Now that the economy is picking up, more and more people are offered jobs in different areas of the United States. For one reason or another, Illinois was the second most popular state to move away from last year. The opportunity to accept a position in another state creates a unique problem for McHenry County divorcees with minor children. How do you take your kids with you when you move? Hopefully, this article will attempt to shed some light on the steps you need to take and the risks you face by seeking the divorce court’s permission to leave the state with your children.

The right to permanently remove children from the State of Illinois is governed by statute.

The Illinois Marriage and Dissolution of Marriage Act (IMDMA) governs most scenarios that arise relating to your children after your divorce. Section 609 of the IMDMA governs the situation when a party wants to remove the minor children from the State. It provides, in full, that:

 

Sec. 609. Leave to Remove Children.

(a) The court may grant leave, before or after judgment, to any party having custody of any minor child or children to remove such child or children from Illinois whenever such approval is in the best interests of such child or children. The burden of proving that such removal is in the best interests of such child or children is on the party seeking the removal. When such removal is permitted, the court may require the party removing such child or children from Illinois to give reasonable security guaranteeing the return of such children.

(b) Before a minor child is temporarily removed from Illinois, the parent responsible for the removal shall inform the other parent, or the other parent’s attorney, of the address and telephone number where the child may be reached during the period of temporary removal, and the date on which the child shall return to Illinois.

The State of Illinois retains jurisdiction when the minor child is absent from the State pursuant to this subsection.

(c) The court may not use the availability of electronic communication as a factor in support of a removal of a child by the custodial parent from Illinois.

 

Here are the highlights:

• It may seem obvious, but you cannot seek to remove your children from the state without gaining custody of the child first. If you are a non-custodial parent with visitation rights, you do not have the right to remove your kids from the state.
• That said, the opposite is not true. If you have sole custody of your children and your ex merely has visitation, you do not have an absolute right to take the kids with you to move out of the state.
• If you desire to permanently remove your children from the state, you first have to ask the court’s permission.
• The court can only grant you permission to take the kids with you after you show that it is in the “best interests” your children.
• You have to notify your ex before you remove the kids from the state on a temporary basis (e.g. vacation, summer camp).

 

Retain a lawyer and prepare for a fight.

Removal petitions are fought hard because the non-removing parent loses significant access to their children, and these petitions are heavily scrutinized by judges. If you are seeking to remove your children from McHenry County or the State of Illinois, you need to retain an attorney to have the best possible odds of succeeding.

The Third District of the Appellate Court of Illinois recently issued its final opinion in Bank of America, N.A. v. Basile, 2014 IL App (3d) 130204 (May 20, 2014). The Basile opinion is notable because the Third District issued an award of attorney fees and costs to Bank of America sua sponte (i.e. without BoA asking for them) because it believed the Basiles’ appeal and conduct before the trial court was so frivolous.

To make one thing clear, although I defend a number of residential foreclosure cases, I have never (thankfully) engaged in the bad tactics that the Basile defendants did. There are ways to defend mortgage foreclosure cases without having to violate the Illinois Rules of Professional Conduct or Supreme Court Rule 137. That said, every mortgage foreclosure defense practitioner is now in jeopardy of being hit with an award of sanctions. While the Third District is more bank-friendly than the First District (which is more bank-friendly than my home District, the Second), Basile will be cited in every appellate brief by a mortgage lender to request an award of costs and attorney fees. This will have a chilling effect on the practice of mortgage foreclosure defense in Illinois, and maybe for the better.

The one thing that I found especially interesting and that made me write this post,  is the actual monetary amount of the sanction awarded in Basile. The homeowners were hit with $6,752.50 in attorney fees and costs by the Appellate Court. See Basile, ¶ 45. The monthly fair market value of the property agreed to by the homeowners and Bank of America was $1,250.00. See Basile, ¶ 65. Thus, the sanction imposed by the Appellate Court was the equivalent of about 5.5 months of use of the property. Because of their tactics defending the case, the homeowners were able to live rent or mortgage free from 2008 until April 2013, or 65 months.

If the monetary sanction imposed by the Appellate Court was intended to deter this type of bad conduct, it was woefully inadequate. Until the financial penalty for bad-faith mortgage foreclosure defense begins to approach the value created for the homeowner of retaining the property, economically rational homeowners will commence bad-faith defense knowing full well that a penalty will ultimately be imposed.

Without commenting on whether I believe the Court reached the correct result, the Third District of the Appellate Court of Illinois issued an interesting opinion in People v. Costello, 2014 IL App (3d) 121001 (October 23, 2014). Without getting too much into the background of the case, an Order of Protection was issued against the Costello Defendant, and one of the provisions of the Order of Protection ordered the Defendant was to surrender all of his firearms to the Sheriff including certain named firearms. On the date that the Sheriff came for his weapons, the Sheriff found none.

It seems (at least from my brief reading) that the Costello Defendant’s trial strategy was taking the 5th and forcing the State to prove its case against him, leaving the finder of fact to wonder where the guns went (i.e. were the hidden, sold, transferred out of state, etc.). Well, that strategy blew up in his face. The Appellate Court found that the mere failure to turn over any firearms (whether there were any guns in the possession of the Defendant or not) established a prima facie case for a violation of the Order of Protection. It then became the burden of the Costello Defendant to plead the affirmative defense of impossibility (i.e. present evidence that it would have been impossible to commit the offense because the Defendant had no guns in his possession).

You’re innocent until you are proven guilty of a crime, right? Well, I guess this case creates an exception to that rule. Expect to see an appeal to the Illinois Supreme Court.

So, you have filed a lawsuit and you won. Now what? In this post, we provide a run-down of basic techniques for judgment collection in Illinois.

You have won your case and have obtained a judgment. How do you convert that judgment into money?

Early in my career, a seasoned attorney congratulated me after winning my first big case but cautioned that “Every schmuck in this courthouse has won a million dollar judgment. Next to none of them have collected it.” I was absolutely shocked at the time, but he was right–obtaining a judgment is less than half the battle.

Before you do anything, check to see if the person that owes you money has filed bankruptcy.

You know about the automatic stay in the federal bankruptcy law, right? The prohibition of the automatic stay is crystal clear: ” the commencement or continuation . . .of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before [the debtor filed bankruptcy] or to recover a claim against the debtor that arose before the commencement of the case under this title” is illegal.

Don’t mess around with the automatic stay because bankruptcy judges have no qualms about fining and sanctioning creditors that violate the stay.  In most instances, when you have sued someone and they file bankruptcy, you will receive actual notice and an invitation to file a claim in the bankruptcy if the person you have sued has filed bankruptcy. If you have received this notice, file your Proof of Claim in the bankruptcy, and unless you believe that the debtor has defrauded you or committed some other bankruptcy offense, pray that you receive something in the bankruptcy.

If you have not received a Proof of Claim form, it is good practice to run a quick PACER search to see if the debtor has filed bankruptcy.

There are three main ways to collect a judgment in Illinois against individual debtors.

Section 2-1402 of the Code of Civil Procedure provides for three main judgment collection mechanisms:

• The “Citation to Discover Assets.” The Citation to Discover Assets is a legal proceeding by which you can compel the judgment debtor to come into court and testify under oath regarding his assets and liabilities. If there is property available to collect, you can ask the court for a turnover order or to conduct a judicial sale of the property.
• The “Non-Wage Garnishment.” The Non-Wage Garnishment is a useful tool if you know of a third-party that is holding the money or property of the debtor. Most commonly, it will be a bank or landlord that is holding cash for the debtor. Sometimes, however, you become aware that the debtor has transferred assets to a friend/relative/significant other to avoid collect. This tool is useful to compel the third-party to testify under oath regarding the property.
• The “Wage Garnishment.” Just about everyone is familiar with the concept of wage garnishment. A Wage Garnishment is a summons issued to the debtor’s employer commanding the employer to withhold a certain amount of wages and remit them to the court or the person who obtained the judgment.

There are other ways to collect judgments, and they are limited only by your creativity.

If the person has equity in their house, you can place a lien on their house and file a foreclosure suit. If the person owns a small-business, in some circumstances you can obtain a “Charging Order” against the small business that will entitle you to intercept any money that the debtor would try to pay himself from the business. You can go after the person’s state and local income tax returns.

The sky is essentially the limit for debt collection. If you know that the person has something of value, there is likely a way to convert that valuable property to money to satisfy your debt.

The value of a good attorney is knowing when and how to employ these techniques to maximize your recovery. Contact our attorneys today to discuss strategies for collecting your judgment.

Even the best drivers receive a traffic ticket from time to time. When should you retain an attorney to fight the ticket? In this article, I explain why you should fight most tickets and how to identify the tickets you should not fight.

1. If you receive a ticket in a state away from home, it will likely show up on your driving record.

All but five states participate in the Interstate Driver’s License Compact. The DLC is an agreement among those 45 states to exchange information concerning license suspensions and traffic violations of non-residents with the state in which the driver is licensed.

As of October 2014 the five states do not participate in the DLC are Georgia, Massachusetts, Michigan, and (most importantly for McHenry County, Illinois residents) Wisconsin. Those five states will not report the minor traffic infractions you receive in their state to the state that issued your license, and therefore, will not have a negative impact on your license.

If you receive a traffic ticket in any of the other 45 states, the offense will be reported to the state that issued your license, and admitting guilt will result in a negative mark on your license.

2. You have a Commercial Driver’s License (CDL).

If you are a professional driver, you likely know the CDL laws better than I do. But, it’s worth stating that every commercial driver has a DAC report which shows your drug/alcohol testing results, criminal record, motor vehicle record, social security number verification, credit reports, workers’ compensation history, and personal injury reports, among other information.

A bad DAC report will jeopardize your ability obtain employment if you’re currently idle and to move to a better employer if the opportunity presents itself. Guard your DAC report carefully because it literally represents your ability to make a living.

If you have a CDL, contest every ticket.

3. You are under the age of 21.

In Illinois, until you hit the age of 21, if you have two (2) moving violations in any 24 month period, your license will be suspended. If you are under the age of 21, contest every ticket every time. Having one moving violation conviction on your record is playing with fire, and you only need one additional inattentive moment before your license is suspended.

4. You are at risk of a license suspension.

If you carry an Illinois driver’s license and if you are an adult, your license will be suspended if you have three (3) moving violations in any 12 month period. A common refrain among Illinois drivers is that “we do not have driver’s license points in Illinois.” While this true in determining whether your license will be suspended, points are important in determining the length of time your license will be suspended when the suspension kicks in.

If you have a lot of points on your license for serious moving violations, your suspension can be for a long time. Section 1040.30 of the Illinois Administrative Code sets forth the length of your 3-and-out suspension:

•  0 – 14 points: No Action
• 15-44 points: 2-month suspension
• 45-74 points: 3-month suspension
• 75-89 points: 6-month suspension
• 90-99 points: 9-month suspension
• 100-109 points: 12-month suspension
• 110+: Revocation.

Don’t get caught trying to figure out how many points you have. Start contesting your tickets from the first one.

When shouldn’t you contest your ticket?

While every case is unique, generally, you should not contest your ticket if:

• It is not a moving violation. Most moving violations in Illinois are codified in Chapter 11 of the Illinois Vehicle Code. If your offense isn’t listed in there, it is probably not a moving violation and pleading guilty will have no effect on your license.
• Your ticket is a “No appearance required” ticket and you have the option to obtain Court Supervision with or without Traffic Safety School.

If you have any questions about whether to contest your ticket, you should give me a call. I will be honest with you and let you know whether you should fight your ticket.

The deadline to appeal is quickly approaching.

Property tax assessments have been published for properties located in Nunda Township and Algonquin Township. Grafton Township will be publishing soon. If you live in one of these townships and are interested in appealing your property tax assessment, you must act quickly. We are currently facing two deadlines:

• Nunda Township property tax appeals must be filed by Monday, October 6, 2014. 
• Algonquin Township property tax appeals must be filed by Friday, October 24, 2014. 

The deadline to file property tax appeals for Grafton Township is currently anticipated to be mid to late November.

 

You can experience real savings over the next four years by appealing.

If you live in the greater Crystal Lake area, you can expect to pay about 3.5% per year of your home’s fair market value in property taxes each year. Let’s suppose you have a house that is assessed at $300,000 but that actually is only worth $270,000. Here is how much money you can save:

Current tax bill: $300,000 x 3.5% = $10,500 in taxes per year

Tax bill after appeal: $270,000 x 3.5% = $9,450 in taxes per year

Yearly savings of $1,050. 

Choose an experienced property tax appeal lawyer.

We have appealed dozes of property tax bills for homeowners each year for the past several years. We are respected by the Board of Review at the county and know how to negotiate favorable settlements with the township assessors.

 

We offer the best deal in town.

We charge a flat fee of $300 per appeal for most appeals, which includes preparation of the appeal packet, selection of comparable properties, and attendance at hearing of your tax appeal to argue on your behalf.

 

Call today. You do not have much time.

We offer a risk-free free initial consultation to discuss your property tax situation. If you have been thinking about appealing your taxes, now is the time because property values are on the rise–lock in your low assessment this year!

McHenry County eviction court is scary for both tenants and landlords. Tenants have uncertainty about if and when they will lose their housing. Landlords experience uncertainty regarding when they will be paid next and how long it will take the rental unit to become rent-able again. This post explains how important it is to try to settle your eviction case and why it is important to select an attorney willing to help facilitate settlement.

Work things out if you can before heading to or being dragged into McHenry County eviction court.

This advice applies equally for landlords and tenants: If your dispute over possession of a rental unit or back rent has to go to court, you have already lost. Let that sink in for a second. There are no winners in the McHenry County eviction court. There are only losers in that courtroom.

Landlords have lost because they lose precious time to get the rental unit back on the marke,t and they more often than not lose the money they have to pay their attorney (Sure, your lease has a provision that the tenants have to pay you for your costs of collection, but what makes you think that people who cannot pay their rent can pay your judgment for attorney fees?).

Tenants lose even worse. You are faced with an uncertain timeline for moving out. If you cannot find a place to go before the eviction order is executed, you and your belongings will be escorted to the curb and left there by a Sheriff’s deputy. Good luck finding another rental unit with an eviction on your record.

This is why it is so important for both tenants and landlords to settle the matter before taking it to McHenry County eviction court.

We help facilitate settlement.

The first thing our experienced eviction attorneys do before filing an eviction lawsuit or attempting to defend an eviction lawsuit is to try to work things out with the other side. Out of court settlement provides the best possible results for our clients. Landlords are better off by settling (even if it means that they give up some of the back rent, which they will likely not see anyhow) because voluntarily vacating tenants leave the premises in better condition, minimizing repair bills and repair time. Tenants are better off because it can potentially avoid an expensive money judgment and all of the bad consequences that go with money judgments (wage garnishment, bank account freezes, being dragged into court to disclose your assets and liabilities).

Many eviction lawsuits cannot be resolved and require court intervention.

Some tenants are unwilling or, more often than not, unable to accept even the most reasonable settlement offers by landlords. On the flip side of that coin, some landlords want to run the tenant through the ringer. Eviction lawsuits are a fact of life in McHenry County. In 2013, 993 “Law-Medium” cases were filed in McHenry County court, of which probably 90% were eviction cases.

If you have to go to McHenry County eviction court, pick an aggressive attorney.

I personally enjoy litigating in the McHenry County eviction court. The trials are fast paced and require that your attorney think quickly on his feet. If you need to retain an attorney for your McHenry County eviction case, give me a call to talk about what I can do for you. I offer all of my eviction clients a complimentary, no charge, initial consultation to discuss their eviction case.

Wondering how long you have before your McHenry County foreclosure case concludes, and you are evicted? This article provides you with a basic timeline for what to expect in McHenry County foreclosure court.

DISCLAIMER: Every case is different. Your case may move at a different pace than what this article sets forth. This article is meant only to provide an average timeline for uncontested mortgage foreclosure cases in McHenry County. Numerous factors could vary the amount of time your case takes. You should not rely on the information contained within this article when making decisions about the current status of your foreclosure case or to decide much time you have left. If you really need a good answer, I am more than happy to chat with you at no cost. My contact information is at the top of this page.

Here is a rough timeline of what you can expect in McHenry County foreclosure court if you do nothing:

0-3 months from first missed payment. After your first missed mortgage payment, your bank is required to send you a “Grace Period Notice,” and in many cases conduct a “Face to Face” interview with the homeowner to discuss solutions to the late payments. The Grace Period Notice will advise you of your right to obtain housing counseling, and during the time you obtain counseling, the bank can take no further action. After three missed payments, so long as you are not in approved housing counseling, the foreclosure action can begin.

4-6 months from first missed payment. The bank has filed a foreclosure lawsuit against you. If you are unlucky, you are served with papers shortly after the lawsuit is filed. For 90 day from the date that the foreclosure complaint is filed, you have a right to reinstatement. Hypothetically, you could gather enough money to pay off what you owe on the mortgage (plus court costs and attorney fees) and reinstate your mortgage loan. If you had that kind of money laying around, you would not be in foreclosure in the first place.

6 months from the first missed payment. This is likely to be your first date in court. Historically, few of the banks’ attorneys are ready to proceed on this day. Better attorneys, however, are. An order finding you to be in default will be entered, and a future court date (approximately 6 weeks out will be set for the bank to prove the amount it is owed).

7.5 months from first missed payment. Bank proves up its case, a “Judgment of Foreclosure” is entered. This starts the clock for your redemption period. You now have three months to pay off all overdue amounts on the mortgage including attorney fees and costs.

8.5 months from the first missed payment. JUDGMENT EFFECTIVELY BECOMES FINAL, AND YOU WILL ALMOST CERTAINLY LOSE YOUR HOUSE. Illinois law grants judges the discretion to modify any non-final orders or judgments. The Judgment of Foreclosure is not the final order in the case, the Order Approving Sale is. However, in my experience the foreclosure judges in McHenry County will not use that discretion to disturb the Judgment of Foreclosure after 30 days without a showing of exceptional circumstances. If you are thinking about hiring an attorney to defend the foreclosure you should do it well in advance of this point.

10.5 months from first missed payment. The bank has to publish public notice of the judicial sale in the newspaper. The bank will publish the required notice in the newspaper during the redemption period and will schedule the judicial sale to occur shortly after redemption expires. The bank will conduct the sale and sell your house for 60 to 80 cents on the dollar. About a week later, the bank files a motion for an “Order Approving Sale.”

11.5 months from the first missed payment. It takes about a month for the Motion for Order Approving Sale to be heard in McHenry County foreclosure court. On that date, the judge will enter an order approving sale and staying enforcement of the eviction order 30 days. If the proceeds of the judicial sale were not enough to satisfy the outstanding amount you owed, the judge will enter a judgment against you for the rest. Some of these judgments are huge—in the range of hundreds of thousands of dollars.

12.5 months from the first missed payment. The eviction order attached to the order approving sale is actionable. The order is delivered to the McHenry County Sheriff’s Department, which takes about two weeks to process the eviction order.

13 months from the first missed payment. You are evicted.

 

 

How an attorney can help.

Losing your house in foreclosure is terrible for two main reasons. First, you lose your house that you and your kids love. Because your credit is ruined from the foreclosure and judgment, you will have a very difficult time finding even a place to rent. Second, and even more terrifying, is that you will likely walk away with a judgment against you for the difference between what the bank is owed (including its attorney fees and costs) minus what your house sold for (which is about 60 to 80 cents on the dollar of what your house is actually worth). The bank can take this judgment and garnish your wages, freeze your bank accounts, and periodically drag you into court. It is the ultimate addition of insult to injury.

A competent, experienced McHenry County foreclosure defense attorney can help you. You have three primary options in foreclosure: attempt loss mitigation (a loan modification or short sale), fight the foreclosure as hard as you can (you will certainly lose, but you may extend the time you have the house for), or walk away (in most cases, you will still receive the personal liability judgment at the end of the day). None of these solutions are perfect, but obtaining competent legal counsel at the beginning makes your options much easier.

We have experience processing loan modification paper work for homeowners, arranging short sales (and we can give you a good referral for a short sale real estate agent, too), fighting foreclosures, and assisting McHenry County homeowners with dealing with the personal liability from the default.

We offer McHenry County mortgage foreclosure defense clients a free, no obligation consultation to discuss your issues. For most people, we are able to craft a solution that is cost effective and helpful to homeowners in distress. Give us a call today and sleep better tonight.

 

 

 

 

This post is the first of three blog posts explaining the basics of criminal record expungement in Illinois. Many of my clients come to me with misconceptions about what expungement can do and how to go about it, and it is my hope that these blog posts clear up some of those misconceptions.

This post covers whether you even qualify to have your record expunged. Part two will cover the process for obtaining an expungement. Part three will attempt to explain what expungement does (and does not do) for your day-to-day life. Links to those other two posts will be added to the bottom of this post when the articles are published, so stay tuned.

What law governs the expungement process?

In Illinois, the primary source of law guiding the expungement process is the Criminal Identification Act , which is codified at 20 ILCS 2630/0.01, et seq. The Criminal Identification Act is dense, but if you are interested in expunging your record you should try to read it.

Do you qualify for expungement?

A number of things prevent you from having your record expunged. Generally, the following issues come up:

• Current pending criminal charges. You need to wait until your cases is resolved and reaches a final disposition (meaning you are no longer on parole, probation or court supervision) before you can qualify for expungement.
• Prior conviction of a criminal offense (or a municipal ordinance violation in the nature of a criminal offense) is a bar to expungement. 20 ILCS 2630/5.2(b). If any of your prior court cases involved probation (other than limited first-offender drug probation programs), conditional discharge, a fine for anything other an a petty traffic ticket, time served, jail or prison, or a finding of guilty by a judge or jury (without having received supervision), then you cannot have your record expunged.

If you have no prior convictions but you received supervision for a charge, there still may be a waiting period:

If you received a disposition of supervision for any past charge, you must wait five (5) years after the successful completion of your supervision if your charge was for:

• Domestic battery
• Criminal Sexual Abuse
• Retail Theft
• Operating an Uninsured Motor Vehicle
• Display of a False Insurance Card
• Scrap Processors to Keep Records

If you received supervision for any other criminal charge (and remember that most traffic offenses are petty offenses, not criminal offenses), then you must wait two years after completion of your supervision.

If there was no finding of guilt, you can seek to have your record expunged immeditately. If you were released without charges, or if you were charged and that case resulted in a disposition of not guilty, finding of no probable cause, or a disposition of nolle prosequi (commonly referred to having the charges “Nol Prossed” or “NP’ed”), then you can file your expungement petition immediately.

Next steps if you qualify to have your record expunged.

Hopefully you are still with us and are eligible for expungement. Next week in Part 2 of this series, I will explain what you have to do to have your record expunged and why it is a good idea to retain an attorney.

The purpose of this article is to explain (1) why all small business owners and successful people need an asset protection planning strategy, (2) why products such as liability insurance are insufficient on their own to preserve your wealth, and (3) how a proactive approach with your attorney can make your assets safer (but they will never be 100% safe).

More risks to your wealth than ever.

Asset protection planning is more important than ever. Over the past 25 years, numerous social factors have resulted in unprecedented risks to personal wealth. Lawsuits are a big part of it. In 2006, there were 5,806 lawsuits filed per 100,000 Americans. In contrast, in that same year there were only 1,542 lawsuits per 100,000 Australians, 1,450 lawsuits per 100,000 Canadians, and 1,768 lawsuits per 100,000 Japanese. Our car insurance rates are three-times greater than what Australians pay, and we have 1 lawyer for every 250 people. We Americans are quick to take our disputes to the courts.

Even worse, punitive damages are asked for and granted in increasing numbers of cases. Two Duke University law professors published a study of all jury trials conducted in the United States in 2005. They found that there were requests for punitive damages in 45% of slander/libel/defamation cases, 38% of real estate disputes, 36% of employment discrimination cases, and 6% of personal injury and car crash cases. Punitive damages are almost unrelated to the actual damage caused and can reach into the millions or tens of millions of dollars range.

Liability insurance helps but is not a complete solution.

Your insurance policies do not cover punitive damage awards that are directly assessed against you. Since 1981, Illinois courts have consistently held that public policy prohibits insurance coverage for punitive damage awards. See Beaver v. Country Mut. Ins. Co., 420 N.E.2d 1058 (5th Dist. 1981) for a discussion of why Illinois courts believe punitive damage insurance is contrary to public policy.

Choose an attorney with experience crafting asset protection strategies for his clients.

Every asset protection strategy must be custom-tailored for the client. This field of law constantly evolves because asset protection is a game of cat and mouse—people trying to preserve wealth develop new strategies and people trying to take wealth develop new ways to get around those strategies. Moreover, some clients face greater levels of risk than others. If your attorney is not on the cutting edge of asset protection strategies, you are less safe than you could be. Call my office to schedule a free, no-obligation consultation to see how we can work to preserve your wealth.