and documentation from the client as the
case goes on. Fee disputes can be avoided by clearly setting forth the fee arrangement in writing.
The collection attorney will occasionally encounter cases in which it appears that the client
may be guilty of fraudulent practices. These cases may include billing for unsolicited
merchandise or other improper billing practices. If these circumstances come to light, the attorney
should be prepared to withdraw lest he or she become a codefendant with the client.
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E. [1.11] Law Lists
Commercial law lists are published books that list the names and addresses of attorneys
who are willing and able to accept and service commercial claims. The attorney usually pays for
the listing and may maintain a listing in one or more law lists. The price for a listing may vary
from one list to another and from one location to another.
Law lists are a recognized medium for the selection of local attorneys by forwarders. The
listing signifies that the attorney is familiar with this area of law and understands the typical
commercial fee arrangements. Through these lists, attorneys are contacted to undertake collection
actions in their localities. When a claim is forwarded over a commercial law list, both the creditor
and the forwarder may be protected by a bond if the attorney does not remit properly.
The publisher of a law list also may act as an arbitrator if a dispute arises between the
forwarder and the attorney.
F. [1.12] Fees
Fees charged for collection actions may differ from client to client. The attorney and the
creditor have the option of choosing a contingent fee or an hourly rate. Forwarders, debt buyers,
and other sophisticated clients will typically establish global fee arrangements, with certain fee
rates depending on the type of claim. This fee arrangement is typically proposed by the client at
the outset of the engagement.
Typically, a client who believes that the debt is collectible in full will desire an hourly rate (if
the claim is large) or a reduced contingent fee. In contrast, if the debtor appears to be insolvent,
the client will want a contingent fee. In each case, the attorney may want the precise opposite. In
a case in which it appears that the debtor is insolvent, the attorney should request an hourly fee or,
at a minimum, a suit fee. A suit fee is an amount payable prior to the filing of a suit that is
meant to ensure a minimum recovery for the attorney. Similarly, if liability is not clear-cut, the
attorney may desire a higher rate or a suit fee. In other cases, a high contingency may be charged.
For example, fees as high as 50 percent are common for certain types of notoriously uncollectible
claims, such as unpaid rent following a skip or a money judgment for back rent entered as part
of a joint action eviction.
The fee charged an individual client should be worked out with the client by means of a
retainer agreement or an engagement letter. This agreement is important at the outset to establish
clearly the parameters of the engagement. When a forwarder is involved, individual contacts with
the client usually are not needed as the client has already agreed to the litigation and the fee
through the forwarder.
A retainer is money paid by the creditor in advance to retain the services of the attorney. If
an attorney charges a contingent fee upon collection, the retainer is deducted from the attorneys
fee. A retainer may also be first taken into account if the attorney charges the client an hourly
rate.

The defense of a counterclaim is normally on an hourly basis. If a counterclaim is in fact

threatened, the client should be informed before making any decision to file suit. If suit has been
filed and a counterclaim is thereafter filed, the client must immediately be notified, and the
attorney must ascertain whether the client wishes the attorney to defend the counterclaim. Clients
may have insurance policies covering defense of counterclaims, and the insurer may choose to
have its preferred counsel defend such counterclaims.
G. [1.13] Costs
The client is typically responsible for the payment of all court costs. The attorney normally
obtains a court cost advance in an amount sufficient to pay for the complaint and service with an
extra amount in the event alias process becomes necessary or for postjudgment proceedings. This
check is deposited in the attorneys client trust account. Larger clients may insist on their own
separate trust accounts.
The attorney should not incur any expenses without the prior consent of the client. For
example, if additional discovery would surpass the costs already in the hands of the attorney, the
attorney should ask for additional costs before proceeding unless other arrangements have been
made.
H. [1.14] Communication and Reporting
Once the attorney-client relationship has been initiated, the attorney should be constantly
aware that the handling of a collection claim requires frequent communication with the client. A
more sophisticated client, such as a debt buyer, may require reports generated on a regular basis.
Any event, such as payment or the like, should be reported to the client. This is particularly true
for adverse events or events that require the client to provide additional information (e.g.,
documentation showing the assignment of a claim to the current plaintiff when the assignment of
the claim is in dispute).
The attorney should keep the client or forwarder informed of all pertinent developments in a
timely fashion. Unless other arrangements have been agreed on, all status reports should be in
writing. Many clients prefer these updates in electronic form. Telephone communications should
be likewise confirmed by a written status report. If the attorney suggests a file advancement date,
the subsequent report should be in the forwarders hands before this time. If the report is not sent
in a timely manner, the attorney will likely receive a prompt from the forwarder requesting a
status report. The better practice is to be proactive and to immediately generate the status reports.
I. [1.15] Disposition of Money Advanced and Collected
Attorneys must properly and effectively track all funds, especially those received from the
creditor as advanced costs and from the debtor to be remitted to the creditor. Funds received from
the debtor must be credited to the debtors account on the day that they are received. In addition,
if the plaintiffs attorney receives the settlement, he or she should remit it as soon as the funds
clear. Court costs and payments received from the debtor should be deposited in a trust fund or in
the clients fund account. The attorney cannot draw out of this fund for his or her fees until the
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attorney remits on the item to the client. Funds of the client or the debtor cannot be commingled
with those of the attorney. Unexpended court costs should be returned to the creditor when the
file is closed. Counsel should give the creditor a full explanation if all deposits for court costs
cannot be returned. When negotiating the claim, it is always good policy to attempt to recoup all
court costs.
III. PRE-SUIT PROCEDURES
A. [1.16] Receipt of Claim
When a claim comes into the attorneys office, it should be segregated from other incoming
mail so that it can be reviewed expeditiously. An attorney who handles volume claims should
keep records indicating the forwarder or client and the size and nature of the claim. Also, the
attorney must review each claim to initially determine the fees to be charged and the presence of
appropriate documentation. Although a record of correspondence is essential in this industry, an
initial phone call asking for additional documentation may speed up the first stage.
Typically, the claim is then entered in the attorneys computer system. Some larger clients
may transmit new claims to their attorneys electronically, and these claims are then downloaded
and merged into the attorneys case management system. The attorney should review these claims
promptly.
Additionally, at the time the claim is received, the attorney must determine whether any other
claims exist against this debtor. If other claims exist, the attorney can then determine what course
of action to initiate; these claims may also provide further insight into the debtor. The attorney
should devise a system of grouping these files so that all claims against the debtor can be handled
simultaneously.
Consumer and commercial matters should have separate filing systems or be carefully and
clearly distinguishable. Recent developments in consumer protection laws have increased the risk
of liability to firms and practitioners. Therefore, it is essential that consumer files are processed in
accordance with the applicable federal and state statutes. Commercial matters are not given the
same protections.
1. [1.17] Conflict Check
The Illinois Rules of Professional Conduct require an attorney to represent the interests of
only one side of the litigation, which, of course, means that the attorney can represent only one
side in any claim that is handled. Therefore, the law office receiving the claim must do a conflict
check. Essentially, if a creditor claim is received, the attorney must make sure that he or she is not
representing the debtor in any capacity. If the attorney has a commercial practice, he or she must
exercise particular care as it is likely that the debtor also has accounts receivable that have been
placed with forwarders or attorneys. If office records are computerized, the system can make a
conflict check quickly and efficiently.
ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION 1 11

Additionally, in the case of multiple claims against the same debtor, the attorney must treat
all creditors fairly. The best method of doing this is to pursue collection of all claims
simultaneously but to apply collected proceeds to the accounts in the order they were received by
the attorney.
2. [1.18] Opening File and Filing System
The opening of a collection file is an intricate part of the collection process. Clients or
forwarders may deliver original documentation that is irreplaceable. However, the tendency is for
clients to deliver minimal documentation immediately. Should the client provide original
documents, it is imperative that the attorney open a file so the documentation can be safeguarded.
The attorney should discourage the forwarding of original documentation; he or she should keep
only copies until the case is being prepared for trial. Further, unless there is a forgery defense, it
is unlikely the originals will ever be required.
As important as the file is the attorneys filing system. If the attorney has a volume practice,
he or she should use a computer filing system. Various companies can analyze an attorneys
office and practice and discuss the systems available. It is important that the attorney choose a
consistent system that will enable the quick location of each file. An indexing system should also
be used so that the attorney can locate all files without a physical search. This system is
imperative as the attorneys volume increases. The attorney should check with his or her
malpractice insurance carrier for any further requirements.
B. [1.19] Acknowledgment of Claim
At the time the file is opened, the attorney should send an acknowledgment letter to the
creditor or forwarder. The acknowledgment tells the creditor that the claim has been received and
also preserves the attorneys fee even if a direct payment is made to the creditor. Depending on
the attorneys relationship with the client, this letter may also request that the client discontinue
contact with the debtor.
It is not unusual for the debtor, upon receipt of the initial demand letter by the attorney, to
pay the creditor directly. The debtor may wish to stay in the creditors good graces, or the debtor
may assume that a better deal can be negotiated through the creditor.
It is essential that the attorney write frequently to the forwarder regarding developments. This
process begins immediately. The attorney should write to the forwarder 10 14 days after
sending the acknowledgment letter and should send a substantive report reflecting direction and
recommendations as the initial investigative stages have been completed.
C. [1.20] Demand Letter to Debtor
At the time the claim is acknowledged, the attorney should send the debtor a demand letter
that advises the debtor that the claim has been turned over to the attorney and gives the debtor the
opportunity to liquidate the claim without incurring additional costs. Additionally, it gives the
debtor the opportunity to explain the reason for nonpayment. These letters are mandatory for
consumer claims.
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Counsel should take care regarding the content of these letters. Although they can be firm,
they must be reasonably conciliatory and carry no threat. This care is of the utmost importance in
a consumer claim. The content of such letters has been a major source of Fair Debt Collection
Practices Act litigation, and the attorney should use a form letter that has been approved for use
rather than drafting his or her own letter.
D. Statutes
1. [1.21] Federal Statutes
All consumer credit transactions, both sale and non-sale, must comply with the Truth in
Lending Act (TILA), 15 U.S.C. 1601, et seq., and Regulation Z, 12 C.F.R. pt. 226. The TILA
requires written disclosures advising the consumer of the costs of credit. It provides both criminal
and civil penalties for noncompliance; therefore, the attorney must be sure that his or her client
has met its requirements. Otherwise, the debtor can assert a TILA counterclaim to the creditors
contract claim.
The Fair Debt Collection Practices Act must be reviewed by all collection practitioners, along
with recent caselaw interpreting the statute.
2. Illinois Statutes
a. [1.22] Retail Installment Sales Act
If the credit transaction involves the retail sale of chattel, it will be governed by the Retail
Installment Sales Act, 815 ILCS 405/1, et seq. Courts have been zealous in requiring strict
compliance with this Act, and attorneys should therefore make sure that the creditor has
complied. Logan Furniture Mart, Inc. v. Davis, 8 Ill.App.3d 150, 289 N.E.2d 228 (1st Dist.
1972).
The Act lists 16 disclosure requirements intended to make borrowers more aware of the
consequences of incurring debts. 815 ILCS 405/5; Garza v. Chicago Health Clubs, Inc., 347
F.Supp. 955 (N.D.Ill. 1972). Section 5 requires that all disclosures shall be made clearly,
conspicuously, and in meaningful sequence. If the creditor has complied with the federal Truth in
Lending Act and its regulations, the creditor shall be deemed to be in compliance with the
provisions of 5.
Before taking any action or making any recommendations, the attorney should read the Retail
Installment Sales Act in its entirety, particularly since 12 of the Act grants the court discretion to
award attorneys fees to either party as the interests of justice may require.
b. [1.23] Motor Vehicle Retail Installment Sales Act
If the credit transaction involves the purchase of a motor vehicle from a retail seller primarily
for personal, family, household, or agricultural purposes, it will be governed by the Motor
Vehicle Retail Installment Sales Act, 815 ILCS 375/1, et seq. Strict compliance with this Act is

mandatory. The attorney should read the Motor Vehicle Retail Installment Sales Act in its
entirety before taking any action or making a recommendation to a client, paying particular
attention to 3, which provides the general requirements of a contract, 5, which provides for the
terms and conditions of a contract, and 11, which is analogous to 12 of the Retail Installment
Sales Act, 815 ILCS 405/12, allowing the issuance of attorneys fees in the courts discretion as
justice may require.
IV. DETERMINING WHETHER TO FILE SUIT
A. [1.24] Investigation
Before recommending that a lawsuit be filed, the attorney should attempt to ascertain the
particular reason for nonpayment. This knowledge will enable the attorney to fairly and
accurately report to the forwarder and allow the creditor to make an economic decision whether
additional time and money should be invested in this matter.
Support staff can and should be used for pre-suit investigations. Staff members may call the
debtor to ascertain the composition of the debtor, the debtors location, any available assets, and
the debtors intent regarding payment; this call will also verify the debtors telephone number and
address. In commercial settings, this information can establish whether the debtor is still in
business. In the consumer debt setting, this information will verify the residence or work address
and phone. The attorney must always beware of the limitations imposed by the federal regulations
in relation to consumer claims. A visit to the debtors premises might enable the attorney to gain a
fuller insight into the debtors present financial position, although, depending on the debtors type
of business and the amount of the claim, such a visit may be impractical or unfeasible.
A credit report, such as a Dun & Bradstreet for a business or a TransUnion or Equifax for a
consumer, can provide helpful information. A credit report that reflects primarily positive
information may indicate that the debtor is likely collectible.
Another resource that can be used to investigate a consumer debtor is the Illinois Department
of Corrections prisoner database, which is available on the Departments website at
www.idoc.state.il.us. Should the debtor be found in prison, the file can be closed.
B. [1.25] Determining Legal Character of Debtor
While the client may have obtained a formal application from a business debtor at some
point, the information may be incorrect or outdated. It is then necessary to verify this information
so that the proper party defendant can be identified. Invoices to the debtor do not always include
the proper legal identification. If the client has received checks from the debtor, they may reveal
the proper legal title as well as the location of the debtors bank.
In the commercial setting, the attorney should check the records of the Illinois Secretary of
State. The Secretary of State maintains online records for corporations and limited liability
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companies, both foreign and domestic. See the website of the Secretary of State at
www.sos.state.il.us or www.cyberdriveillinois.com. These records also show corporations that are
no longer in good standing.
If the debtor is not a corporation, it may be a general partnership (which is not required to
register with the Secretary of State) or an individual doing business under an assumed name.
Assumed names must be filed with the county clerk in the county where the individual does
business. If the business does not have a listed phone number or the telephone number has been
disconnected with no forwarding number, the investigator must look elsewhere. A city telephone
book or an online equivalent may have the information sought. Also, the Better Business Bureau
and the Illinois Manufacturers Association (IMA) Directory can provide valuable information
regarding the debtors business and location. The IMA Directory is available online at www.ima-
net.org/membership/directory.cfm. Haines Criss+Cross Directory lists street addresses with
telephone numbers, allowing the investigator to call neighbors in an attempt to locate the debtor.
These books can be purchased, rented, or consulted in a local library. See also
www.haines.com/ccdir1.com. Similar reverse address and phone directories are available online.
One of the authors recommends www.searchbug.com as an online resource.
Other sources that can be used as part of routine investigation are the Secretary of States
records on motor vehicle and professional licenses, court records (both civil and criminal), and
Uniform Commercial Code tax, judgment, and Article 9 security lien searches. See 810 ILCS
5/9-101, et seq. Court docket information may provide a service address and other information
regarding a debtor. Because of the additional charge, the client may wish to refrain from Uniform
Commercial Code searches until further information about the debtor is obtained. Last, if the
search reveals nothing, a skiptracer can be hired. For a fee, a skiptracer will attempt to locate a
hard-to-find debtor.
C. Documentation Received from Creditor or Forwarder
Although most experienced collection agencies are aware of the documents needed by the
attorney, often these agencies are not cognizant of the legal ramifications revealed by these
documents. Additionally, collection agencies tend to send a minimum amount of documentation
initially, and, therefore, the attorney must request specifics. Further, a forwarder or debt buyer
may not have the original information and may have to return to the original creditor to obtain
copies of signed contracts or the like. An attorney should review, for example, copies of
contracts, invoices, statements, deeds, notes, mortgages, credit applications, guaranties, estimates,
loan receipts, transaction payment histories, ledgers, demand notes, correspondence received by
the defendant regarding defects or defenses, memoranda of telephone calls, and responses. The
more information the attorney has, the more expeditiously and efficiently he or she can handle the
claim. The attorney who has reviewed the entire file can likely thwart any unfounded defenses
and thus expedite a resolution. Although the attorney does not want to be bombarded with
unneeded information, an experienced collection attorney can quickly decipher information
received and determine what is actually useful for the claim.

Documentation showing an assignment of claim is typically needed at the outset of the claim
since a very common defense is that the current plaintiff is not a party to whom the defendant is
indebted. Further, this documentation is necessary as the plaintiff is required to plead the
assignment in the complaint pursuant to 735 ILCS 5/2-403(a).
Personal information about the debtor, such as the debtors name, last known address, aliases,
spouses name, employment, and social security number and additional information obtained
from acquaintances, is often useful for the initial collection stages through the judgment stages.
The State of Illinois requires licensed collection agencies to document each phone
conversation with the debtor, and these records may reveal valuable patterns. For example,
broken promises to pay would put the attorney on notice that problems may arise with a payment
plan agreement, a factor useful in determining what course of action to pursue and for trial
purposes.
Counsel must diligently scrutinize the documentation needed for consumer claims, including
the documents received from the creditor. Demand letters sent must be in compliance with state
and federal requirements. Therefore, consumer claims must be marked accordingly and handled
with care and consideration.
Counsel should carefully review the names of business entities and confirm that this
information is entered properly. A 2008 appellate court decision, Capital One Bank, N.A. v.
Czekala, 379 Ill.App.3d 737, 884 N.E.2d 1205, 318 Ill.Dec. 934 (3d Dist. 2008), expressed
concern that the creditors law firm failed to verify the correct name of the debtor before
improperly obtaining a judgment against a corporate debtors principal when the supporting
documentation showed that the corporation was the debtor.
The Czekala court was not sympathetic to the plaintiffs argument that this was an
unintentional data entry error:
Plaintiff's counsel attributed the variations due to the high volume electronic
nature of the law firms practice. Being too busy to be careful is not a valid excuse
for the procedural difficulties apparent from this record that are attributable to the
actions of counsel, not the court. 884 N.E.2d at 1215.
2. [1.27] Default
Whether a default in the contract has occurred is most often a question of law. The attorney
must read the contract and consider not only the terms of the contract but also the established
precedent of payment. If the claim is based on an installment obligation and a history of late
payments was established, the creditor must send a letter notifying the debtor that the creditor will
accept no future late payments and will require strict compliance with the contract terms. The
client will not be permitted to suddenly declare a default and enforce his or her legal remedies.
Margolin v. Franklin, 132 Ill.App.2d 527, 270 N.E.2d 140 (1st Dist. 1971). In Margolin, the
appellate court held:
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The law in Illinois is clear that a vendor may not establish a pattern of accepting
time payments which may be slightly late and then suddenly insist on a strict
compliance of the time provisions of the contract and declare a forfeiture of the
merchandise. (Boardman v. Bubert, [325 Ill. 38, 155 N.E. 784 (1927)]). The Illinois
Supreme Court has consistently held that the right to forfeit a contract is waived
where the contract provides for prompt payment at fixed dates and payments are
not so made and accepted after they become due. (Cottrell v. Gerson, [371 Ill. 174, 20
N.E.2d 74 (1939)]; Plummer v. Worthington, [321 Ill. 450, 152 N.E. 133 (1926)];
Monson v. Bragdon, [159 Ill. 61, 42 N.E. 383 (1895)]). Where the parties have treated
the time clause as waived with respect to some of the payments, the vendor, to avail
himself of the right to forfeiture for failure to make subsequent payments on time,
must give reasonable, definite and specific notice of his changed intention. 270
N.E.2d at 142 143.
Counsel must also read the contract to determine whether a default has in fact occurred and
what the clients damages are.
3. [1.28] Acceleration Clause
If a claim is based on an installment obligation, the contract must contain an acceleration

clause or a default can be declared only on the portion currently due. If there is no acceleration
clause, then either the complaint will have to be continually amended or the prayer for relief must
be drafted appropriately to take the additional amounts into account as they come due. This issue
frequently presents itself in suits on defaulted leases.
D. [1.29] Analysis of Debtor
During the initial confrontations with the debtor, the attorney must keep in mind how to
liquidate the claim most expeditiously. All claims are not collectible, so an early analysis of the
debtors identity and the reasons for nonpayment is essential. The debtor will probably fall into
one of nine common categories, discussed more thoroughly in 1.30 1.38 below:
1. financial difficulties;
2. disputed claims;
3. scam operator;
4. incorporated debtor operating out of home;
5. promise-breaker;
6. professional debtor;
7. out of business;

8. bankruptcy and assignment for the benefit of creditors; and
9. debt protestor.
These categories are not all-inclusive, but they will assist the attorney in reporting to the
forwarder with directions and recommendations on the claim.
The most common recommendations are to (1) file suit, (2) institute a payment plan (with or
without security), or (3) close the file as uncollectible. There are, of course, other feasible
alternatives, and an individual factual analysis will enable the attorney to properly recommend the
best course of action.
The attorney should make a recommendation and report to the forwarder within 10 to 14 days
of the acknowledgment. If additional time is needed before a substantive report is sent, counsel
should inform the forwarder about the delay and the reason for it. Expeditious and prompt
investigation is necessary as time under certain circumstances may be of the essence the
debtor and his or her assets may disappear.
1. [1.30] Financial Difficulties
Frequently, a claim will involve an honest debtor who is experiencing financial difficulties
ranging from minimal to severe or from temporary to long-term. The attorney should attempt to
obtain from the debtor a complete understanding of the debtors financial picture and proof of his
or her financial status. Documents such as tax returns, financial statements, Uniform Commercial
Code Article 9 security liens, tax liens, and judgment liens should be requested. Receipt of these
documents will verify the debtors forthrightness and will enable the attorney to report to the
forwarder a verified financial picture and well-documented recommendation.
The recommendation for the debtor who is suffering a minimal and temporary setback is to
file suit and to enter an agreed dismissal order with leave to reinstate or proceed to judgment. If
the promised payments do not materialize, then execution of these documents will enable the
creditor to reduce the claim to judgment immediately. Because part of such an agreed dismissal is
an admission of the underlying facts, the creditor may move for immediate judgment.
An alternative to the payment stipulation with a debtor who is suffering a minimal or

temporary setback is a recommendation that suit be filed immediately and judgment obtained.
Experience has revealed that debts that have been reduced to litigation and judgment normally are
given priority attention over debts that are acknowledged but not litigated. The debtor, who likely
has acknowledged the debt, often will allow a default judgment to be entered as the claim is
uncontested. The judgment can give the creditor certain liens on the debtors real and personal
property if a memorandum of judgment is recorded or a levy is issued. Therefore, this course of
action will give the creditor leverage to obtain a satisfactory payment plan.
The debtor in severe financial condition, however, poses another dilemma. As with the debtor
suffering a minimal and temporary financial setback, documentation supporting the severe
financial condition is important. In this situation, however, the most economical recommendation
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for the client may be that the claim be closed as uncollectible. The corroborating evidence will
legitimize both the debtors contentions and the attorneys recommendation. If the claim is a
business debt, however, and the business is still operating, the claim should not be deemed
uncollectible as time may alter and improve the debtors financial status. Again, the attorney
should attempt to obtain security for the debt. A personal guaranty on a corporate debt is always
looked on favorably by the creditor. However, this remedy is usually not agreeable to the debtor,
and the options stated above, such as filing suit, may be the only viable alternatives.
If the recommendation is that the file be closed as uncollectible, the attorney should be
cautious because obtaining judgment and postjudgment procedures may enable the debt to be
collected in the future in whole or in part. The forwarder should be informed of the debtors
financial condition and the options available. The final decision should be made by the creditor.
The creditor must be informed that if a judgment is obtained, it may not be collectible. Counsel
should also emphasize that a debtor in a serious financial condition eventually may close its doors
or file for relief in bankruptcy. See 1.37 below.
2. [1.31] Disputed Claims
Like financial difficulties (see 1.30 above), disputed claims arise with some frequency.
When a claim is disputed, the attorney should consider a suit fee as the claim will require
additional time and effort even if the dispute is frivolous. A proper understanding of the law in
the particular area of dispute is essential. An attorney who regularly practices in the collection
area can easily distinguish the frivolous claims from the legitimate claims. Once allegations of a
dispute have been made, the attorney should obtain all information regarding the dispute so that
the facts can be reported to the forwarder or creditor for a response.
The frivolous defense usually arises for purposes of delaying the legal action. It is easily
recognized when the facts establish that the first complaints of defects from the debtor or any
other dispute did not occur until months after the goods were ordered, delivered, and received.
The attorney or paralegal therefore should attempt to pin down the exact nature of the dispute,
including whether complaints were made to the creditor, when and by whom any complaints were
made, whether there is any documentation, and what the current status of the merchandise is.
These facts enable the attorney to quickly recognize a frivolous dispute and quickly prepare a
legal defense for either settlement or trial.
If the dispute involves the sale of goods, wares, or merchandise or a combination of goods
and services, the attorney should look to Article 2 of the Uniform Commercial Code, paying
special attention to the sections on acceptance, rejection, revocation, and remedies. See 810 ILCS
5/2-101, et seq. The Uniform Commercial Code will enable the attorney to build a tight case
against the debtor by logically moving from section to section. It is important to note that even
the most untimely and frivolous of defenses poses additional risks at the time of trial. The creditor
therefore should be made aware promptly of both the law and the realities of jury and bench
trials. The best recommendation when faced with a frivolous defense is to file suit and forge full
speed ahead. Because the goal is always to expedite a resolution satisfactory to the creditor, a
settlement may be the creditors best option even when the dispute is frivolous. The attorney must

also be sensitive to the importance of the creditors business reputation, which may, under certain
circumstances, necessitate either settling or a showing of no leniency. Although expedience in
resolving a dispute is a high priority, it must always be weighed with the creditors other
legitimate interests.
When a disputed claim involves potentially legitimate issues, it is the attorneys primary
responsibility to inform his or her client of the risks and exposures of a lawsuit and the potential
of a counterclaim. The attorney should obtain all documentation from the defendant supporting
the dispute and advise the forwarder of how to best settle the dispute and whether the potential for
a counterclaim exists.
When a legitimate dispute arises, the creditors best option is usually to settle the case. A
simple, direct, and effective settlement proposal is to reduce the creditors claim by the amount
the evidence indicates is legitimate. The creditor may also wish to completely forgo the suit.
Under each of these options, mutual releases should be executed to protect the creditor from
future actions. If the creditor has continued to do business with the debtor, the release must be
carefully drafted to include only the time period and goods or service at issue, and a general
release should not be given.
One legitimate defense in particular that arises with frequency is an identity theft or forgery
defense. Should the defendant deny any knowledge of the transaction and claim that his or her
signature is forged, the attorney should refer the account to the creditors fraud unit. Typically,
the debtor will be required to provide copies of his or her identification and signature. This
information will be compared with the information on file, as well as the disposition of the
merchandise acquired by the fraud, and the creditor will make a recommendation to the attorney
regarding whether the case should be pursued.
3. [1.32] Scam Operator
A category of particular difficulty is the scam operator. If the creditor has the misfortune of
doing business with a scam operator, time is of the essence, and the creditor should file an
immediate lawsuit before all interested debtors disappear. In addition, these operations should be
promptly reported to the states attorney and the United States Attorneys Office. Illinois has been
successful in reducing the number of scam operators by its prompt response and interest.
A scam operation can be run in several ways. The most frequent scam is for the operator to
purchase a small retail operation that has established good credit. The scam operator uses the
established retail operation as a front and orders large quantities of merchandise, usually on
unsolicited purchase orders. The merchandise is received in the front door and removed out the
back to be sold on the streets or in special markets. This pattern continues until the retail
operations established good name and credit have been destroyed; then the scam operation
ceases, and all parties disappear.
The second scam operation used with some frequency borders closer to the legitimate and is
harder to recognize. Corporations, usually restaurants, are sold back and forth among friends and
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family. The party who currently maintains control will inevitably claim that another party was the
owner at the time the debt was incurred. Often a new corporation will be opened under the same
name with the same principals and with the same goods.
The attorney in this scenario must diligently pursue the action. It is not uncommon to have to
amend the complaint to include several defendants that held interests in the corporation at various
times. A judgment against the corporation will enable the attorney to conduct postjudgment
proceedings that may reveal the responsible party. Counsel should recommend suit unless it is
clear that the corporation has no assets and the corporate veil cannot be pierced.
4. [1.33] Incorporated Debtor Operating out of Home
When a debtor is incorporated and operates out of his or her home, there may be some
collection problems about which the forwarder and creditor need to be informed. If the
corporation is operating, counsel should implement the normal investigative procedures.
However, if the corporation has no assets, was service oriented, or operated as an intermediary
having no assets, a recommendation to close the file may be the creditors best alternative. Once
again, the attorney should inform the creditor of all options and advise that the judgment may be
uncollectible. The attorney should investigate whether corporate formalities were observed before
making a recommendation to close the file.
5. [1.34] Broken Promises
There are, unfortunately, debtors who make continual promises to pay that are never fulfilled.
If the forwarder or creditor has indicated that this is the debtors routine, counsel should file
immediate suit. Likewise, if staff members during the investigative process have found this to be
true, counsel should forward a suit recommendation to the creditor if payment is not made. In
making a recommendation, the attorney should analyze past patterns of this debtor if this
information is available. Credit reports will show the past payment history of the debtor. These
patterns should also be taken into account in determining the settlement terms for a claim. A
settlement that includes only a payment stipulation likely would only delay payment of the debt.
Therefore, it is imperative that the settlement include a provision for immediate judgment if
payment is not timely received. In addition, although it is more costly and time-consuming, the
best recommendation may be to file suit and dismiss it pursuant to the payment stipulation with a
judgment clause, which will allow the creditor immediate access to court process to obtain a
judgment and begin collection proceedings.
6. [1.35] Professional Debtor
In the commercial arena, the attorney may come across the professional debtor. A
professional debtor is a businessperson who routinely incurs debts from various creditors and,
after demand is made, makes allegations of dispute with an accompanying 50-percent offer.
These debtors typically do business as corporations and observe the corporate form carefully.
They may have run unsuccessful businesses in the past and may have past experience with filing
a business bankruptcy.

The attorney who handles volume claims is likely to have several files against this debtor.
The attorney should attempt to work out an amicable settlement before filing suit, thus saving the
creditor the litigation costs. The attorney should monitor the file closely, however, and, if the
debtors promises are not fulfilled, should file suit immediately.
As this type of debtor usually remains in business but suffers continual financial problems,
obtaining judgment may be the only method of obtaining payment if the debtor wont cooperate.
However, experience has shown that when pushed hard enough, this type of debtor will settle the
case before going to trial.
7. [1.36] Out of Business
If the debtor is a corporation and out of business, the attorney should make a recommendation
that the file be closed. The attorney, however, must first determine whether the corporate books
and records have been properly maintained. If they have not or if the debtor has commingled
corporate and personal assets, the debtor can be held personally liable for the corporate debt
under the legal theory of piercing the corporate veil.
If the corporation has been dissolved and the claim was incurred before dissolution, the
creditor has five years in which to bring an action. See 12.80 of the Business Corporation Act of
1983, 805 ILCS 5/12.80. However, if all corporate assets have been legitimately dissipated, the
claim should be closed as uncollectible.
If the debtor is personally responsible for the debt because the corporate veil has been
pierced, the debt was incurred after the corporation or other limited liability entity was dissolved,
or the business was a sole proprietorship or general partnership, the action should be pursued.
PRACTICE POINTER
9 While general partners are liable jointly and severally for all obligations of the
partnership (see 805 ILCS 206/306(a)), judgments against general partnerships are not
enforceable against the assets of individual partners unless a judgment is also obtained
against the individual partners. See 805 ILCS 206/307(c). A creditor may choose to sue
any number of general partners when it files suit against a general partnership. See 805
ILCS 206/307(b) (An action may be brought against the partnership and, to the extent
not inconsistent with Section 306 of this Act, any or all of the partners in the same action
or in separate actions.)
Although collection may be slow, it will most likely be satisfied by means of postjudgment
procedures, such as wage garnishments, citations, or payment plans. It may also be a feasible
alternative to place collection on hold until the debtors financial status improves, which would
cut down on the attorneys time and expense and also assure the creditor that the attorney is
diligently overseeing the creditors best interest.
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8. [1.37] Bankruptcy and Assignment for the Benefit of Creditors
After a claim has been forwarded to the attorney, the debtor in serious financial trouble may
file for relief in bankruptcy. A bankruptcy proceeding operates as an automatic stay on all court
proceedings other than the bankruptcy action. If a bankruptcy is filed, there are specific time
limitations for filing a proof of claim in the bankruptcy court. A proof of claim should be filed
except if the bankruptcy notice indicates that the bankruptcy is a no-asset bankruptcy. If it is a no-
asset bankruptcy and the creditor is not secured, the file should be closed as uncollectible. There
are certain circumstances under which the automatic stay may be lifted and the claim pursued.
Counsel should consult a bankruptcy attorney before reporting to the forwarder to ensure that all
options are considered. See Chapter 8 of this handbook.
If a power of attorney has been executed, the attorney may file a proof of claim on behalf of
the creditor. In cases involving small claims, it may be more economical and efficient for the
attorney to return the claim to the creditor with a proof of claim form and have the creditor file
directly with the bankruptcy court.
Under certain circumstances, creditors may file an involuntary bankruptcy against a debtor.
See 11 U.S.C. 303. The filing of an involuntary bankruptcy should be used only under
exceptional circumstances, and a bankruptcy attorney should be consulted so that the creditor
understands the risks.
A debtor in serious financial straits may choose to avail itself of the legal innovation known
as an assignment for the benefit of creditors, under which the debtor assigns all assets to a third
party, usually one specializing in this area, who liquidates all assets without the supervision
required in bankruptcy proceedings. Secured creditors and priority claims are paid first, and a pro
rata distribution is made to remaining creditors who assent to the assignment. Creditors should be
immediately notified of the assignment and the potential distribution. An assignment does not
operate as a stay, but collection is subject to the pro rata distribution. It is not uncommon for an
attorney to suggest to the forwarder or creditor to date up their files for a substantial period as the
process of liquidating all assets may be slow. Additionally, once a claim has been made, the
attorney and creditor will be put on notice of all pertinent developments. Assignments are
governed by both common law and statute.
9. [1.38] The Debt Protestor
The debt protestor utilizes arguments that originally arose among tax protestors that have
filtered over into defenses to consumer claims. These tax protestors relied on off-the-wall
arguments based on erroneous views of the Constitution and common law that challenged the
legitimacy of the federal government to assess taxes against them. These arguments now are
apparently being disseminated over the Internet to consumer debtors as a practitioner active in
collections repeatedly will see the same arguments from debtors with no apparent connection in
nearly the same words.
Many of these arguments are merely more complex versions of publishing an ad stating not
responsible for my debts in the legal notices section of a local newspaper. One argument claims

that since the plaintiff lent credit rather than money, the defendant can reciprocate by executing a
promissory note back to the plaintiff. This argument occasionally cites to an alleged policy of the
Federal Reserve and has been made with such frequency that the Federal Reserve was forced to
put out a notice regarding this scam. See Federal Reserve Board Supervision and Regulation
Letter SR 04-3 (Jan. 28, 2004), available at www.federalreserve.gov/boarddocs/srletters. Another
argument involves a frivolous argument relating to the Fair Credit Billing Act, 15 U.S.C. 1666,
et seq. The only way to deal with these arguments is take the case to judgment.
These litigants will serve interrogatories and file requests to admit and motions. The
practitioner must be particularly wary of the requests to admit as discussed in 1.80 below.
However, these litigants frequently have problems with court procedures and may not understand
basic concepts such as the requirement that motions must be noticed up for hearing. They also
frequently run afoul of the mandatory arbitration systems requirement of good-faith
participation. As a result, summary judgment or the arbitration typically ends the case.
A summary of these defenses can be found in Michael D. Johnson, The Ostrich Defense:
Internet Scams in Consumer Credit Collection, 61 Bench & B.Minn., No. 3, 22 (Mar. 2004), and
available at www2.mnbar.org/benchandbar/2004/march04/internet_scams.htm.
V. CHOOSING A REMEDY
A. [1.39] In General
Before filing suit, the attorney must know the law in the area of dispute. Although all actions
may be contract matters, the disputed area is likely governed by statute and caselaw. By knowing
the law, the attorney can report to the forwarder or creditor the potential difficulties of success.
Additionally, an attorney is statutorily obligated to investigate the facts and understand the law
before filing any pleading, motion, or paper.
Two initial considerations cannot be overemphasized. Regardless of the volume of

commercial litigation an attorney handles, the key to a successful and profitable disposition can
be summed up in one word efficiency. An attorney must organize and review his or her
workload to use his or her time and money efficiently. The attorney must dispose of his or her
cases as quickly as possible.
The other consideration that must be kept in mind is an understanding of what the client
hopes to obtain from the lawsuit and how far the client is willing to go to assist the attorney. For
example, out-of-state clients may not wish to send witnesses to Illinois for a trial. The attorney
should litigate the case with an eye to summary judgment or settlement if the client is unwilling
to enable the attorney to effectively try the case. On the other hand, if the client is willing to
attend a trial and the merits favor the client, the client may desire the attorney to take a more
aggressive posture.
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An objective evaluation of the plaintiffs case is essential. The attorney should determine the
difficulty in proving the case and rebutting any defenses if the case proceeds to trial. Factors to be
considered are the existence of supporting documentation and the availability of proper witnesses.
Lost or misplaced documents or the unavailability of a necessary witness may require a
settlement of the plaintiffs claim.
B. [1.40] Filing Suit
If the forwarder or creditor has requested immediate suit or the attorney has made a
recommendation to file suit, the attorney should send a suit requirement letter to the forwarder or
creditor. A suit requirement letter advises the forwarder or creditor of the costs needed to initiate
the action, states whether a suit fee or retainer will be required, and requests that certain
documents be provided, including an affidavit of claim to be attached to the complaint.
When requesting costs, the attorney must know both the forum in which the suit will be filed
and the amount of the claim as costs differ with both the forum and the amount in controversy.
The creditor always wants to choose the forum most advantageous to it allowed by law.
Therefore, the attorney should be cognizant of the creditors expectations.
Under certain circumstances, the creditor may proceed in district court if the subject matter or
parties fall within the courts limited jurisdiction. This option, if available, will speed up a
resolution. The creditor, however, must be available to testify and to immediately answer all
inquiries presented by the court and all pleadings and discovery.
1. [1.41] Venue
In consumer matters subject to the Fair Debt Collection Practices Act, venue must be
compliant with 15 U.S.C. 1692i(a), which states:
Any debt collector who brings any legal action on a debt against any consumer
shall
(1) in the case of an action to enforce an interest in real property securing

the consumers obligation, bring such action only in a judicial district or similar
legal entity in which such real property is located; or
(2) in the case of an action not described in paragraph (1), bring such
action only in the judicial district or similar legal entity
(A) in which such consumer signed the contract sued upon; or
(B) in which such consumer resides at the commencement of the action.
a. [1.42] Federal Court
In collection matters filed in federal court, attorneys frequently use 28 U.S.C. 1332 as the
basis for invoking the courts limited jurisdiction. Diversity jurisdiction requires that the parties

be from different states and that the amount in controversy exceed $75,000. Additionally, if the
subject matter involves a federal statute creating jurisdiction in federal courts, federal courts have
jurisdiction. When filing a federal complaint, the attorney must set forth the jurisdictional
allegations in the pleading.
b. [1.43] State Court
Most collection matters are filed in state court. Larger circuits will have administrative
divisions separated by the subject matter and amount in controversy of cases within their
jurisdiction. It is generally preferable to bring a collection action in state court as the procedural
rules are friendlier to creditors and compliance with the discovery rules tends to be less
expensive.
2. [1.44] Costs
The clerk of each court can provide a list of court costs. The attorney should know the costs
associated with filing each kind of lawsuit, issuing summons, jury demands, postjudgment, and
miscellaneous other expenditures, such as certifying a judgment or court copying costs. Sections
27.1a 27.2a of the Clerks of Courts Act, 705 ILCS 105/27.1a 27.2a, detail the costs with more
specificity. Costs payable to the sheriff, such as charges for the service of process, are also
typically taxable as costs. Other expenses to consider are discovery costs (including witness fees),
phone calls, copying costs, and messenger services. Effective January 1, 2008, a new statute, 735
ILCS 5/5-126.5, essentially made any fee payable to a court officer or a law enforcement officer
for enforcement of a judgment recoverable as a cost:
The plaintiff shall be allowed to recover as costs those expenses required by law or a
law enforcement or court officer for the purposes of enforcing a judgment including
levy bonds, replevin bonds, certification of court orders, recording certified orders
or memoranda of judgment, and expenses for those assisting a sheriff or other court
officer in enforcing court orders including, but not limited to, orders for possession,
replevin orders, and personal property levies.
Expenses (discovery costs, phone calls, copying costs, and messenger services) as opposed
to court costs are frequently considered to be part of an attorneys overhead and are typically
not advanced by the creditor. Clients normally decline to advance monies that are not paid to the
clerk of court, sheriff or private process server, court reporters, or witnesses under statutory fee
requirements. The attorney should not incur expenses he or she has not been advanced absent
clear alternative arrangements with the creditor or forwarder and should obtain advance
authorization before incurring other expenses. When the case is disposed of, counsel should
provide a full accounting of costs to the creditor and should return unexpended court costs.
C. [1.45] Affidavit of Claim and Suit Questionnaire
Along with the suit requirement letter, it is good practice to send to the forwarder or creditor
an affidavit of claim and a suit questionnaire letter. The affidavit of claim (see 1.109 below for a
sample) is to be completed by a knowledgeable representative of the creditors company, signed
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under oath, and notarized. It reveals the legal composition of the creditor and the balance due and
states whether the debtor is entitled to any setoffs. In many courts, both state and federal, this
document can be used to prove up damages if the defendant is in default. It also gives the attorney
the added protection of demanding and suing the debtor for the proper amount claimed.
The suit questionnaire asks questions about the creditor-debtor relationship and requests
relevant documentation. It enables the attorney to analyze the claim quickly and gives the
attorney a contact person. The suit questionnaire form can be tailored to different types of claims.
Essentially its importance is that unless an attorney is dealing with a direct client, the attorney
will not always have an opportunity to discuss the matter with the creditor before filing suit.
D. [1.46] Complaint
If the attorney has a volume practice, it is most economical and efficient to develop form
complaints that cover an array of situations that commonly arise. See the examples in 1.88
1.107 and 1.109 below. When the claim is founded on a written instrument or is for a liquidated
sum, the necessary exhibits that demonstrate the claim and the amount due should be attached.
735 ILCS 5/2-606. The complaint should also be verified by the creditor (not the attorney)
whenever possible. An attached affidavit of claim may serve as verification of the complaint. See
the example in 1.109 below. Courts usually allow judgment based on a plaintiffs verified
complaint when the defendant is in default.
A complaint may request prejudgment statutory interest at a rate of five percent pursuant to
2 of the Interest Act, 815 ILCS 205/2. Two possible bases for this allowance are that the claim is
an account stated or that vexatious delay has been the reason for nonpayment. However, some
courts will not allow the judgment to encompass this allegation without testimony from the
creditor. Once judgment is obtained, statutory interest at nine percent per annum accrues by law
(unless the debtor is a municipality in which case the interest rate is six percent). 735 ILCS 5/2-
1303. The interest, both prejudgment and postjudgment, can be useful for negotiations and
settlement purposes.
When a complaint is filed, a form letter should also be generated to the client advising that
suit has been filed on the claim.
E. [1.47] Confession of Judgment
735 ILCS 5/2-1301 provides for entry of confessed judgment if the instrument forming the
basis of the complaint so provides and has been clearly executed by the debtor. Consumer
transactions as of September 24, 1979, have been excluded even if a clause allowing this
confession is present. The instrument relied on must also be attached to the verified complaint.
Supreme Court Rule 276 permits the defendant to file a motion to open a confession of judgment
and have a trial on the merits. The defendant must file an affidavit, and the courts are liberal in
vacating confessions of judgment. Kuh v. Williams, 13 Ill.App.3d 588, 301 N.E.2d 151 (1st Dist.
1973). It is usually recommended that suit be filed on the instrument itself, as opening up the
confession at this time seems to be standard procedure of the courts.

Should the creditor proceed on a confession of judgment, the creditor will need to file a
summons to confirm the judgment by confession. This summons may be served via registered or
certified mail as set forth in S.Ct. Rule 291. The creditor may restrain the defendants assets
based on a confessed judgment but may not obtain a turnover of the defendants assets until the
judgment by confession is confirmed. Alternatively, a memorandum of judgment may be
recorded based on an unconfirmed judgment by confession.
F. [1.48] Mechanics Lien or Foreclosure
The remedies of filing a mechanics lien or foreclosing on a mortgage, when appropriate, are
effective methods of satisfying a debt. See the Illinois Mortgage Foreclosure Law, 735 ILCS
5/15-1101, et seq., and the Mechanics Lien Act, 770 ILCS 60/0.01, et seq. Both topics, however,
are extremely detailed in their respective requirements. Counsel should thoroughly review the
applicable statutes and caselaw and strictly comply with the statutory prerequisites of notice and
procedure as courts strictly adhere to the requirements.
VI. [1.49] SERVICE OF PROCESS
Service of summons is governed by 735 ILCS 5/2-201, et seq., and the Illinois Supreme
Court Rules. In Cook County First Municipal District Court (Chicago), local rules require the
plaintiff to use the sheriff to attempt service before the appointment of a private process server. In
other counties, a licensed private detective may serve process without court appointment. See 735
ILCS 5/2-202(a). If service is not successful, counsel may bring a motion asking the court for
leave to appoint a special process server. In counties other than Cook or counties with a
population of less than one million, process may be served without special appointment. S.Ct.
Rule 284 allows for service by certified or registered mail in small claims.
Should it become apparent that the debtor is evading service, the attorney should make a
motion to serve the defendant under 735 ILCS 5/2-203.1, which provides:
If service upon an individual defendant is impractical under items (1) and (2) of
subsection (a) of Section 2-203, the plaintiff may move, without notice, that the court
enter an order directing a comparable method of service. The motion shall be
accompanied with an affidavit stating the nature and extent of the investigation
made to determine the whereabouts of the defendant and the reasons why service is
impractical under items (1) and (2) of subsection (a) of Section 2-203, including a
specific statement showing that a diligent inquiry as to the location of the individual
defendant was made and reasonable efforts to make service have been unsuccessful.
The court may order service to be made in any manner consistent with due process.
A motion to obtain service through an alternative method requires an affidavit explaining

why previous attempts have failed and how the alternative methods will provide sufficient notice.
Such a procedure is frequently used to serve debtors by serving the front desk or security guard
when the debtor lives in a controlled-access apartment building or condominium. It can also be
used to serve the debtor at his or her workplace when the debtor appears never to be at home. The
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Second District Appellate Court affirmed an order allowing service in a divorce case in which the
movant obtained service by serving two of four people who were in regular contact with the
debtor, namely his mother, his girlfriend, and two lawyers who had recently represented him in
other matters. In re Marriage of Schmitt, 321 Ill.App.3d 360, 747 N.E.2d 524, 254 Ill.Dec. 484
(2d Dist. 2001).
The attorney should be familiar with how to obtain service on individuals, corporations,
partnerships, and associations and with service outside the state. If service problems on a
corporation are anticipated, the attorney should serve the registered agent. If service cannot be
made on the registered agent, or if the defendant is a foreign corporation doing business in Illinois
without the appointment of a domestic agent, the Secretary of State can then be served, as the
Secretary will be deemed to have been appointed the defendants agent for service of process
within Illinois. The Secretary of State has Affidavit of Compliance forms on its website at
www.cyberdriveillinois.com/departments/business_services/publications_and_forms/home.html
for every type of business entity. Each form provides detailed instructions regarding the
procedure for service via the Secretary of State and the additional steps that must be taken to
complete such service.
Service of summons in U.S. district court is governed by Federal Rule of Civil Procedure 4.
Immediate service of process is available through any nonparty, and process does not expire until
returned. However, under Rule 4(m), if the service of summons and complaint is not made on the
defendant within 120 days of the filing of the complaint and the party on whose behalf service
was required cannot show good cause why service was not made within this period, the action
against the defendant shall be dismissed without prejudice on the courts own initiative with
notice to the party or on motion.
VII. [1.50] APPEARANCE AND ANSWER
In Cook County Municipal Court cases (under $100,000 in outlying municipal districts and
$30,000 in downtown Chicago), if the claim is over $10,000, a defendant must file an answer
within 10 days after the return date. S.Ct. Rule 181(b)(1). If an appearance is not filed by the
return date, the defendant is defaulted, and an automatic default date is scheduled 14 days after
the return date. On the default date in contract cases, a default judgment may be entered; in tort
cases, an automatic prove-up date is set.
For certain types of actions, the Supreme Court Rules provide that service must be completed
a certain number of days in advance of the return date. While some courts have enacted rules
purporting to require service be completed further in advance, these local rules are invalid. See
Phalen v. Groeteke, 293 Ill.App.3d 469, 688 N.E.2d 793, 228 Ill.Dec. 95 (3d Dist. 1997) (holding
Will County local rule requiring service five days before return day invalid as inconsistent with
S.Ct. Rules 101(b) and 21(a)).
If a 30-day summons is used, the sheriff has 30 days after the summons is issued to effect
service. S.Ct. Rule 102(b). Once service is obtained, the defendant has 30 days to file an

appearance or other responsive pleading. S.Ct. Rules 101(d), 181(a). In the absence of an
appearance and responsive pleading, the plaintiff should file a special routine motion requesting a
default judgment. In Cook County, the format for this motion is set forth in the Law Division
Motion Rules.
In federal court, when service is obtained, the defendant has 20 days to answer and appear.
Fed.R.Civ.P. 12(a)(1). If the defendant does not do so, the court may enter a default. Fed.R.Civ.P.
55. Usually, the plaintiffs attorney will bring a motion, and the judge or the clerk will routinely
grant the plaintiff a default judgment if all required documentation is in order.
In all cases, once a determination of service has been made, it is imperative for counsel to
inform the forwarder so that the creditor will be put on notice as to the court timetables. Likewise,
once a determination has been made that the debtor is in default, the forwarder should be put on
notice so that the creditors file can be advanced accordingly.
If the defendant appears and answers, counsel should notify the forwarder and be prepared to
litigate the matter.
A. [1.51] Appearance and Jury Demand
The first consideration is whether the defendant is represented by an attorney or is

representing himself or herself (i.e., appearing pro se). The other consideration is whether the
defendant has filed a jury demand. In more populous counties, the filing of the jury demand will
trigger a completely different procedure before different judges. For example, in Cook County,
nonjury claims under $50,000 are assigned to a judge who will preside over all proceedings in the
case up to and including trial. However, if the defendant files a jury demand, all preliminary
matters will be heard by the arbitration section. The case then will go to mandatory arbitration
prior to a jury trial. If the arbitration result is rejected, the case will then be assigned to a judge in
the trial section.
1. [1.52] Appearance by Attorney
Once an appearance has been filed on behalf of the defendant, the case is usually set for trial
in accordance with local court practice. In the First Municipal District Court of Cook County,
cases under $10,000 receive a trial date 14 days after the return date on the summons if no jury
demand is filed. Cases over $10,000 are set for hearing 63 days later. In the small claims courts of
many other counties, cases are set on the return date or 7 days thereafter. However, the procedure
varies by county and judge.
If the defendant is represented by an attorney, it is usually much easier to determine the

defendants position. The defendants attorney should be contacted immediately to discuss the
case. If there is a defense to the action, the attorney is usually very helpful in providing details
and any available documentation. If there is no defense to the case, the defendants attorney may
inform counsel of this fact and merely attempt to secure his or her client time to satisfy the
liability. This demonstrates the importance of good working relationships with attorneys in the
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community to avoid stalling tactics and costly, time-consuming discovery procedures. It also
increases the likelihood of a quick, favorable settlement. A helpful defense attorney can
frequently convince a client to accept a settlement or payment arrangement that would otherwise
be impossible to consummate.
While it may seem unusual to encounter a helpful adversary, the defense of a collection claim
is usually not the highest priority in an attorneys office. The defense of a small claim is rarely
profitable. Most attorneys devote their energies to more profitable areas of their practices and
leave this defense to the last minute. As a result, a defense attorney is often anxious to dispose of
a collection case as quickly as possible to minimize his or her work on an unprofitable file. The
defense attorney considers it a job well done if he or she can arrange an acceptable payment
schedule or a lump-sum settlement or delay the entry of a judgment.
Unfortunately, counsel is also likely to encounter the uncooperative defense attorney. This
attorney is frequently quite difficult to contact and remiss in returning telephone calls because his
or her primary tactic is to stall. It is often difficult to determine if this attorneys client has a
defense, what supporting proof is available, and what disposition he or she favors.
The most effective technique to counter these tactics is to work a file conscientiously. After
the defendant is required to appear for a deposition and answer detailed interrogatories, the
uncooperative defense attorney will learn that counsel intends to pursue the matter vigorously,
and he or she may consider a reasonable disposition.
2. Pro Se Appearance
a. [1.53] In General
If the defendant files an appearance on his or her own behalf, a different approach is required.
Most pro se defendants have little or no knowledge or understanding of legal procedures. The
defendant rarely mails an appearance and usually fails to contact the plaintiffs attorney prior to
the first trial date. As a result, it is difficult to engage in any discussions before the initial trial
date.
The pro se defendant also will frequently fail to properly notice up motions or fail to mail
motions that were properly spindled. As a result, the attorney should either check the court call on
a daily basis or subscribe to a service that will provide court call information.
When confronted with this situation in municipal court in Cook County, it is recommended
that the plaintiffs attorney simply await the outcome of the first trial date. If the defendant fails to
appear, the court will enter judgment for the plaintiff pursuant to a verified complaint. If the
defendant appears, the attorney can have the case passed and discuss the matter with the
defendant. The attorney should determine if there is a bona fide defense, whether the defendant
has any supporting documentation, if the case can be settled, and whether agreeable payment
terms can be arranged. If there is no defense, a judgment can be entered by agreement of the
parties. If the case cannot be settled and the defendant demands trial, a request for a continuance
would be proper, particularly in light of the failure of the defendant to mail a copy of his or her
appearance to the attorney as required.

In many counties, the defendant is required to appear in court on the return day, enabling a
discussion of the case. If the defendant fails to appear, a default judgment can be entered pursuant
to a verified complaint.
When faced with an adamant pro se defendant who refuses any settlement and demands a
trial, any appropriate motions or discovery should be filed. The defendants failure to adhere to
the Code of Civil Procedure may result in court sanctions or a default judgment.
b. [1.54] By Corporation
While 2-416 of the Code of Civil Procedure, 735 ILCS 5/2-416, allows a corporation to
prosecute or defend any claim under $2,500 through any officer, director, manager, or supervisor,
Supreme Court Rule 282(b) allows a corporation to defend any claim under $10,000 through an
officer, director, manager, or supervisor. While Rule 282(b) supersedes any inconsistent
provision in 2-416 (Adair Architects, Inc. v. Bruggeman, 346 Ill.App.3d 523, 805 N.E.2d 306,
281 Ill.Dec. 938 (3d Dist. 2004)), these provisions are inconsistent only with respect to defense of
small claims matters. Corporations may prosecute only claims of $2,500 or less.
NOTE: 735 ILCS 5/2-416 prohibits a corporation from appearing pro se as an assignee of an
assigned claim. Therefore, neither a collection agency nor a corporate debt buyer plaintiff may
appear pro se.
When a corporation files a pro se appearance in a claim over $10,000, it is advisable to file a
motion to strike the appearance and any other pleadings filed. If the corporation fails to respond
to the motion, an order of default will be entered, and the court also may enter judgment. If a
representative of the corporation appears in response to the motion, the court will explain the law
and probably grant leave to obtain an attorney. It is a good idea to discuss the case with the
corporate representative, who is generally more willing to consider making payment when
confronted with the cost of retaining counsel. This motion is a very effective way to obtain a
judgment or a mutually acceptable settlement.
3. Nature of Claim
a. [1.55] Small Claims
Common sense dictates that larger claims are potentially more profitable and should be given
more attention than smaller claims. The Supreme Court Rules create special procedures for small
claims in S.Ct. Rules 281 289. As noted in 1.54 above, a small claim is a claim for less than
$10,000. S.Ct. Rule 281.
While Supreme Court 283 states that a small claims complaint need only state the name and
address of the plaintiff, the name and address of the defendant, and the amount claimed, this
provision is permissive and intended for pro se plaintiffs. Attorneys need not (and should not) use
the forms provided by the clerk. Attorneys should use their training and knowledge to file a more
appropriate complaint.
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(1) [1.56] Answer to complaint
Small claims require no pleadings from the defendant unless required by the court. Rules
requiring pleadings of specific defenses are inapplicable to small claims.
(2) [1.57] Discovery proceedings
Discovery is not allowed in small claims cases except with leave of court.
(3) [1.58] Motions
Additional limitations exist with regard to motions in small claims cases. Except as provided
in 735 ILCS 5/2-619 and 5/2-1001, no motion shall be filed in small claims cases without prior
leave of court. S.Ct. Rule 287(b).
(4) [1.59] Informal hearings
S.Ct. Rule 286(b) allows informal hearings in small claims cases:
In any small claims case, the court may, on its own motion or on motion of any
party, adjudicate the dispute at an informal hearing. At the informal hearing all
relevant evidence shall be admissible and the court may relax the rules of procedure
and the rules of evidence. The court may call any person present at the hearing to
testify and may conduct or participate in direct and cross-examination of any
witness or party. At the conclusion of the hearing the court shall render judgment
and explain the reasons therefor to all parties.
The relaxed rules of evidence and procedure can expedite a resolution of the case. It is obvious
that many of these rules greatly benefit the defendant, who is not burdened with pleadings or
motions that are common in claims over $10,000. It is in the plaintiffs best interest to quickly
determine the nature of the defense to a small claim action. Counsel should discuss the case with
the defendant or the defendants attorney and then evaluate the plaintiffs case and recommend a
course of action.
If the defendant or the defendants attorney remains uncooperative, it is recommended that a

motion for leave of court to initiate discovery be filed pursuant to S.Ct. Rule 287(a). This motion
should state that the plaintiff is unaware of any defense to the complaint, that the defendant has
failed to provide this information, and that the plaintiff is unable to determine the appropriate
witnesses to provide at trial. The motion should set forth the specific form of discovery requested.
Since answers to the complaint rarely set forth details of any defense, written interrogatories will
provide the most information. It is recommended that a limited number of interrogatories be
prepared with the motion. They can be filed instanter if the motion is granted.
A better way to flush out a defense is to request leave to file a motion for summary judgment
pursuant to 735 ILCS 5/2-1005. This approach is particularly desirable if the plaintiff will have to

present a records witness from outside of the local area as part of its case-in-chief. If the motion
for leave to file is allowed, the defendant will be compelled to present a defense under oath in
order to resist the motion for summary judgment unless the defendant has a legitimate defense (in
which case settlement should be strongly considered).
b. [1.60] Claims of $10,000 $50,000
Claims over $10,000 usually require more attention and work. Motions, discovery, pretrial
conferences, and arbitration should be used to narrow the issues and obtain resolution of the claim
or judgment without trial. It is important to separate the larger, more complicated matters from
the more routine small claims. The failure to do so will result in an inefficient allocation of an
attorneys time and a less profitable practice.
S.Ct. Rule 222, which governs claims between $10,000 and $50,000, provides for the
following:
1. an affidavit regarding the amount of damages sought for any complaint seeking less than
$50,000 (if an attorney believes that he or she will be seeking more than $50,000, this
affidavit should not be filed as any award in excess of $50,000 will automatically be
remitted); see Grady v. Marchini, 375 Ill.App.3d 174, 874 N.E.2d 179, 314 Ill.Dec. 269
(4th Dist. 2007) (affirming trial courts decision to reduce $97,700 verdict to $50,000
because the plaintiff failed to file Rule 222(b) affidavit) (S.Ct. Rule 222(b));
2. mandatory disclosure of the parties contentions, claims, defenses, and potential

witnesses, which should be filed within 120 days of the filing of a responsive pleading
(failure to comply will result in the automatic exclusion of any evidence not timely
produced under S.Ct. Rule 222(g)) (S.Ct. Rules 222(c), 222(d));
3. an affidavit that disclosure is complete when the initial disclosure is filed and on each
occasion that the disclosures are updated (S.Ct. Rule 222(e)); and
4. streamlined discovery procedures (S.Ct. Rule 222(f)).
PRACTICE POINTER
9 Grady, supra, is potentially applicable in all cases, although no reported decision has
addressed the effect of a contrary ad damnum clause or a clear claim for a liquidated
amount in excess of $50,000 in the complaint. However, until this issue is resolved, it is
best to take a belt and suspenders approach and file a Rule 222(b) affidavit in any case
seeking an award in excess of $50,000.
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B. Nature of Defense
The nature of the defense should be determined as quickly as possible. Often the defense will
be detailed in correspondence or notes in the clients files. After reviewing the documentation,
counsel should contact the defendants attorney. Frequently, the defense set forth before suit will
differ from that asserted after suit has been filed. In evaluating the merits of a defense, the
following factors must be considered: (a) documentation in support of the defense; (b)
corroboration; (c) the expertise of the defendant; (d) the time that the defense was first raised; and
(e) the believability of the facts set forth by the defendant in light of customary business practice.
2. [1.62] Common Defenses
There are several standard defenses frequently asserted in commercial actions. Among the
most common are the following:
a. no mutual agreement to essential contract terms;
b. merchandise not received by the defendant;
c. merchandise received in a damaged or defective condition;
d. merchandise received not in conformance with specifications; and
e. bookkeeping discrepancy involving payments made and credits received.
Some of these defenses can be reviewed informally by sharing documentation that would
otherwise be subject to formal discovery.
The following are common defenses in consumer claims:
a. dispute over the balance owed (may involve allegedly uncredited payments);
b. nonperformance or defective performance by the plaintiff (in a services case);
c. problems with the goods; and
d. some sort of misconduct by the creditor barring collection of the claim.
When the defense is more complicated, discovery must be initiated. Depositions are particularly
valuable when the defense involves expert testimony or a complicated set of facts.

C. [1.63] Collectibility
The most important consideration in handling a claim is its collectibility. A solvent defendant
with minimal liabilities and no outstanding judgments is more collectible than a defendant who is
out of business and without attachable assets. Collectibility should determine the most practical
and efficient disposition of a case.
Frequently there is no defense to a lawsuit, and the defendant is merely attempting to

compromise the debt. In situations in which the defendant is pleading poverty, the attorney for
the plaintiff must decide whether to press for an immediate judgment or cooperate with the
defendants attorney. This decision is based on the collectibility of the claim. The attorney should
obtain financial records of the defendant, including federal income tax returns, a balance sheet,
and a profit-and-loss statement. If collection of the full balance is unlikely, a payment plan or
compromise settlement figure should be negotiated. Sometimes, such a settlement becomes a
necessity in light of practical considerations.
The following are common settlement provisions:
1. lump-sum settlement;
2. payment plan to liquidate the full amount of the claim;
3. payment plan to liquidate a compromise settlement figure;
4. judgment by agreement for the full amount claimed, to be satisfied by the payment of a
lesser sum within a specified time period;
5. dismissal of the case with leave to reinstate in the event of a default;
6. judgment by agreement with a stay of execution for a specified time period; and
7. judgment and an installment payment order pursuant to S.Ct. Rule 288, which provides
that a court may order that the judgment be paid in installments over three years;
additional discussion of Rule 288 can be found in 2.9 of this handbook.
In Director of Insurance v. A & A Midwest Rebuilders, Inc., 383 Ill.App.3d 721, 891 N.E.2d
500, 322 Ill.Dec. 485 (2d Dist. 2008), the appellate court explained that while all dismissals
whether with or without prejudice become final judgments after 30 days, an Illinois court may
retain jurisdiction to enforce a settlement even when the cause has been dismissed with prejudice
by agreement. The appellate court noted that Illinois does not follow the federal court rule that
requires such settlement agreements to be incorporated verbatim into a court order or consent
judgment.
Each of the provisions above is appropriate in certain situations. A written stipulation should
be drafted that specifies payment amounts, dates, and terms. The stipulation should also include
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an acknowledgment of the debtor so that, in the event of a default, the creditor can reinstate the
case (if necessary) and enter judgment. The stipulation must be signed by all parties and filed
with the court.
The stipulation is a valuable tool allowing the defendant an opportunity to satisfy the debt
while affording the plaintiff maximum protection in the event of default. See the example in
1.108 below.
D. [1.64] Summary
All preliminary considerations must be evaluated before determining the best course of
action. If a compromise settlement is the most prudent disposition, this should be recommended
to the client. If the facts do not justify a settlement and the case can be reduced to judgment
without trial, counsel should proceed with any applicable motions or discovery as discussed in
1.65 1.81 below.
E. [1.65] Motions with Respect to Default
It is not uncommon for the defendant or the defendants attorney to file an appearance and
then fail to file an answer, when required, or fail to appear in court on the trial date, in which case
the plaintiff may file a motion for an order of default and for judgment in favor of the plaintiff.
The Servicemembers Civil Relief Act, 50 U.S.C.App. 501, et seq., requires that the plaintiff
file an affidavit describing whether the defendant is in military service before the entry of a
default judgment. 50 U.S.C.App. 521. Most Illinois circuit courts have a form affidavit of
military service to comply with this provision. A default judgment cannot be entered against an
active duty servicemember, and other protections under the Act will be triggered by the filing of
this affidavit. Some courts do not require military affidavits. Instead, they liberally vacate
judgments against active duty military personnel.
1. [1.66] Default Judgment Based on Failure of Defendant To File Answer
S.Ct. Rule 181(b)(1) applies when an appearance is required on a specified day and allows
the defendant an additional ten days to file an answer:
When a defendant appears in open court, the court shall require him to enter an
appearance in writing. When an appearance is made in writing otherwise than by
filing an answer or motion, the defendant shall be allowed 10 days after the day for
appearance within which to file an answer or motion, unless the court, by rule or
order, otherwise directs.
Frequently, the defendant is granted leave to file an answer within a specified number of
days. If the answer is not filed in the allotted time, the burden shifts to the plaintiff to obtain an
order of default against the defendant and for judgment in favor of the plaintiff. However, if the
plaintiffs attorney is aware of any circumstances preventing the defendant from filing an answer,
the motion should not be brought immediately since doing so would alienate the defendants
attorney, who would prevail upon a showing of reasonable diligence.

2. [1.67] Ex Parte Judgment Based on Failure of Defendant To Appear in Court
If the defendant fails to appear in court on the trial date, an ex parte judgment may be entered
in favor of the plaintiff if there is a verified complaint for liquidated damages. The plaintiff
should not take judgment against a defendant represented by counsel unless the defense attorney
has ignored all correspondence and phone calls and has generally demonstrated no interest in
resolving the lawsuit. An attorney should not be too eager to pursue an ex parte judgment against
a defendant represented by counsel since it is common practice to grant a defendants motion to
vacate such a judgment if the motion is brought within 30 days from the date of the judgments
entry:
The court may in its discretion, before final order or judgment, set aside any
default, and may on motion filed within 30 days after entry thereof set aside any
final order or judgment upon any terms and conditions that shall be reasonable. 735
ILCS 5/2-1301(e).
Both of these motions for default judgment demonstrate the importance of filing a verified
complaint. If the complaint is not verified, a prove-up will be required for the entry of a
judgment, thus requiring yet another court appearance, at which time the client must appear to
prove up the case or submit an affidavit accepted by the court. This additional step is
inconvenient and unnecessary since most commercial claims involve liquidated damages arising
from open accounts or the sale of goods, wares, and merchandise. The verification can be
accomplished by attaching an affidavit of claim to the complaint.
3. [1.68] Notice of Entry of Default Order
Section 2-1302(a) of the Code of Civil Procedure requires that notice of an order of default
must be given to the defendant or the defendants attorney of record. 735 ILCS 5/2-1302(a).
While the failure to provide notice does not affect the validity of the order, it will be an issue in
any motion to set aside the judgment.
4. [1.69] Responding to a Noncompliant Answer
If the defendant responds with an answer that does not comply with the Code of Civil
Procedure, the plaintiff should file a motion for an answer compliant with 735 ILCS 5/2-610 and
S.Ct. Rule 136.
Section 2-610 addresses the requirement of specificity in pleadings:
(a) Every answer and subsequent pleading shall contain an explicit admission
or denial of each allegation of the pleading to which it relates.
(b) Every allegation, except allegations of damages, not explicitly denied is

admitted, unless the party states in his or her pleading that he or she has no
knowledge thereof sufficient to form a belief, and attaches an affidavit of the truth
of the statement of want of knowledge, or unless the party has had no opportunity to
deny.
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(c) Denials must not be evasive, but must fairly answer the substance of the
allegation denied.
(d) If a party wishes to raise an issue as to the amount of damages only, he or

she may do so by stating in his or her pleading that he or she desires to contest only
the amount of the damages.
S.Ct. Rule 136 provides:
(a) Form of Denials. If a pleader can in good faith deny all the allegations in a
paragraph of the opposing partys pleading, or all the allegations in the paragraph
that are not specifically admitted, he may do so without paraphrasing or separately
describing each allegation denied.
(b) Pleadings After Reply. Unless the court orders otherwise, no response to a
reply or subsequent pleading is required and any new matter in a reply or
subsequent pleading shall be taken as denied.
These provisions do not permit the general denial of an entire pleading. A party is required to
answer each allegation of a pleading paragraph by paragraph. If some allegations of a paragraph
are to be admitted and others denied, the pleader may state specifically which facts are admitted
and deny the remaining allegations.
The plaintiffs attorney should prepare a motion to strike any pleadings filed on behalf of the
defendant that are insufficient under 2-610. However, motions with respect to any other defects
in pleadings should be brought under 735 ILCS 5/2-615, which sets forth the available forms of
relief.
F. [1.70] Motions with Respect to Pleadings
Section 2-615 of the Code of Civil Procedure is a very broad provision for attacking the legal
sufficiency of a pleading, allowing a party to proceed on a motion for judgment or a motion to
strike a pleading based on the pleadings legal insufficiency:
(a) All objections to pleadings shall be raised by motion. The motion shall
point out specifically the defects complained of, and shall ask for appropriate relief,
such as: that a pleading or portion thereof be stricken because substantially
insufficient in law, or that the action be dismissed, or that a pleading be made more
definite and certain in a specified particular, or that designated immaterial matter
be stricken out, or that necessary parties be added, or that designated misjoined
parties be dismissed, and so forth.
(b) If a pleading or a division thereof is objected to by a motion to dismiss or

for judgment or to strike out the pleading, because it is substantially insufficient in
law, the motion must specify wherein the pleading or division thereof is insufficient.

(c) Upon motions based upon defects in pleadings, substantial defects in prior
pleadings may be considered.
(d) After rulings on motions, the court may enter appropriate orders either to
permit or require pleading over or amending or to terminate the litigation in whole
or in part.
(e) Any party may seasonably move for judgment on the pleadings. 735 ILCS
5/2-615.
Section 2-615 motions with respect to pleadings may be used by an attorney in a variety of
situations. For example, a pro se defendant frequently files an answer that fails to address the
allegations of the complaint and is legally insufficient. Usually the answer recites a story of how
the defendant has no money or why the plaintiff is not entitled to any money. While such an
answer details an unfortunate situation of the defendant, it clearly violates the requirements of
2-615. The attorney should file a motion to strike the defendants answer or a motion for
judgment on the pleadings, specifying the defects in the pleading attacked.
The court will probably allow the defendant leave to file an amended answer unless the
defendant admits the money was owed. If the defendant fails to file the amended answer, the
plaintiff can proceed on a motion for an order of default and a default judgment.
Section 2-615(e) allows any party to move for judgment on the pleadings. It was established
in Tompkins v. France, 21 Ill.App.2d 227, 157 N.E.2d 799 (1st Dist. 1959), that a motion for
judgment on the pleadings submits to the court that there is no issue of fact to be tried, and the
movant is entitled to judgment under the averments and admissions made by the pleadings. While
a motion for summary judgment may be based on affidavits and documents revealing that no
issue of fact is involved, a 2-615 motion for judgment on the pleadings may be based only on
admissions in the pleadings and all inferences to be drawn from them.
G. [1.71] Responding to the Affirmative Defense
Under Illinois law, affirmative defenses must be pled in cases that are not small claims.
Affirmative defenses are enumerated in 735 ILCS 5/2-613(d):
The facts constituting any affirmative defense, such as payment, release,

satisfaction, discharge, license, fraud, duress, estoppel, laches, statute of frauds,
illegality, that the negligence of a complaining party contributed in whole or in part
to the injury of which he complains, that an instrument or transaction is either void
or voidable in point of law, or cannot be recovered upon by reason of any statute or
by reason of nondelivery, want or failure of consideration in whole or in part, and
any defense which by other affirmative matter seeks to avoid the legal effect of or
defeat the cause of action set forth in the complaint, counterclaim, or third-party
complaint, in whole or in part, and any ground or defense, whether affirmative or
not, which, if not expressly stated in the pleading, would be likely to take the
opposite party by surprise, must be plainly set forth in the answer or reply.
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If the defendant files an affirmative defense, the plaintiff must respond to the affirmative
defense. Failure to respond to the affirmative defense admits the facts pled in the defense.
However, the affirmative defense must be fact-pled like any other pleading in Illinois. Richco
Plastic Co. v. IMS Co., 288 Ill.App.3d 782, 681 N.E.2d 56, 224 Ill.Dec. 74 (1st Dist. 1997).
Defendants frequently notice-plead affirmative defenses, which is improper in Illinois. When
confronted with an improperly pled defense, the attorney should move to strike it.
Many defenses that a debtor may attempt to raise in a collection action are affirmative
defenses. When a litigant fails to set out affirmative defenses in his or her answer or reply, the
litigant has waived the defense, and it may not be considered even though the evidence may
suggest the existence of the defense. Afshar, Inc. v. Condor Air Cargo, Inc., 250 Ill.App.3d 229,
621 N.E.2d 126, 190 Ill.Dec. 257 (1st Dist. 1993); Eckel v. Bynum, 240 Ill.App.3d 867, 608
N.E.2d 167, 181 Ill.Dec. 94 (1st Dist. 1992).
PRACTICE POINTER
9 Even though the statute of limitations is an affirmative defense that may be waived,
FDCPA cases hold that a suit on a contract when the statute has run violates the Act.
Contracts for the sale of goods have a four-year statute according to the Illinois Uniform
Commercial Code. 810 ILCS 5/2-725. This statute includes retail sale installment
contracts for goods and automobiles.
H. [1.72] Summary Judgment
Summary judgment is an effective means of reducing a case to judgment prior to trial. It is

especially important when an actual trial would require the expense of travel and lodging for an
out-of-town witness. 735 ILCS 5/2-1005 sets forth the requirements for summary judgment. A
plaintiff can move for summary judgment at any time after the return day or time for appearance
has passed.
The primary steps an attorney must keep in mind in moving for summary judgment in a
collection case are having the supporting affidavits in the proper form as set forth in S.Ct. Rule
191, showing personal knowledge of the affiant of the relevant facts, and using these affidavits to
lay a proper foundation for the attached documents. See Hon. Barbara A. MacDonald, The Top 10
Ways To Avoid Losing a Motion for Summary Judgment, 92 Ill.B.J. 128 (2004).
The other issue that must be kept in mind is that standard pretrial orders in use in many
jurisdictions may set a deadline for the filing of dispositive motions. Local rules, such as Cook
County Circuit Court Rule 2.1(f), which provides that summary judgment motions must be filed
at least 45 days before trial date, may also create firm deadlines. Summary judgment motions
must be filed prior to these deadlines. S.Ct. Rule 191(a). If out-of-town witnesses will be
necessary if the motion is denied, the motion should be filed well before the deadline to enable
the client to make appropriate arrangements should a trial be necessary.

While 735 ILCS 5/2-1005(a) and 5/2-1005(b) state that the motion may be made with or
without supporting affidavits, affidavits usually will be required unless the defendant has filed an
answer or other responsive pleading that admits the allegations of the complaint, in which case
the plaintiff could also proceed on a motion for judgment on the pleadings pursuant to 735 ILCS
5/2-615. However, when affidavits or the transcripts of depositions are necessary to establish that
no issue of fact exists, the proper motion is for summary judgment and not for judgment on the
pleadings. This distinction was made in Tompkins v. France, 21 Ill.App.2d 227, 157 N.E.2d 799
(1st Dist. 1959).
The attorney must consult the applicable circuit court rules to determine whether there is a
notice of motion requirement, the details of which vary from county to county.
I. Other Provisions of Interest
1. [1.73] Bill of Particulars
The bill of particulars complements the use of motions and discovery procedures. However,
much of the information requested in a bill of particulars can be obtained through alternate
means. The bill of particulars is governed by 735 ILCS 5/2-607.
Although the bill of particulars is a tool for the defendant, 2-607(c) is particularly applicable
to commercial actions. Section 2-607(c) provides for the admission of certain items of
indebtedness if they are not specifically denied:
If a bill of particulars, in an action based on a contract, contains the statement of

items of indebtedness and is verified by oath, the items thereof are admitted except
in so far as the opposite party files an affidavit specifically denying them, and as to
each item denied states the facts upon which the denial is based, unless the affidavit
is excused by the court. 735 ILCS 5/2-607(c).
Note that this provision comes into play only if the defendant specifically requests a bill of
particulars. Otherwise, a plaintiff should use a Rule 216 request to admit facts to obtain specific
admissions.
2. [1.74] Responding to the Motion to Dismiss
Section 2-612(b) of the Code of Civil Procedure addresses the issue of insufficient pleadings:
No pleading is bad in substance which contains such information as reasonably

informs the opposite party of the nature of the claim or defense which he or she is
called upon to meet. 735 ILCS 5/2-612(b).
Section 2-612(b) can be cited in response to a defendants motion to strike a complaint based on
735 ILCS 5/2-615. See 1.70 above. These motions are particularly common to contest the
sufficiency of form complaints.
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VIII. DISCOVERY AND PRETRIAL
A. Discovery
When properly used, discovery is an effective tool for ascertaining the truth and narrowing
the issues of a lawsuit. The general provisions governing discovery are set forth in S.Ct. Rules
201 224. A fundamental understanding of these rules can greatly expedite the handling of a
contested commercial lawsuit and is essential to a favorable resolution. Note that 1.76 1.81
below discuss discovery as it applies to commercial actions.
Section 2-1003(a-1) of the Code of Civil Procedure generally refers to discovery, stating that
it shall be in accordance with rules. 735 ILCS 5/2-1003(a-1). S.Ct. Rule 201 governs the
methods and scope of discovery. Discovery may be by written or oral deposition, written
interrogatories, inspection of documents or property, or physical or mental examination. S.Ct.
Rule 201(a). Discovery may not occur [p]rior to the time all defendants have appeared or are
required to appear without leave of court (S.Ct. Rule 201(d)), and discovery in small claims is
subject to S.Ct. Rule 287, which prohibits it in small claims except by leave of court (S.Ct. Rule
201(g)).
2. [1.76] Preliminary Considerations
The primary consideration concerning discovery is whether discovery is necessary since it

can be very expensive, complex, and time-consuming. It should be avoided whenever alternatives
are available to accomplish the same purpose.
Unless there is a potential issue as to whether the plaintiff performed all of its obligations
under a contract, the plaintiff should not have any difficulty making a prima facie case in a
collection action. Frequently, the truth can be determined and the issues narrowed through
cooperation with the defendants attorney. As noted in 1.52 above, the defense of a commercial
action is usually not a high priority in an attorneys practice. The defense attorney is frequently
willing to exchange documents and information and dispose of the case without the need for
time-consuming discovery. The goal of discovery is to obtain information, and one telephone call
may eliminate the need for a lengthy deposition.
3. [1.77] Interrogatories
Written interrogatories provide a useful and inexpensive means of obtaining information in

commercial actions. They are governed by S.Ct. Rule 213. The effective use of interrogatories
can provide information that clearly defines the issues. The major drawback is the amount of time
required for their preparation. However, preparation time can be minimized by using variations of
standard interrogatories, depending on the particular defense set forth. Since most commercial
lawsuits arise out of claims for goods, wares, and merchandise or for labor and services,
interrogatories should target the most frequently raised defenses. See 1.62 above. If the defense
is not known, general interrogatories touching on every phase of the transaction can determine the
defense. See the example at 1.110 below.

4. [1.78] Depositions
Depositions are an effective means of narrowing the issues and providing a face-to-face
confrontation with the defendant and the defendants attorney. Depositions also tend to be
expensive and are typically not used in collection matters unless a large claim is involved or the
debtor is presenting a complex defense.
Depositions are governed by S.Ct. Rules 202 212 and 217, which regulate their use in great
detail. Rule 202 describes purposes for which depositions may be taken in a pending action and
regulates depositions for discovery or for use as evidence. Rule 203 outlines where depositions
may be taken and when deponents may be required to attend. Rule 204 deals with subpoenas and
notice to parties. Rule 205(a) states that depositions may be taken within the United States before
an officer authorized to administer oaths or before any person appointed by the court. Rule 206
requires notice of the time and place of the examination, regulates the scope and manner of
examination and cross-examination, and provides that a record of the examination shall be taken
along with any objections. Rule 207 governs the signing and filing of depositions. Rule 208 states
that the party requesting the deposition shall pay the fees of the witness and of the officer and the
recording charges. Rule 209(b) provides that if the party serving notice of deposition fails to
attend, to proceed, or to serve a subpoena or notice, he or she may be liable for the expenses of
any party that attends. Rule 210(a) states that depositions on written questions must be served
pursuant to notice. Rule 211 governs objections as to notice, disqualification of an officer or
person, competency of the deponent, or admissibility of testimony. Rule 212 states the purposes
for which evidence and discovery depositions may be used. Rule 217(a)(1) provides that in the
case of depositions for the purpose of perpetuating testimony, a verified petition is required. It is
recommended that these Supreme Court Rules be reviewed for a more detailed analysis. See also
1.111 below for a notice of deposition.
The oral examination should proceed to develop the facts in an orderly manner. It is advisable
to outline the questions to be asked to ensure that all possible points of controversy will be
covered. Before proceeding with the deposition, counsel should obtain as much documentary
evidence as possible and present these relevant documents in the course of the examination.
5. [1.79] Discovery of Documents
S.Ct. Rule 214 governs the discovery of specified documents, objects, and tangible things for
inspection, copying, reproduction, photographing, testing, or sampling. It enables the plaintiffs
attorney to obtain copies of all relevant documents in the defendants possession. A party served
with a written request pursuant to Rule 214 must produce the requested documents as they are
kept in the usual course of business or organized and labeled to correspond with the categories in
the request, and all retrievable information in computer storage in printed form.
Rule 214 requires the following:
a. One copy of the request shall be served on all other parties entitled to notice. Under the
local rules of certain courts, this request and certificate of service will need to be filed with the
court.
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b. The party served with the written request shall either comply with the request within the
time specified (not less than 28 days) or serve on the requesting party written objections either to
all or to part of the request.
c. If written objections are made to a part of the request, the objecting party still must
comply with the remainder of the request within the allotted time.
d. Any objection to the request or refusal to respond shall be heard by the court upon
prompt notice and motion of the party submitting the request.
The party producing documents is required to furnish an affidavit stating whether the
production is complete in accordance with the request. This was previously required only if the
party initiating the request required the producing party to do so. There is an additional
requirement that a party must seasonably supplement any prior response to the extent of
documents, objects or tangible things which subsequently come into that partys possession or
control or become known to that party. Id.
It should be noted that S.Ct. Rule 237 is the provision governing the production of a party or
documents at trial. The form of the notice to produce under Rule 237 is very similar to that under
Rule 214. However, it is a means of preparing for trial, not a form of discovery. See also the
sample notice in 1.112 below.
6. [1.80] Request for Admission of Facts and Genuineness of Documents
Requests for admissions can simplify issues at trial by obtaining agreement as to certain
noncontroverted facts. For example, admissions can resolve the placement of an order for
merchandise, the execution of a contract, the receipt and condition of merchandise, and the total
payments made. The genuineness of any contracts, invoices, or correspondence also can be
established.
The request should be filed as soon as possible since this enables the attorney to determine
whether further discovery will be necessary. Some matters within the scope of admissions also
may be subject to written interrogatories.
Admissions are governed by S.Ct. Rule 216, which provides that any party may serve a
request for admission of any specified relevant fact on any other party. S.Ct. Rule 216(a). Rule
216(b) provides for the admission of the genuineness of any relevant documents. If copies of the
documents have not already been furnished, copies must be served with the request.
Admissions requested are deemed admitted unless the party to whom the request is directed
either specifically denies in a sworn statement the truth of the requested admissions, setting forth
in detail the reasons why he or she cannot truthfully admit or deny these matters, or files written
objections on the ground that some or all of the requested admissions are privileged or irrelevant.
S.Ct. Rule 216(c). If the objections go to only a part of the request, the remainder of the request
must be answered within the designated period. The party to whom the request is directed must

provide a sworn statement of denial or written objections within 28 days from the date of service
and must serve this response on the party requesting the admission. See the example in 1.113
below.
The Supreme Courts decision in P.R.S. International, Inc. v. Shred Pax Corp., 184 Ill.2d
224, 703 N.E.2d 71, 234 Ill.Dec. 459 (1998), which permitted requests to admit ultimate facts,
dramatically raised the stakes in propounding and responding to Rule 216 requests and created a
flurry of litigation involving Rule 216 requests. In P.R.S., the defendant served a set of requests to
admit on the plaintiff, requesting that the plaintiff admit to facts that it repudiated and breached
the contract on which the action was brought. The Supreme Court held that the plaintiff admitted
these ultimate facts by failing to respond. In Montalbano Builders, Inc. v. Rauschenberger, 341
Ill.App.3d 1075, 794 N.E.2d 401, 276 Ill.Dec. 506 (3d Dist. 2003), the appellate court followed
P.R.S. International and held that a defendant who failed to respond to the statement that he owed
$95,360 admitted liability, and judgment was properly entered against him.
A motion for leave to file untimely answers to a request to admit can be granted only with
good cause shown. Bright v. Dicke, 166 Ill.2d 204, 652 N.E.2d 275, 209 Ill.Dec. 735 (1995).
Inconsistent appellate decisions interpreting the good cause shown requirement led to the
Supreme Courts decision in Vision Point of Sale, Inc. v. Haas, 226 Ill.2d 334, 875 N.E.2d 1065,
314 Ill.Dec. 778 (2007), in which the court clarified the requirements for a proper response to a
request to admit and the good cause standard for permitting an untimely response. The
Supreme Court first overruled a line of appellate court decisions that had interpreted Bright,
supra, to mean that good cause for a late response to a request to admit could never be shown
by inadvertence, mistake or attorney neglect. 875 N.E.2d at 1065. The Supreme Court stated
that what constituted good cause in any given case was left to the discretion of the trial judge
under S.Ct. Rule 183(a). 875 N.E.2d at 1078 1079. The Supreme Court emphasized this good
cause inquiry was limited to assessing the movants explanation of why his response was not
timely filed. 875 N.E.2d at 1069. Other circumstances, such as unrelated misconduct by the party
that served the requests to admit, are not proper considerations.
The Supreme Court in Haase also overruled Moy v. Ng, 341 Ill.App.3d 984, 793 N.E.2d 919,
276 Ill.Dec. 160 (1st Dist. 2003), which had held that responses to Rule 216 requests must be
signed by a party. The Supreme Court held that a response signed by an attorney and verified by
the client complied with Rule 216. The Supreme Court also held that a failure to comply with a
circuit court local rule requiring filing of discovery responses does not result in requests being
deemed admitted since Rule 216 requires only service on the propounding party.
7. [1.81] Consequences of Refusal To Comply with Rules or Orders
The specific sanctions for failure to comply with rules of discovery or pretrial are governed
by S.Ct. Rule 219. Any motion for sanctions must adhere to S.Ct. Rule 201(k). The party
initiating the discovery may move the court for an order compelling compliance with discovery.
S.Ct. Rule 219(a). Notice must be sent to all persons affected by the motion. Rule 219(b) provides
for expenses incurred due to an erroneous refusal to admit the genuineness of any documents or
the truth of any matters of fact. Rule 219(c) provides broad sanctions for the failure to comply
with any provision of S.Ct. Rules 201 224 or any order entered under these rules. In addition to
specific remedies provided elsewhere, the court may enter any of the orders listed in Rule 219(c).
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B. Pretrial Conference
The pretrial conference is a valuable tool in settling a case before trial. It provides an
opportunity for all parties to discuss with the judge the facts of the case and the possibility of
settlement. The judge may simplify issues and pleadings and may attempt to resolve the lawsuit
based on an objective analysis of each partys position.
The attorney should be completely familiar with the case and should be in possession of all
necessary documentation before appearing at the pretrial conference. This documentation
includes the contract, invoices, statements, proof of delivery, and correspondence between the
parties. When animosity between the parties prevents a settlement, it is advisable to have all
parties present at the pretrial conference. The judge can explain the realities of proceeding to trial
and can frequently persuade a stubborn party to consummate a settlement.
2. [1.83] Case Management Conference
S.Ct. Rule 218(a) requires that an initial case management conference be held by the court
within 35 days after the parties are at issue and no longer than 182 days after the filing of the
complaint. Specific issues to be considered are listed. Rule 218(b) provides for a subsequent case
management conference.
C. [1.84] Arbitration
S.Ct. Rules 86 95 provide a framework for mandatory arbitration proceedings. Judicial

circuits may request approval from or be directed by the Supreme Court to implement a
mandatory arbitration program. The judicial circuits can adopt additional rules and determine
which classification of cases will be heard in arbitration. S.Ct. Rule 86(c).
Judicial circuits have implemented a variety of arbitration programs. Many include actions
between $10,000 and $30,000. See, e.g., Cook County Circuit Court Rule 18.3(b). Individual
circuit court programs and local rules must be consulted in each jurisdiction. The filing of a jury
demand frequently triggers the arbitration provisions even in cases that would otherwise be
considered small claims.
S.Ct. Rule 88 provides that the parties will be given 60 days notice of the arbitration. Upon
receiving a date for the mandatory arbitration, counsel should immediately contact the client to
make arrangements with respect to the arbitration. If the client is not located in the local area, a
motion should be made to either excuse the witness or make arrangements to appear by
telephone. All arbitration-related motions must be filed in the circuit court. Motions to continue
arbitrations cannot be presented to the panel of arbitrators as they lack the power to reset the
arbitration. Counsel should also file a Rule 90(c) packet as soon as possible. S.Ct. Rule 90(c)
provides that foundations do not need to be made for documents filed more than 30 days in
advance of the arbitration.

The arbitration is heard by three arbitrators, who typically are all lawyers. S.Ct. Rule 87(b).
The arbitrators rule on all issues of evidence and procedure. While the rules provide for a three-
hour time limit, the arbitrators will try to move the case along so that it finishes in less time. All
issues must be presented to the arbitrators. In collection cases, this means that claims for
attorneys fees and prejudgment interest must be presented at the arbitration. In Cruz v.
Northwestern Chrysler Plymouth Sales, Inc., 179 Ill.2d 271, 688 N.E.2d 653, 227 Ill.Dec. 960,
(1997), a case involving a statutory attorneys fees provision, the Illinois Supreme Court held that
a party seeking attorneys fees must present such claims to the arbitration panel and that the
circuit court could not add attorneys fees to an arbitration award when fees were not awarded by
arbitration panel.
The creditor should also serve a request to appear on the defendant pursuant to S.Ct. Rule
237(b) prior to the arbitration. If the defendant fails to appear after being served with a Rule
237(b) notice, the creditor can move for a sanction pursuant to S.Ct. Rule 90(g), which provides
that a party who fails to appear can be barred from rejecting the arbitration result. See Hinkle v.
Womack, 303 Ill.App.3d 105, 707 N.E.2d 705, 236 Ill.Dec. 578 (1st Dist. 1999).
A party can also be barred under S.Ct. Rule 91(b) for not participating in good faith. See
Amro v. Bellamy, 337 Ill.App.3d 369, 785 N.E.2d 939, 271 Ill.Dec. 745 (1st Dist. 2003). This is
important for plaintiffs to remember as reported decisions applying this theory do not necessarily
involve disruptive parties but typically involve represented parties who merely go through the
motions of putting on a case (in manner different than that they would likely use at trial) or fail to
bring a key witness. If neither the attorney nor the client appears at the arbitration for the
defendant, the defendant is automatically barred from rejecting the award under Rule 91(a).
PRACTICE POINTER
9 The arbitration panel has no authority to continue a hearing; only a judge may do so.
Attending the arbitration hearing with no witnesses and without a 90(c) packet or failing
to meaningfully participate will probably result in a partys being barred from rejecting
the award for lack of good-faith participation. If the creditors attorney knows that a
nonlocal witness will not be present at the arbitration, the creditor should attempt to
reschedule immediately. The creditor should also attempt to be excused from any
requests to produce witnesses who are essentially records witnesses and the records can
be introduced under Rule 90(c). Some counties now allow out-of-area witnesses to testify
by telephone.
D. [1.85] Mediation
Some counties have a voluntary option. Cases are assigned by the judge with agreement of
the parties.
E. [1.86] Attorneys Fees
Many contracts contain provisions for reasonable attorneys fees to the prevailing party. The
extent of the permissible recovery under these provisions will vary depending on the venue and
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the size of the claim. Many courts have unwritten caps on what constitutes a reasonable attorneys
fee. However, upon the filing of a motion with a supporting affidavit, a court may grant fees
above these norms. These local norms typically apply in smaller cases. In larger claims, courts are
more amenable to larger attorneys fees.
F. [1.87] Effect of Dismissals
Under Illinois law, a plaintiff has the greater of one year or the remaining limitation period to
refile a case after it has been dismissed without prejudice, either as the result of a voluntary
nonsuit or a dismissal for want of prosecution. 735 ILCS 5/13-217. If a case dismissed without
prejudice is not refiled within the period set forth by 13-217, this dismissal becomes a final
judgment at the expiration of the 13-217 period. See S.C. Vaughan Oil Co. v. Caldwell, Troutt &
Alexander, 181 Ill.2d 489, 693 N.E.2d 338, 230 Ill.Dec. 209 (1998). A motion to vacate a
dismissal for want of prosecution after 30 days should not be brought under 735 ILCS 5/2-1401
because it is not a motion to vacate a final order unless the period set forth by 735 ILCS 5/13-217
has run.
However, plaintiffs should avoid claim-splitting, i.e., nonsuiting certain counts to be refiled
later while pursuing other counts in an earlier action. Under Hudson v. City of Chicago, 228 Ill.2d
462, 889 N.E.2d 210, 321 Ill.Dec. 306 (2008), the earlier case may bar the nonsuited claims under
res judicata. In Hudson, the Illinois Supreme Court dismissed a complaint with prejudice pursuant
to res judicata based on an earlier lawsuit between the parties when the dismissed counts had been
nonsuited.

IX. APPENDIX FORMS
A. Complaints
1. [1.88] Goods, Wares, and Merchandise
IN THE CIRCUIT COURT OF

____________ COUNTY, ILLINOIS
)
____________________________, )
Plaintiff, )
) No.: __________
v. )
) Amount Claimed: __________
)
___________________________, ) Return Date: __________, 20__
Defendant. )
COMPLAINT
NOW COMES Plaintiff, __________, by its attorney[s], __________, and complaining of

Defendant, __________, alleges as follows:
1. Defendant ordered from Plaintiff goods, wares, and merchandise as indicated on

Exhibit __________, attached to and made a part of this Complaint.
2. Plaintiff delivered to Defendant the merchandise as indicated on Exhibit

__________, attached to and made a part of this Complaint.
3. To date, Defendant has failed to pay Plaintiff for this merchandise, and, as a result,
there is an unpaid balance due and owing to Plaintiff in the sum of $________.
4. Due demand has been made on Defendant to pay this amount, and Defendant has
failed so to do.
5. Pursuant to 815 ILCS 205/2, Plaintiff claims prejudgment interest at the statutory
rate of five percent, amounting to $________, making the total due Plaintiff from Defendant
$________.
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WHEREFORE, Plaintiff prays for judgment against Defendant for the sum of
$________ and costs of suit.
_____________________________________
Plaintiff
By: _________________________________
Attorney
[attorney information]
2. [1.89] Goods, Wares, and Merchandise with Agreement
[Caption]
COMPLAINT
NOW COMES Plaintiff, ____________, by and through its attorney[s], ____________,

and complaining of Defendant, ____________, states as follows:
1. Plaintiff is engaged in the business, inter alia, of merchandising, with a usual place
of business in ____________.
2. Pursuant to a ____________ executed by Defendant, a copy of which is attached to

and made a part of this Complaint as Exhibit ________, Plaintiff sold and delivered to
Defendant, on various dates more specifically set forth in Exhibit ________, attached to and
made a part of this Complaint, those goods, wares, and merchandise described in those
Exhibits.
3. There is a balance due from Defendant to Plaintiff for the goods, wares, and
merchandise specifically referred to in the preceding paragraph in the sum of $________,
and notwithstanding Defendants agreement to pay and due demand by Plaintiff, Defendant
has failed to pay this sum or any other sum.
4. There is further due and owing pursuant to the terms and conditions of the
agreement reasonable attorneys fees in the amount of $________ and interest in the
amount of $________.
rate of five percent, amounting to $________.

WHEREFORE, Plaintiff prays for judgment against Defendant, ____________, for the
sum of $________, together with interest and costs of this action.
_____________________________________
Plaintiff
By: __________________________________
Attorney
3. [1.90] Goods, Wares, and Merchandise with Guaranty
[Caption]
COUNT I

and complaining of Defendant, ____________, a corporation, states as follows:
2. Plaintiff sold and delivered to Defendant, on various dates more specifically set
forth in Exhibit ________, attached to and made a part of this Complaint, those goods,
wares, and merchandise described in the Exhibits.
3. There is a balance due from Defendant to Plaintiff for the goods, wares, and
merchandise specifically referred to in the preceding paragraph in the sum of $________,
and notwithstanding Defendants agreement to pay and due demand by Plaintiff, Defendant
has failed to pay this sum or any other sum.
rate of five percent, amounting to $________, making a total due and owing from Defendant
to Plaintiff in the sum of $________.
COUNT II
NOW COMES Plaintiff, ____________, by and through its attorneys, ____________,

and complaining of Defendant, ____________, an individual residing in the State of Illinois,
states as follows:
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1. That on or about _____________, 20__, the individual Defendant, at Defendants

special instance and request, in order to induce Plaintiff to extend credit to the corporate
Defendant, did execute a Guaranty to Plaintiff in which Defendant did unconditionally
guarantee the obligations of ____________ as set forth on the Guaranty, a copy of which is
attached to and made a part of this Complaint as Exhibit ________.
2. That pursuant to Count I of this Complaint, there is now due and owing to Plaintiff
from the corporate Defendant the amount of $________, as more specifically set forth in
Count I.
3. That although due demand was made on the individual Defendant to pay that
amount, the individual Defendant has failed to pay that amount or any other amount.
4. That there is further due and owing, pursuant to the terms and conditions of the
Guaranty, interest in the amount of $________. Pursuant to 815 ILCS 205/2, Plaintiff
claims prejudgment interest at the statutory rate of five percent, amounting to $________,
and there is further due and owing reasonable attorneys fees pursuant to the terms and
conditions of the Guaranty in the amount of $________, as reflected in Exhibit ________,
making a total due and owing from the individual Defendant to Plaintiff in the sum of
$________.
WHEREFORE, Plaintiff prays for judgment against Defendant, ____________, in the

sum of $________, together with interest and with costs of this action.
_____________________________________
Plaintiff
By: _________________________________
Attorney
4. [1.91] Account Stated
[Caption]
COMPLAINT
COUNT I
NOW COMES Plaintiff, ____________, by its attorney[s], ____________, and

complaining of Defendant, ____________, alleges as follows:
1. Defendant ordered and received from Plaintiff goods, wares, and merchandise, or
services, for which a balance is due and owing to Plaintiff in the sum of $________, as
indicated in Exhibit ________, attached to and made a part of this Complaint.

2. By reason of an account stated on ____________, 20__, the Plaintiff claims interest

at the statutory rate of five percent amounting to $________, making the amount due
Plaintiff from Defendant the sum of $________.
3. Plaintiff further alleges that due demand was made on Defendant to pay this
amount, and the Defendant has failed so to do.
COUNT II
NOW COMES Plaintiff, ____________, by its attorneys, ____________, and

complaining of Defendant, ____________, states as follows:
1. On or about the dates and in the amount set forth in the Exhibits, Defendant
executed and delivered, for good and valuable consideration, its checks to Plaintiff:
Date Amount Exhibit No.

[list] [list] [list]
2. These checks when presented were dishonored and returned for the following
reasons, in the alternative:
[(a) No account open; or
(b) Insufficient funds in the account; or
(c) Insufficient credit with the drawee.]
3. Plaintiff claims attorneys fees in the sum of $________ pursuant to 810 ILCS
5/3-806 in accord with the courts fee schedule as set forth in Exhibit ________.
4. Plaintiff claims interest at the rate of five percent per annum pursuant to 815 ILCS
205/2 in the sum of $________.
WHEREFORE, Plaintiff prays for judgment against Defendant, ____________, in the

sum of $________ and costs of this action.
_____________________________________
Plaintiff
By: _________________________________
Attorney
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5. [1.92] Insurance Premium/Audit
[Caption]
COMPLAINT
COUNT I

1. Insurance premiums became due and owing on Policy No. ________, issued by
Plaintiff to Defendant, at Defendants special instance and request, in the sum of $________,
as indicated in Exhibit _________, attached to and made a part of this Complaint.
rate of five percent amounting to $________, making the amount due Plaintiff from
Defendant the total sum of $________.
amount, and Defendant failed so to do.
$________, plus costs.
_____________________________________
Plaintiff
By: _________________________________
Attorney
6. [1.93] Credit Card
[Caption]
COMPLAINT

states as follows:
1. Plaintiff is engaged in the business, inter alia, of financing, with a usual place of
business in ____________.

2. On or about ____________, 20__, pursuant to Defendants signed application, a

copy of which is attached to and made a part of this Complaint as Exhibit ________,
Plaintiff opened a revolving charge account for Defendant, known as Account No.
________, pursuant to which Defendant received a ____________ card and could charge
goods and services to that account.
3. There is a balance due on that account in the amount of $________, which includes
interest pursuant to the agreement, as more fully set forth on the statement attached to and
made a part of this Complaint as Exhibit ________.
4. Pursuant to the agreement, Defendant is also liable for reasonable attorneys fees in
the sum of $________ and interest in the amount of $________, making a total amount due
and owing from Defendant to Plaintiff of $________.
5. Due demand has been made on Defendant for the payment of this sum, and
Defendant has refused and continues to refuse so to pay.
$________, together with interest to the date of judgment and costs of this action.
_____________________________________
Plaintiff
By: _________________________________
Attorney
7. [1.94] Promissory Note
[Caption]
COMPLAINT

1. For good and valuable consideration, Plaintiff is the holder of a Promissory Note
executed by Defendant on or about ____________, 20__, and at that time delivered by
Defendant to Plaintiff. A true and correct copy of the note is attached and made a part of
this Complaint as Plaintiffs Exhibit ________.
2. This note is in default and has been in default since ____________, 20__. There is a
principal balance due in the amount of $________, and, pursuant to the provisions of
Plaintiffs Exhibit ________, there is further due Plaintiff from Defendant interest at the
rate of ________ percent per month since ____________, 20__ or a total of $________.
3. Plaintiff has made due demand on Defendant to pay the balance due it, but
Defendant has failed to do so without just cause.
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4. Plaintiff has performed all the conditions precedent required of it.
5. Plaintiffs Exhibit ________ provides for the payment of reasonable attorneys fees.
Reasonable attorneys fees in this matter are $________.
WHEREFORE, Plaintiff, ____________, prays for judgment against Defendant,

____________, in the amount of $_________, and costs of suit.
_____________________________________
Plaintiff
By: _________________________________
Attorney
8. [1.95] Installment Note
[Caption]
COMPLAINT

2. On or about ____________, 20__, at the specific instance and request of Defendant,

Plaintiff loaned to Defendant the sum of $________, for which Defendant executed an
Installment Note and Security Agreement in the sum of $________, including precomputed
interest. A copy of this Agreement is attached to and made a part of this Complaint as
Exhibit ________.
3. Pursuant to the terms and conditions of the note and agreement, Defendant is in
default, and there is now due and owing the amount of $________, as more fully set forth in
Exhibit ________ attached to and made a part of this Complaint.
4. Pursuant to the note and agreement, Defendant is also liable for reasonable
attorneys fees in the sum of $________, as computed in Exhibit ________, attached to and
made a part of this complaint, and interest in the amount of $________, making a total
amount due and owing from Defendant to Plaintiff of $________.
5. Due demand has been made on Defendant for the payment of this sum, and the

sum of $________, together with interest and with costs of this action.
_____________________________________
Plaintiff
By: _________________________________
Attorney
9. [1.96] Note with Assignment/Attorneys Fees
[Caption]
COMPLAINT

2. On or about ____________, 20__, Defendant, at Defendants own instance and

request, did execute a note to ____________ for valuable consideration. A copy of this note
is attached to and made a part of this Complaint as Exhibit ________.
3. On or about ____________, 20__, this note was assigned for good and valuable
consideration from ____________ to ____________, Plaintiff, as shown on the assignment,
4. Pursuant to the terms and conditions of this note, Defendant is in default, and there
is now due and owing the amount of $________ as more fully set forth in Exhibit ________,
attached to and made a part of this Complaint.
5. Pursuant to Exhibit ________, Defendant is also liable for reasonable attorneys fees
in the sum of $________, plus interest in the amount of $________, making a total amount
due and owing from Defendant to Plaintiff of $________.
6. Due demand has been made on Defendant for the payment of this sum, and
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____________, in the amount of $________ and costs of suit.
_____________________________________
Plaintiff
By: _________________________________
Attorney
10. [1.97] Freight
[Caption]
COMPLAINT

1. Plaintiff is a public carrier in interstate commerce.
2. Defendant is a corporation.
3. Defendant consigned for shipment with Plaintiff certain goods, wares, and
merchandise, for which there is presently due an unpaid balance for shipping charges in the
amount of $________, as set forth on true and correct copies of freight bills attached to and
made a part of this Complaint as Plaintiffs Exhibits ________.
4. Plaintiff has fully performed all the conditions precedent for which it was obligated.
5. By reason of an account stated on ____________, 20__, Plaintiff claims interest at

the statutory rate of five percent, amounting to $________, making the amount due Plaintiff
from Defendant the total sum of $________.
amount, and Defendant has neglected and failed so to do.

____________, for the sum of $________ and costs of suit.
_____________________________________
Plaintiff
By: _________________________________
Attorney

11. [1.98] Services
[Caption]
COMPLAINT

1. Defendant ordered and received from Plaintiff ____________ services, for which a
balance is due and owing to Plaintiff in the sum of $________, as indicated in Exhibit
________, attached to and made a part of this Complaint.
rate of five percent, amounting to $________, making the amount due Plaintiff from
Defendant the total sum of $________.
amount, and Defendant has failed so to do.
sum of $________ and costs of suit.
_____________________________________
Plaintiff
By: _________________________________
Attorney
12. [1.99] Professional Services with Agreement/Attorneys Fees/NSF Count
[Caption]
COMPLAINT
COUNT I

1. Plaintiff is engaged in the business, inter alia, of providing those services generally
referred to as ____________ services, with a usual place of business in ____________.
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2. Plaintiff rendered services to Defendant pursuant to [an agreement, a contract, etc.]

entered into between the parties on or about ____________, 20__, a copy of which is
3. Plaintiff has performed all of its obligations by the rendering of those services set
forth in Exhibit ________, and there is due and owing from Defendant the sum of
$________, as indicated in Exhibit ________, attached to and made a part of this
Complaint, which sum remains due and owing despite repeated requests and demands for
payment.
4. Pursuant to Exhibit ________, Defendant is also liable for attorneys fees in the
amount of $________, and for interest in the sum of $________.
5. Pursuant to 815 ILCS 205/2, the Plaintiff claims prejudgment interest at the
statutory rate of five percent, amounting to $________, making the amount due Plaintiff
from Defendant the total sum of $________.
WHEREFORE, Plaintiff prays for judgment against Defendant in the amount of

$________, plus costs of suit.
COUNT II

1. Plaintiff is engaged in the business, inter alia, of ____________, with a usual place of
2. Plaintiffs claim is for the money due for ____________ services to Defendant, at the
specific instance and request of Defendant, as set forth in Exhibit ________, attached to and
made a part of this Complaint, in the amount of $________.
3. Defendant issued its check to Plaintiff for partial payment of this claim in the
amount of $________, drawn on ____________. A copy of this check is attached to and
made a part of this Complaint as Exhibit ________. The check was returned by the [bank]
marked NSF (Non-Sufficient Funds).
4. Pursuant to 3-806 of the Uniform Commercial Code, Defendant is also liable for
reasonable attorneys fees in the amount of $________ and for interest at the legal rate of
________ percent per annum in the amount of $________.
5. Due demand was made on Defendant to pay this sum, and Defendant has failed and
refused so to do.

$________, together with interest and costs of this action.
_____________________________________
Plaintiff
By: _________________________________
Attorney
13. [1.100] Lease/Rental Only
[Caption]
COMPLAINT

1. Plaintiff is engaged in the business, inter alia, of leasing ____________, with a usual
place of business in ____________.
2. On or about ____________, 20__, Plaintiff and Defendant entered into a Lease

Agreement, whereby Defendant leased certain ____________ from Plaintiff. A copy of this
Lease Agreement is attached to and made a part of this Complaint as Exhibit ________.
3. There is a balance due and owing to Plaintiff from Defendant for rental charges in
the amount of $________, as more fully set forth in Exhibit ________, attached to and made
a part of this Complaint.
4. There is further due and owing by agreement between the parties interest in the
amount of $________. Pursuant to 815 ILCS 205/2, Plaintiff claims prejudgment interest at
the statutory rate of five percent, amounting to $________, and there is further due and
owing reasonable attorneys fees, in the amount of $________ as reflected in Exhibit
________, making a total due and owing from Defendant to Plaintiff in the sum of
$________.
failed so to do.
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_____________________________________
Plaintiff
By: _________________________________
Attorney
14. [1.101] Equipment Rental
[Caption]
COMPLAINT

1. Plaintiff is engaged in the business, inter alia, of leasing ____________, with a usual
place of business in ____________.
2. There is a balance due and owing to Plaintiff from Defendant for rental charges,
etc., in the amount of $________, as more fully set forth in Exhibit ________, attached to
and made a part of this Complaint.
failed so to do.
4. There is further due and owing by agreement between the parties interest in the
amount of $________. Pursuant to 815 ILCS 205/2, Plaintiff claims prejudgment interest at
the statutory rate of five percent, amounting to $________, and there is further due and
owing reasonable attorneys fees, in the amount of $________ as reflected in Exhibit
________, making a total due and owing from Defendant to Plaintiff in the sum of
$________.
_____________________________________
Plaintiff
By: _________________________________
Attorney

15. [1.102] Vehicle Lease with Damage
[Caption]
COMPLAINT

1. Plaintiff is engaged in the business, inter alia, of leasing and renting out motor
vehicles, with a usual place of business in ____________.
2. On or about ____________, 20__, Plaintiff and Defendant entered into a lease

agreement, whereby Defendant leased a certain ____________ from Plaintiff. A copy of the
lease agreement is attached to and made a part of this Complaint as Exhibit ________.
3. There is a balance due and owing to Plaintiff from Defendant for rental charges in
the amount of $________, as more fully set forth in Exhibit ________, attached to and made
a part of this Complaint.
4. While this vehicle was in the possession of Defendant, it was damaged in the amount
of $________ as set forth in Exhibit ________, attached to and made a part of this
Complaint.
5. There is further due and owing pursuant to Exhibit ________ reasonable attorneys
fees in the amount of $________, making a total amount due and owing from Defendant to
Plaintiff of $________.
failed so to do.
_____________________________________
Plaintiff
By: _________________________________
Attorney
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16. [1.103] Vehicle Lease/Property Damage
[Caption]
COMPLAINT

1. At all times mentioned herein, the Plaintiff was and still is a resident of or doing
business in the State of Illinois.
2. At all times mentioned herein, Defendant was and still is a resident of or doing
business in the State of Illinois.
3. On or about ____________, 20__, Plaintiff and Defendant executed a written

contract, which is attached hereto and incorporated herein as Exhibit ________.
4. Pursuant to the contract, Defendant was to pay all lease costs and for damage to the
leased vehicle.
5. Defendant breached these obligations by failing to pay as more fully set forth on
Plaintiffs Exhibit ________, attached hereto and incorporated by this reference.
6. Plaintiff has performed all conditions precedent pursuant to the above contract and
is therefore entitled to recover thereon.
7. As a result of Defendants breach, Plaintiff is entitled to damages after all just

credits in the amount of $________ plus attorneys fees.
rate of five percent, amounting to $________. Therefore, there is a total due and owing in
the amount of $________ plus costs and attorneys fees.
WHEREFORE, Plaintiff, ____________, a Corporation, prays that this Court enter

judgment against Defendant, ____________, in the amount of $________ plus costs, fees,
and interest.
_____________________________________
Plaintiff
By: _________________________________
Attorney

17. [1.104] Auto Deficiency with Sale
[Caption]
COMPLAINT

states as follows:
2. Defendant, on or about ____________, 20__, entered into a written contract with

____________, whereby Defendant purchased a motor vehicle from ____________, paying
$________ as a down payment and agreeing to pay the time finance balance of $________ in
consecutive monthly installments of $________ each, the first payment being due on
____________, 20___. A copy of this contract is attached to and made a part of this
Complaint as Exhibit ________.
3. For valuable consideration paid to ____________, the contract was assigned to

Plaintiff on or about the date stated above, and Plaintiff alleges that it then became the bona
fide owner of the contract.
4. Defendant thereafter paid the total of $________ and failed and refused to pay the
balance, so that the automobile was returned to the possession of Plaintiff under the terms
of the contract.
5. Thereafter, the automobile was sold, for which Defendant received credit, and in
accordance with the provisions of the contract, the balance now due is $________, as more
fully set forth in Exhibit ________, attached to and made a part of this Complaint.
6. Plaintiff has complied with all of the pertinent provisions of the Illinois Motor
Vehicle Retail Installment Sales Act, as amended.
7. There is further due and owing from Defendant to Plaintiff, pursuant to the terms
and conditions of the contract, reasonable attorneys fees in the amount of $________ and
interest in the amount of $________, as calculated in Exhibit ________ attached to this
Complaint, making a total due and owing in the sum of $________.
failed so to do.
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_____________________________________
Plaintiff
By: _________________________________
Attorney
18. [1.105] Retail Installment Contract
[Caption]
COMPLAINT

2. Defendant, on or about ____________, 20__, entered into a written contract with

Plaintiff, whereby Defendant purchased certain goods, wares, and merchandise, paying
$________ as a down payment and agreeing to pay the time finance balance of $________ in
consecutive monthly installments of $________ each, the first payment being due on
____________, 20__. A copy of this contract is attached to and made a part of this
Complaint as Exhibit ________.
3. Defendant thereafter paid the total of $________ and failed and refused to pay the
balance of $________, as more fully set forth in Exhibit ________, so that Defendant is,
therefore, in default pursuant to the terms of the contract.
4. There is further due and owing from Defendant to Plaintiff, pursuant to the terms
and conditions of Exhibit ________, interest in the amount of $________. Pursuant to 815
ILCS 205/2, Plaintiff claims prejudgment interest at the statutory rate of five percent,
amounting to $________, and there is further due and owing reasonable attorneys fees
pursuant to the terms and conditions of Exhibit ________ in the amount of $________,
making a total due and owing from Defendant to Plaintiff of the sum of $________.
failed so to do.

_____________________________________
Plaintiff
By: _________________________________
Attorney
19. [1.106] Property Damage
[Caption]
COMPLAINT

1. That on or about ____________, 20__, Plaintiff was the owner of a certain

automobile that was being driven in a ____________ direction on ____________, a public
highway located in ____________, State of Illinois, and was at all times in the exercise of all
due care and caution for [his] [her] own safety and for the safety of others.
2. That Defendant at that time and place, individually or by a duly authorized agent in
his behalf, owned, operated, and controlled a certain motor vehicle in a ____________
direction on ____________, at or near ____________, in the City and State identified above.
3. That Defendant, individually or by a duly authorized agent in his behalf, was guilty
of one or more of the following acts or omissions:
[(a) Operated (his) (her) automobile in a negligent manner;
(b) Negligently operated (his) (her) automobile at an excessive rate of speed in violation of
the statutes of the State of Illinois;
(c) Negligently disregarded traffic signals;
(d) Negligently failed to give any warning signal to Plaintiff by blowing (his) (her)
automobiles horn;
(e) Failed to stop (his) (her) automobile when danger to Plaintiff was imminent.]
4. That as a direct and proximate result of one or more of these acts, Defendants
vehicle collided with and greatly damaged the automobile belonging to Plaintiff.
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5. That by reason of this occurrence, Plaintiffs automobile was greatly depreciated in

value and Plaintiff was obliged to repair or replace it and was deprived of its use.
WHEREFORE, Plaintiff prays for judgment in the sum of $________, plus costs against
Defendant, ________.
_____________________________________
Plaintiff
By: _________________________________
Attorney
20. [1.107] Factor/Assignment
[Caption]
COMPLAINT

1. Plaintiff is in the business of factoring accounts receivable.
2. Plaintiffs assignor, ____________, sold and delivered merchandise to Defendant,

____________, in the amount of $________, as more fully set out in Exhibit ________,
attached to and made a part of this Complaint.
3. Plaintiff is the bona fide assignee for value of the account as set out in Exhibit
________.
4. Due demand has been made on Defendant to pay this account by Plaintiff, but
Defendant refuses to make payment.
5. By reason of an account stated on ____________, 20__, Plaintiff is entitled to

statutory interest at the rate of five percent, amounting to $________, making a total due
and owing from Defendant to Plaintiff of $________.
_____________________________________
Plaintiff
By: _________________________________
Attorney

B. [1.108] Payment Stipulation
IN THE CIRCUIT COURT OF ____________ COUNTY
_____________________, )
Plaintiff, )
v. ) No.
)
_____________________, )
Defendant. )
STIPULATION PAYMENT PLAN
IT IS HEREBY STIPULATED and agreed by and between the parties to the above-
captioned cause of action, by and through their respective attorneys, that this cause of
action be resolved as follows:
1. That Defendant, ____________, agrees to pay to Plaintiff, ____________, the sum of

$________ claimed by Plaintiff.
2. That Defendant, ____________, shall pay the $________ in monthly installments of

$________, commencing with the execution and filing of this Stipulation in open court, and
upon the ________ day of each succeeding month until full payment of the $________ is
made.
3. That upon full payment of the $________ this cause of action shall be dismissed
against Defendant.
4. That all monthly installments to be paid by Defendant shall be remitted to the

attorney[s] for Plaintiff, ____________.
5. That in the event Defendant, ____________, shall default in the payment of any
monthly installment due pursuant to this Stipulation, then upon the proper service of a
Notice of Motion, pursuant to the Rules of the Circuit Court of ____________ County, on
the attorney[s] for Defendant, Plaintiff may pray for and obtain a judgment against
Defendant, ____________, for the amount agreed to be paid, less credit for all monies
previously paid pursuant to this Stipulation.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals by and
through their respective attorneys this ________ day of ________, 20__.
__________________________________ _____________________________________
Plaintiff Defendant
By: _______________________________ By: __________________________________

Attorney[s] for Plaintiff Attorney[s] for Defendant
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C. [1.109] Affidavit of Claim
AFFIDAVIT OF CLAIM
STATE OF ILLINOIS )
) ss.
COUNTY OF ___________ )
Before me, the undersigned notary public, personally appeared ____________, who
being duly sworn upon oath deposes and states:
[1. That he is the President of ____________, a corporation organized and doing business
under the laws of the State of Illinois.
2. That the attached statement of account against ____________, doing business at

____________, is taken from original books of entry and is just and true within the knowledge of
the affiant.
3. That all just and lawful offsets, payments, and credits have been allowed, and that the
sum of $________ is due, owing, and unpaid.]
____________________________________
By: _________________________________
Subscribed and sworn to before me this ____________ day of ____________, 20__.
_____________________________________
Notary Public
D. [1.110] Written Interrogatories
[Caption]
WRITTEN INTERROGATORIES
To: [name and address of attorney(s) for the defendant]
NOW COMES Plaintiff herein, ____________, by and through its attorney[s],

____________, and pursuant to Rule 213 of the Supreme Court of the State of Illinois and
by order of Court, requests Defendant herein, ____________, to answer, under oath, the
following interrogatories:
1. State the name and residence address of the person answering these Interrogatories.
2. What position do you now hold with Defendant, and what were your duties at the
time of the transaction[s] complained of in Plaintiffs complaint?

3. Do you have knowledge of the business transactions of Defendant in its dealings

with Plaintiff?
4. If the answer to Interrogatory No. 3 is No, who does have knowledge of the facts
pertaining to the business transactions between Defendant and Plaintiff?
5. If your answer to Interrogatory No. 3 is Yes, state whether there are persons
other than you who have knowledge of the transactions referred to.
6. With respect to any person or persons named in the answer to Interrogatory No. 5,
state the following for each person:
(a) The name of that person.
(b) The residence and business address of that person.
(c) The position that person now holds and, if different, held at the time of the
complained-of transaction[s] with Defendant.
(d) The duties that person had with Defendant at the time of the complained-of
transaction[s] and, if different, the current duties.
7. Do you have knowledge of the account as reflected in the exhibit[s] attached hereto?
8. If the answer to Interrogatory No. 7 is Yes, then state:
(a) Whether the account as reflected in the exhibit[s] attached hereto is correct.
(b) If the account is incorrect, the amount that your books and records reflect is
owed, exclusive of any claim[s] of setoff or counterclaim.
9. If the answer to Interrogatory No. 7 is No, then set forth the name of the person
or persons who have knowledge.
10. Did Defendant receive all of these items set forth in the exhibit[s] attached hereto
and previously referred to in Interrogatory No. 7?
11. If the answer to Interrogatory No. 10 is No, then state which item[s] [was] [were]
not received.
12. If the answer to Interrogatory No. 10 is No, then state whether Plaintiff was
notified.
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13. If the answer to Interrogatory No. 12 is Yes, then state the following:
(a) The date of notification.
(b) The name of the person who gave notification.
(c) The manner of notification. (If written, please attach a copy.)
14. If the answer to Interrogatory No. 10 is Yes, have any payments been made?
15. If the answer to Interrogatory No. 14 is Yes, attach a copy of the front and back
of the check[s] or other instrument[s] evidencing payments. If any cash payment is claimed,
attach a copy of the receipt.
16. Were any of the items listed in the exhibit[s] attached hereto and previously
referred to in Interrogatory No. 7 received in damaged condition?
17. If the answer to Interrogatory No. 16 is Yes, describe with particularity the
damage to those items.
18. If the answer to Interrogatory No. 16 is Yes, state the time and date the damage
was discovered.
19. If the answer to Interrogatory No. 16 is Yes, state whether Plaintiff was notified.
20. If the answer to Interrogatory No. 19 is Yes, state the manner of notification and,
if in writing, attach a copy.
21. Does Defendant claim any additional credits?
22. If the answer to Interrogatory No. 21 is Yes, state the nature and amount of the
credits claimed.
By: ________________________________
Attorney[s] for Plaintiff
E. [1.111] Notice of Deposition
[Caption]
NOTICE OF DEPOSITION
TO: [name and address of attorney(s) for defendant]
YOU ARE HEREBY NOTIFIED that pursuant to the provisions of the Code of Civil
Procedure and Rule 201 of the Supreme Court of the State of Illinois, the deposition of

____________ will be taken for the purpose of discovery before a Notary Public in and for
the County of ____________ and State of Illinois at the hour of ________ __.m. on the
____________ day of ____________, 20__, at ____________ Street, ____________, Illinois,
upon interrogatories propounded to the witness orally; at which time and place you are
requested to have present said ____________ and to produce all books, records, documents,
and other pertinent items relative to this cause of action.
_____________________________________
STATE OF ILLINOIS )
) ss.
COUNTY OF ___________ )
____________, being first duly sworn on oath, deposes and says that [he] [she] served
the above and foregoing Notice by mailing a copy of it in a sealed, addressed envelope to the
person to whom it is directed on the ____________ day of ____________, 20__.
_____________________________________
Subscribed and sworn to before me this ____________ day of ____________, 20__.
_______________________________
Notary Public
F. [1.112] Notice To Produce
[Caption]
NOTICE TO PRODUCE
TO: [name and address of attorney(s) for the defendant]
You are hereby notified to produce, pursuant to Illinois Supreme Court Rule 214, all of
the items described below, at the offices of [name and address of the attorney for the plaintiff],
for inspection and copying on a date and at a time not later than 28 days from the date
hereof:
[any and all correspondence, business records, invoices, memoranda, reports, agreements,
statements of account, canceled checks, receipts and payment records, or any other
papers whatsoever that describe, refer, or relate in any way to ____________ invoices
Nos. ________.]
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Plaintiff further requests that upon compliance with the terms of this Notice To
Produce, Defendant furnish an affidavit stating whether the production is complete in
accordance with the request.
_____________________________________
G. [1.113] Request for Admission of Facts and Genuineness of Documents
[Caption]
REQUEST FOR ADMISSION OF FACTS AND

GENUINENESS OF DOCUMENTS
TO: [name and address of attorney(s) for the defendant]
Now comes Plaintiff herein, ____________, by and through its attorney[s],

____________, pursuant to Illinois Supreme Court Rule 216, and requests the Defendant
herein, ____________, to admit under oath, within 28 days, the truth of the following facts
and the genuineness of the following documents, in accordance with the following
instructions:
If, in response to any of the following statements of fact, it is your belief that the
statement is true in part or is true as to some items but not true as to all items or parts, then
answer separately as to each part or item.
[1. That the contract dated ____________, 20__, a copy of which is attached hereto and
marked as Exhibit A, is a true and correct copy of a contract for the purchase and sale of
____________, entered into between Plaintiff and Defendant.
2. That Exhibit A contains the true and correct copy of the signature of ____________,
signed on or about ____________, 20__.
3. That (name of signer) is a duly authorized agent of ____________.
4. That the statement of account attached hereto as Exhibit B accurately reflects all credits
for payments made by Defendant to Plaintiff pursuant to Exhibit A.
5. That Exhibit B accurately reflects the outstanding balance due and owing to Plaintiff
pursuant to Exhibit A.]
_____________________________________

H. [1.114] Combined Notice To Produce and Interrogatories
[Caption]
PLAINTIFFS COMBINED INTERROGATORIES

AND REQUEST FOR PRODUCTION OF DOCUMENTS
NOW COMES Plaintiff, ____________, by its attorneys, ____________ and requests

that Defendant, ____________, answer, under oath and in accordance with the Supreme
Court Rules 213 and 214, the following interrogatories and produce the documents
hereinafter requested.
INSTRUCTIONS
1. Defendant shall produce the requested documents as they are kept in the usual
course of business or organized and labeled to correspond with the paragraphs of the
request. Plaintiff requests that the documents requested be sent to its attorneys office at
_________________, within 28 days from the receipt of this Request.
2. This Request is intended to cover all documents in possession of Defendant or

subject to its control and/or custody, at any office maintained by Defendant.
3. These Interrogatories and Request for Production of Documents are continuing in

nature. To the extent that Defendant procures additional information in response to the
Interrogatories and Request for Production, said Defendant shall seasonably supplement or
amend any prior answer or response in accordance with S.Ct. Rule 213(h).
4. In accordance with S.Ct. Rule 213(d), all persons answering these interrogatories
shall furnish a sworn affidavit stating that the answers to the interrogatories are true,
correct, and complete to the best of [his] [her] knowledge and belief.
5. In accordance with S.Ct. Rule 214, Defendant shall furnish a sworn affidavit stating
whether the production is complete in accordance with the requests.
DEFINITIONS
The following definitions, except where specifically stated to the contrary, will apply to
the Interrogatories and Request for Production of Documents below:
A. As used herein, the term documents shall refer to any written, printed, recorded,
or graphic matter that is in your actual or constructive possession or control, regardless of
the medium on which it is produced, reproduced, or stored, including but not limited to
correspondence, records, reports, memoranda, notes, letters, telegrams, telexes, messages
(including but not limited to reports of telephone conversations and conferences), studies,
analyses, books, magazines, newspapers, publications, booklets, pamphlets, circulars,
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bulletins, instructions, minutes, or other communications (including but not limited to

interoffice and intra-office communications), questionnaires, surveys, contracts,
memoranda of agreement, assignments, books of account, orders, working papers, records
of summaries of negotiations, voice recordings or summaries of personal interviews or
conversations, appointment calendars, diaries, schedules, printouts, drawings,
specifications, patents, patent applications, certificates of registration, applications for
registration, graphs, charts, studies, planning materials, statistical statements and
compilations, forecasts, work papers, invoices, statements, bills, checks, bank books, bank
statements, forms, vouchers, notebooks, data sheets, microfilm, microfiche, photographic
negatives, pictures, photographs, microscopically obtained photographs, test results, belts,
tapes, magnetic tapes, paper tapes, discs, data cards, films, data processing files and other
computer readable records or programs, and all other data compilations from which
information can be obtained, and translated, if necessary, and all originals, drafts, and
copies thereof. Any such document bearing on any sheet or side thereof any marks, such as
(but not limited to) initials, stamped indicia, comment, or notations, of any character and
not a part of the original text or photographic reproduction thereof, is to be considered and
identified as a separate document.
If any document is not produced by reason of a claim of privilege, such document shall
be identified as follows:
1. date of document;
2. author and all recipients of document;
3. subject matter of document; and
4. basis of claim of privilege.
B. Identify or identification, when used in reference to an individual person,

means to state, as to each individual, his or her full name, and present or last known
1. home address;
2. place of employment or business affiliation;
3. business address; and
4. job title or business capacity.
C. Describe, identify, or specify, when used in reference to a document or

written record, means to state the following as to each document or written record:
1. the title thereof;
2. the nature and type thereof;

3. the date prepared;
4. the present location thereof; and
5. the name, business address, and position of the person or persons, having present
custody or control thereof;
D. The word party shall, if an individual, also include members of [his] [her]
immediate family, and shall, if a corporation, include its officers, directors, managing
agents, and employees.
INTERROGATORIES PURSUANT TO SUPREME COURT RULES 213 AND 222(d)
1. Identify the name, address, and occupation of the person(s) answering these
Interrogatories.
2. Identify the name, address, occupation, and duties of each person in the employ of
Defendant who has knowledge of the allegations set forth in the pleadings.
3. Identify the names, addresses, and telephone numbers of all persons whom
Defendant believes may have knowledge or information relevant to the events, transactions,
or occurrences that gave rise to the action, and the nature of the knowledge or information
each such individual is believed to possess.
4. Identify the names, addresses, and telephone numbers of all persons who have given
statements, whether written or recorded, signed or unsigned, and the custodian of the
copies of those statements.
5. State the factual basis of Defendants defense, or in the event of multiple defenses,
state the factual basis for each defense, and list each document relied on in support of the
defense.
6. State the legal theory on which each defense is based, including, where necessary for
a reasonable understanding of the defense, citations of pertinent legal or case authorities.
7. Pursuant to Supreme Court Rule 213(c)(1), identify the name, address, telephone
number, and occupation of any lay witnesses whom Defendant expects to call at arbitration
and/or trial and set forth the subject matter about which each witness will be called to
testify, including the facts known by and the opinions held by the witness.
8. Pursuant to Supreme Court Rule 213(c)(2), identify the name, address, telephone
number, and occupation of each person whom Defendant expects to call as an independent
expert witness at trial, and set forth the subject matter on which the independent expert
witness is expected to testify, including the conclusions and opinions of the independent
expert witness and the basis therefor, the qualifications of the independent expert witness,
and copies of any reports prepared by the independent expert witness.
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9. Pursuant to Supreme Court Rule 213(f)(3), identify the name, address, telephone
number, and occupation of each person whom Defendant expects to call as a controlled
expert witness at trial, and set forth the subject matter on which the controlled expert
witness is expected to testify, including the conclusions and opinions of the controlled expert
witness and the basis therefor, the qualifications of the controlled expert witness including a
curriculum vitae and/or resum and copies of any reports prepared by the controlled expert
witness.
10. State the existence, location, custodian, and general description of any tangible
evidence or documents that Defendant plans to use at trial.
11. Set forth a list of the documents or, in the case of voluminous documentary
information, a list of the categories of documents known by Defendant to exist whether or
not in Defendants possession, custody, or control and that Defendant believes may be
relevant to the subject matter of the action, and those that appear reasonably calculated to
lead to the discovery of admissible evidence, and the date(s) on which those documents will
be made, or have been made, available for inspection and copying. Unless good cause is
stated for not doing so, a copy of each document listed shall be served with the response to
these Interrogatories and Request for Production of Documents. If productions are not
made, the name and address of the custodian of the document shall be indicated. A party
who produces documents for inspection shall produce them as they are kept in the usual
course of business.
12. Set forth specifically all the terms and conditions of the contract(s) entered into
between the parties involving the services Plaintiff was to provide to Defendant, which are
the subject matter of this lawsuit, attaching all purchase orders, contracts, memoranda,
invoices, and other documentation that would evidence the said terms and conditions.
13. What instructions were furnished by Defendant to Plaintiff concerning the services
Plaintiff was to provide to Defendant? To the extent said instructions were in writing, list
them or attach copies of the writing to your Answer to these Interrogatories.
14. State the total amount of monies paid by Defendant to Plaintiff as and for the
services provided by Plaintiff; if less than the agreed contract(s) amount(s), set forth the
reason therefore.
15. In connection with any defense:
a. Describe each term and condition of the contract between the parties which Plaintiff
allegedly failed to perform.
b. State all facts relied on by Defendant in alleging Plaintiff failed to perform certain
terms and conditions of the contract between the parties.
c. List all writings relied on by Defendant in alleging Plaintiff failed to perform certain
terms and conditions of the contract and attach copies thereof to your answers to these
Interrogatories.

d. With regard to any term or condition of the contract that Plaintiff allegedly failed to
perform, set forth whether notice thereof was given to Plaintiff. If so, indicate whether same
was written or oral, and if written, attach a copy of each such notice thereof to your answers
to these Interrogatories.
e. With regard to any notification given to Plaintiff that was oral, state the date thereof
and the person(s) to whom said notification was given and by whom, and what was said by
each person.
16. State what sum, if any, Defendant contends is due and owing from Defendant to
Plaintiff, as of the present date. If the amount Defendant contends to be due is less than the
principal amount claimed due in Plaintiffs Complaint, set forth specifically Defendants
basis for such contention, including the mathematical computation and the credits claimed
(list the basis for each such credit, whether by payment or otherwise).
REQUEST FOR PRODUCTION PURSUANT TO SUPREME COURT RULE 214
1. Produce all purchase orders, contracts, acknowledgments, memoranda, written

agreements, and other documentation that would evidence the terms and conditions of the
contract(s) between Plaintiff and Defendant, on which this claim is based.
2. Produce all documents requested by Plaintiff or referred to by Defendant in the

Answers to Plaintiffs Interrogatories
3. Produce any and all notes and correspondence between the parties.
4. Produce any and all notes and memoranda of telephone contacts between the
parties.
5. Produce any and all notes and memoranda of in-person meetings between the
parties.
6. Produce any and all written communications by or with Defendant and any
individual not involved in this lawsuit concerning the subject matter of the lawsuit.
7. Produce any and all notes of telephone conversations by or with Defendant and any
individuals not involved in this lawsuit concerning the subject matter of the lawsuit.
8. Produce any documents in Defendants possession that in any way refer to the
subject matter of the Complaint.
9. Produce any and all documents, letters, writings, and paper that you expect to
utilize as a basis for any defense in this action.
10. Produce copies of the front and reverse sides of checks issued to Plaintiff for
payment of invoices Plaintiff is seeking recovery for in its Complaint.
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This chapter

The contribution of Harold Stotland to prior editions of this chapter is gratefully

COPYRIGHT 2009 BY IICLE. 11

I. [1.1] Scope of Chapter

A. Definitions and Initial Considerations

III. Pre-Suit Procedures

A. [1.16] Receipt of Claim

IV. Determining Whether To File Suit

D. [1.29] Analysis of Debtor

VI. [1.49] Service of Process

VII. [1.50] Appearance and Answer

A. [1.51] Appearance and Jury Demand

ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION 13

VIII. Discovery and Pretrial

IX. Appendix Forms

3. [1.90] Goods, Wares, and Merchandise with Guaranty

ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION 15

I. [1.1] SCOPE OF CHAPTER

A. Definitions and Initial Considerations

Forwarding claims to a local collection attorney is expressly authorized by the creditor

Typically, if the forwarder is a collection agency or an out-of-state collection firm, the

4. [1.5] Debt Buyer

ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION 17

6. [1.7] Forwarding Contract

D. [1.10] Ethical Issues in Collections

E. [1.11] Law Lists

ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION 19

The defense of a counterclaim is normally on an hourly basis. If a counterclaim is in fact

H. [1.14] Communication and Reporting

I. [1.15] Disposition of Money Advanced and Collected

III. PRE-SUIT PROCEDURES

A. [1.16] Receipt of Claim

1. [1.17] Conflict Check

ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION 1 11

2. [1.18] Opening File and Filing System

B. [1.19] Acknowledgment of Claim

C. [1.20] Demand Letter to Debtor

1. [1.21] Federal Statutes

a. [1.22] Retail Installment Sales Act

b. [1.23] Motor Vehicle Retail Installment Sales Act

ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION 1 13

IV. DETERMINING WHETHER TO FILE SUIT

B. [1.25] Determining Legal Character of Debtor

C. Documentation Received from Creditor or Forwarder

ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION 1 15

3. [1.28] Acceleration Clause

If a claim is based on an installment obligation, the contract must contain an acceleration

D. [1.29] Analysis of Debtor

4. incorporated debtor operating out of home;

ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION 1 17

8. bankruptcy and assignment for the benefit of creditors; and

1. [1.30] Financial Difficulties

An alternative to the payment stipulation with a debtor who is suffering a minimal or

2. [1.31] Disputed Claims

ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION 1 19

3. [1.32] Scam Operator

4. [1.33] Incorporated Debtor Operating out of Home

5. [1.34] Broken Promises

6. [1.35] Professional Debtor

ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION 1 21

7. [1.36] Out of Business

8. [1.37] Bankruptcy and Assignment for the Benefit of Creditors

9. [1.38] The Debt Protestor

ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION 1 23