Illinois Confession Of Judgment Statute

[Zulema Estabrooks]

Aconfession of judgment lets a creditor take a judgment without notice to the debtor, who usually first learns of the lawsuit when the creditor seizes his bank accounts and takes related steps. Here are strategies for representing commercial debtors facing such judgments.

The next day the guarantor learns that his home mortgage payment just bounced. His private banker tells him all his business and personal accounts are frozen, including the $125,000 in his personal and business accounts and his entire $3.5 million securities portfolio. The guarantor calls you, screaming that the bank seized his assets and that a personal judgment will cause his other business loans to default. He demands that you correct this injustice.

Illinois law recognizes the draconian nature of confession judgments2 and limits their use. Any strategy for attacking the confession judgment described above begins with a discussion about those limits.

The typical way to defend confession judgments is to attack them as void. Start with the obvious: A court cannot enter a valid money judgment without first obtaining in personam jurisdiction over the judgment debtor.4

The process of obtaining a judgment moves quickly. Often, a judgment is entered on the same day that a complaint for confession of judgment is filed. That judgment may then be recorded in any county in which the debtor owns real estate. Because no notice is required, a summons need not be served on the debtor.

Given the extraordinary nature of this remedy, a creditor might conclude that it should attempt to obtain a judgment by confession whenever possible. There are, however, compelling reasons why this may not be the case.

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As to the second point, because the confession of judgment remedy is a creature of an Illinois statute, it must be strictly construed. See 735 ILCS 5/2-1301(c). Voidness issues aside, that section requires the creditor to file a confession judgment suit only in the county in which (1) the note or obligation containing the confession of judgment clause was executed, (2) one or more of the defendants reside, or (3) in which any real or personal property owned by any of the defendants is located.

Because Illinois courts view judgments by confession with some skepticism, the law affords various remedies and means of challenging them not covered by this article. For further information on how to defend a judgment by confession case or to use such a provision offensively, contact Levin Ginsburg at (312) 368-0100.

The Post-Judgment and Miscellaneous Remedies Section of the Circuit Court of Cook County is a section within the First Municipal District. Judges in this section preside over post-judgment and supplementary proceedings. In addition, they hear original actions such as replevin, detinue, confession of judgment, and petitions to revive judgments.

Information regarding courtroom procedures for the Post Judgment and Miscellaneous Remedies Section is available in Room 1401 Standing Order (March 17, 2021). The Order applies to all proceedings in Room 1401 from March 17, 2021, forward. The most significant changes to our Standing Order are that all submissions will now be to a single email address, Room1401...@gmail.com, and all Motions are by request only, using the Notice of Motion form at Appendix B-2. There is no longer an 8:45 Routine Motion Call. The Court will set all Motion hearings. The only time Zoom instructions should be sent are for judgment debtor Citation examinations and Replevin/Detinue service of process. Third-party Citation Return Dates are an answer date only. No Zoom instructions should be sent with third-party Citations, and no one should appear unless the Court sets a hearing on the third-party Citation.

The applicable period during which an applicant must show that he or she has been a person of good moral character (GMC) depends on the corresponding naturalization provision.[1] In general, the statutory period for GMC for an applicant filing under the general naturalization provision starts 5 years prior to the date of filing.[2]

The statutory period starts 3 years prior to the date of filing for certain spouses of U.S. citizens.[3] The period during which certain service members or veterans must show GMC starts 1 or 5 years from the date of filing depending on the military provision.[4]

It is not always clear if the outcome of the arrest resulted in a conviction. Various states have provisions for diminishing the effects of a conviction. In some states, adjudication may be deferred upon a finding or confession of guilt. Some states have a pretrial diversion program whereby the case is removed from the normal criminal proceedings. This way the person may enter into a counseling or treatment program and potentially avoid criminal prosecution.

If the accused is directed to attend a pre-trial diversion or intervention program, where no admission or finding of guilt is required, the order may not count as a conviction for immigration purposes.[10]

In general, a guilty verdict, ruling, or judgment in a juvenile court does not constitute a conviction for immigration purposes.[11] A conviction for a person who is under 18 years of age and who was charged as an adult constitutes a conviction for immigration purposes.

In cases where adjudication is deferred, the original finding or confession of guilt and imposition of punishment is sufficient to establish a conviction for immigration purposes because both conditions establishing a conviction are met. If the court does not impose some form of punishment, then it is not considered a conviction even with a finding or confession of guilt. A decision or ruling of nolle prosequi[13] does not meet the definition of conviction.

If a judgment is vacated for cause due to Constitutional defects, statutory defects, or pre-conviction errors affecting guilt, it is not considered a conviction for immigration purposes. The judgment is considered a conviction for immigration purposes if it was dismissed for any other reason, such as completion of a rehabilitative period (rather than on its merits) or to avoid adverse immigration consequences.[14]

A conviction vacated where a criminal court failed to advise a defendant of the immigration consequences of a plea, which resulted from a defect in the underlying criminal proceeding, is not a conviction for immigration purposes.[15]

An applicant who has received a full and unconditional executive pardon[18] prior to the start of the statutory period may establish GMC if the applicant shows that he or she has been reformed and rehabilitated prior to the statutory period.[19] If the applicant received a pardon during the statutory period, the applicant may establish GMC if he or she shows evidence of extenuating or exonerating circumstances that would establish his or her GMC.[20]

A record of conviction that has been expunged does not remove the underlying conviction.[22] For example, an expunged record of conviction for a controlled substance violation[23] or any crime involving moral turpitude (CIMT) does not relieve the applicant from the conviction in the immigration context.[24] In addition, foreign expungements are still considered convictions for immigration purposes.[25]

An officer may not approve a naturalization application while the applicant is on probation, parole, or under a suspended sentence.[30] However, an applicant who has satisfactorily completed probation, parole, or a suspended sentence during the relevant statutory period is not automatically precluded from establishing GMC. The fact that an applicant was on probation, parole, or under a suspended sentence during the statutory period, however, may affect the overall GMC determination.

The officer must ensure that the applicant is under oath when taking the sworn statement to record the admission. The sworn statement must cover the requirements for a valid admission, to include the specifics of the act or acts that may prevent the applicant from establishing GMC. The officer may consult with his or her supervisor to ensure that sufficient written testimony has been received from the applicant prior to making a decision on the application.

Certain conditional bars to GMC should not adversely affect the GMC determination if the applicant shows extenuating circumstances.[41] The extenuating circumstance must precede or be contemporaneous with the commission of the offense. USCIS does not consider any conduct or equity (including evidence of reformation or rehabilitation) subsequent to the commission of the offense as an extenuating circumstance.

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