We received a summons and affidavit for nonwage garnishment for one of our customers in May of 2017, when the customer had approximately $1,600 in their account. We completed the interrogatories attached to the affidavit for nonwage garnishment in June of 2017, when the customer had approximately $2,000 in the account, and we listed that amount. The judgment entered against our customer exceeded $2,000, so we turned over the full amount held in the account. Did we respond correctly?

No, we believe that when responding to an affidavit for nonwage garnishment, you should list only the property belonging to the debtor in your possession as of the date you were served with the garnishment affidavit and summons.

Your bank, as the “garnishee” in possession of a judgment debtor’s property, is responsible for placing a hold on the debtor’s property once you have received a garnishment affidavit and summons. The judgment automatically becomes a lien on the debtor’s property in your possession “at the time of the service of the garnishment summons and remains a lien thereon pending the garnishment proceeding.” When responding to the attached interrogatories, the garnishee must list any property in its custody or control belonging to the judgment debtor “as of the date of service of the garnishment summons.” The date of service of the garnishment summons is the date on which your bank received these documents; the exact date should be notated in a certified or registered mail receipt.

Consequently, we believe your response to the interrogatories should have listed only the lower amount in your customer’s account as of the date you received the garnishment summons in May. Unlike the lien created by a citation to discover assets — which includes property acquired after the citation is served — the lien created by an affidavit for nonwage garnishment includes only the judgment debtor’s property in your possession at the time the garnishment summons is served.

For resources related to our guidance, please see:

Illinois Code of Civil Procedure, 735 ILCS 5/12-707(a) (“Duties of garnishee. (a) To the extent of the amount due upon the judgment and costs, the garnishee shall hold, subject to the order of the court any non-exempt indebtedness or other non-exempt property in his or her possession, custody or control belonging to the judgment debtor or in which the judgment debtor has any interest. The judgment or balance due thereon becomes a lien on the indebtedness and other property held by the garnishee at the time of the service of garnishment summons and remains a lien thereon pending the garnishment proceeding.”)

Illinois Code of Civil Procedure, 735 ILCS 5/12-707(b) (“The garnishee shall file, on or before the return date, or within the further time that the court for cause may allow, a written answer under oath to the interrogatories, setting forth as of the date of service of the garnishment summons any indebtedness due or to become due to the judgment debtor and any other property in his, her or its possession, custody or control belonging to the judgment debtor or in which the judgment debtor has an interest. The garnishee shall mail, by first class mail, a copy of the answer to the judgment creditor or its attorney and to the judgment debtor at the address specified in the affidavit filed under Section 12-701 of this Act, or at any other address or location of the judgment debtor known to the garnishee, and shall certify in the answer that it was so mailed to the judgment debtor.”)

Illinois Code of Civil Procedure, 735 ILCS 5/12-701 (“Upon the filing by a judgment creditor, its attorney or other designee of (1) an affidavit that the affiant believes any person is indebted to the judgment debtor, other than for wages, or has in his or her possession, custody or control any other property belonging to the judgment debtor, or in which the judgment debtor has an interest, which person shall be identified as the garnishee, and includes the last address of the judgment debtor known to the affiant as well as the name of the judgment debtor, (2) the garnishment notice required by Section 12-705, and (3) written interrogatories to be answered by the garnishee with respect to the indebtedness or other property, the clerk of the court in which the judgment was entered shall issue summons against the person named in the affidavit commanding him or her to appear in the court as garnishee and answer the interrogatories in writing under oath. The interrogatories shall require that the garnishee certify that a copy of the completed interrogatories, as specified in subsection (b) of Section 12-707, has been mailed to the judgment debtor and shall be in a form consistent with local court rules.”)

Ingrassia v. Ingrassia, 156 Ill. App. 3d 483, 501, 509 N.E.2d 729, 742 (2nd Dist. 1987). (“Service of a document by certified mail is generally complete when the party to whom it is addressed receives it, and the registry receipt is evidence of its receipt by the party. (See 87 Ill. 2d R. 105(b)(2).)”)

Illinois Supreme Court Rule 105(b) (“The notice may be served by any of the following methods: . . . (2) By prepaid certified or registered mail addressed to the party, return receipt requested, showing to whom delivered and the date and address of delivery. The notice shall be sent ‘restricted delivery’ when service is directed to a natural person. Service is not complete until the notice is received by the defendant, and the registry receipt is prima facie evidence thereof.”)

Illinois Code of Civil Procedure, 735 ILCS 5/2-1402(m)(2) (A citation to discover assets “becomes a lien . . . (2) When the citation is directed against a third party, upon all personal property belonging to the judgment debtor in the possession or control of the third party or which thereafter may be acquired or come due the judgment debtor and comes into the possession or control of the third party to the time of the disposition of the citation.”)