PNC Bank, N.A. v. Hoffmann , 2015 IL App (2d) 141172 ( 2015 )

2015 IL App (2d) 141172
No. 2-14-1172
Opinion filed July 8, 2015
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
PNC BANK, N.A., ) Appeal from the Circuit Court
) of Du Page County.
Plaintiff-Appellee, )
)
v. ) No. 11-L-913
)
CAMILLE O. HOFFMANN, ) Honorable
) Dorothy French Mallen,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE SPENCE delivered the judgment of the court, with opinion.
Justices Hudson and Birkett concurred in the judgment and opinion.
OPINION
¶1 Plaintiff, PNC Bank, N.A. (PNC), brought suit against defendant, Camille O. Hoffmann,
as guarantor of a multimillion-dollar loan. On December 11, 2013, the trial court entered
judgment in PNC’s favor for $10,613,320.14. PNC thereafter issued citations to discover assets
on several parties, including Raymond James & Associates, Inc., where Hoffmann had an
individual retirement account (IRA). Hoffmann sought to declare the retirement account exempt,
and PNC initially took the position that she had not met her burden of proof for the exemption.
Several weeks later, PNC agreed that the IRA was exempt. Hoffmann then sought damages
under section 12-1005 of the Code of Civil Procedure (Code) (735 ILCS 5/12-1005 (West
2012)), which allows for damages when a judgment creditor seizes exempt property. The trial
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court denied damages, ruling that there had been no seizure under the statute, and Hoffmann
appeals this ruling. We affirm.
¶2 I. BACKGROUND
¶3 On April 24, 2014, PNC issued a citation to discover assets to West Suburban Bankcorp.,
Inc. (WSB). According to Hoffmann, her Raymond James IRA contained WSB stock, so when
PNC issued the citation to WSB, her IRA was frozen. On July 3, 2014, Hoffmann filed a motion
to declare the IRA exempt. She alleged that the IRA was established on June 2, 2010, before
PNC filed suit, and thus the IRA was exempt from seizure under section 12-1006 of the Code
(735 ILCS 5/12-1006 (West 2012)). She stated that she was also reserving the right to request
damages from PNC under section 12-1005.
¶4 On July 8, 2014, PNC issued a citation to discover assets to Raymond James.
¶5 The trial court held a hearing on Hoffmann’s exemption motion on July 15, 2014. PNC’s
counsel stated that the IRA had about 2,158 shares of WSB stock, worth about $800,000, and
additional cash. He stated that the IRA would be exempt if it complied with the Internal
Revenue Code but that determining this would require looking at when it was established, how it
was funded, and whether there were contributions and distributions. The trial court asked if he
was saying that he would have no problem with a temporary order declaring the IRA exempt, but
with leave for further discovery. PNC’s counsel said that he was actually going to ask for a
temporary order freezing the IRA, pending a final determination as to the exemption status.
PNC’s counsel stated that he had requested documents bearing on the good-faith intent as to both
the establishment and the administration of the IRA. Hoffmann’s counsel replied that the
document request was made the previous day, and that he had brought some of the documents
with him. The trial court took a break from the matter so that the attorneys could discuss the
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IRA and another issue. When the matter was called again, Hoffmann’s counsel stated: “We
have basically agreed to briefing schedules on both motions,” with the last reply being due on
August 26, 2014.
¶6 PNC filed a response to Hoffmann’s exemption motion on August 19, 2014, arguing that
she had not sustained her burden of proof for the exemption. PNC argued, among other things,
that the potential for litigation began before 2010; Hoffmann had transferred over $20 million in
property in 2009; and the documents Hoffmann provided did not show when and in what
amounts contributions and distributions were made to and from the IRA.
¶7 Hoffmann filed a reply on August 27, 2014, disputing PNC’s assertions.
¶8 On September 4, 2014, the trial court held a hearing on Hoffmann’s exemption motion.
PNC’s counsel stated that, unless and until he went through 40 years of tax records, he was
“satisfied,” from what he had seen, that the IRA was exempt. He stated that in her reply
Hoffmann had “finally” attached the pension plan and some of the operational records.
Hoffmann’s attorney argued that damages were appropriate because an exempt asset had been
seized.
¶9 The trial court granted Hoffmann’s motion to declare the IRA exempt. However, it
denied damages under section 12-1005 without prejudice, on the basis that Hoffmann did not
specifically request such damages in her original motion; the trial court stated that Hoffmann
could raise the issue in a new motion. The trial court then granted PNC’s request to dismiss the
citation against Raymond James.
¶ 10 On September 12, 2014, Hoffmann filed a motion for damages under section 12-1005.
She argued that PNC had wrongly seized the IRA, denying her the benefit of the exempt asset for
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over two months. Hoffmann maintained that under section 12-1005 she was entitled to double
the value of the property seized.
¶ 11 In PNC’s response, it argued that: Hoffmann had failed to produce documents supporting
her exemption claim; there was no seizure under section 12-1005; and, even if a seizure had
occurred, PNC could not be liable for damages, because its objection to the exemption was filed
in good faith.
¶ 12 A hearing on the section 12-1005 motion took place on November 6, 2014. Hoffmann’s
counsel argued, inter alia, that, at the initial hearing on the exemption motion, although he had
documents that he believed clearly showed that the IRA was exempt, PNC asked for a five-week
briefing schedule, filed a response stating that Hoffmann had not met her burden, and then
conceded the motion. PNC’s counsel argued, in relevant part, that he asked for the briefing
schedule partly so that he could review the documents that Hoffmann had brought. He stated
that, because PNC had issued the citation to discover assets to Raymond James, it had received
up to a thousand more pages of documents that would take some time to review. He further
stated that Hoffmann had attached additional documents to her reply, which finally established a
prima facie case for exemption. He stated that PNC decided that it did not want to review 40
years’ of documents to find out whether the IRA was operationally compliant with the revenue
code, so at the final hearing on the exemption motion he had stated that PNC was not going to
further challenge Hoffmann’s exemption claim.
¶ 13 The trial court denied Hoffmann’s motion for damages. It stated that Hoffmann’s
position was that, once PNC was aware of prima facie evidence that the IRA was exempt but
continued to pursue the citation, its actions constituted a seizure. The trial court stated that
section 12-1005 seemed to require a party to file a civil action for damages, but since PNC did
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not raise an argument as to whether the motion was procedurally appropriate, the trial court
would not consider it. The trial court continued that, in considering the statute’s plain language:
“I am finding that in this particular case there was no taking and there was no
seizing even though there was an infringement on the right of Mrs. Hoffman [sic] to
dispose of her property as she sees fit. And I do recognize there was. But that is our
process and that was done legally.”
The trial court stated that a party with a good-faith basis should have the right to investigate and
respond to an exemption motion and that PNC’s request was reasonable under the circumstances.
The trial court stated that it allowed about two months to explore the issue and that the rules were
appropriately followed.
¶ 14 Hoffmann’s counsel asked the trial court if it believed that its ruling was final and
appealable. PNC’s counsel stated that he did not believe it was, so Hoffmann’s counsel asked
for language under Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010). The trial court
stated that, if Hoffmann’s counsel believed that such language was necessary, he could file a
motion within 30 days of the order. Hoffmann ultimately did not seek such language.
¶ 15 Hoffmann filed a notice of appeal on November 21, 2014.
¶ 16 II. ANALYSIS
¶ 17 A. Jurisdiction
¶ 18 PNC contends that we lack jurisdiction over this appeal, so we first address that issue.
Hoffmann argues that we have jurisdiction under Illinois Supreme Court Rule 304(b)(4) (eff.
Feb. 26, 2010), which allows the appeal of a “final judgment or order entered in a proceeding
under section 2-1402 of the Code of Civil Procedure.” Section 2-1402 governs supplementary
proceedings in which a judgment creditor can seek to discover and recover assets of the
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judgment debtor to satisfy the judgment. 735 ILCS 5/2-1402 (West 2012); Village of Lake in the
Hills v. Niklaus, 2014 IL App (2d) 130654, ¶ 19. Hoffmann sought damages under section 12-
1005, which states:
“If any officer by virtue of any judgment or process, or any other person by any right of
distress takes or seizes any of the articles of property exempted from levy and sale, as
provided in Part 10 of Article XII of this Act, such officer or person shall be liable in a
civil action to the party damaged for double the value of the property so illegally taken or
seized and costs of the action.” 735 ILCS 5/12-1005 (West 2012).
¶ 19 PNC argues that the supplementary proceeding that gave rise to Hoffmann’s section 12-
1005 motion was the Raymond James citation proceeding. PNC maintains that the September 4,
2014, order granting Hoffmann’s exemption motion and dismissing the Raymond James citation
concluded that supplementary proceeding and had the effect of foreclosing PNC from collecting
any of the judgment from Raymond James. PNC cites Shipley v. Hoke, 2014 IL App (4th)
130810, ¶ 110, where the court stated that, once underlying supplementary proceedings have
automatically terminated, all other collateral proceedings must terminate as well, except as
exempted by supreme court rule. The Shipley court held that, where the creditor allowed the
supplementary proceedings to automatically terminate under Illinois Supreme Court Rule 277(f)
(eff. July 1, 1982), the trial court lost authority under section 2-1402(f)(1) (735 ILCS 5/2-
1402(f)(1) (West 2010)) to punish a party who violated a restraining provision of a citation.
Shipley, 2014 IL App (4th) 130810, ¶¶ 112-14. PNC argues that in this case, once the September
4, 2014, order was entered, the trial court lost jurisdiction to hear any proceedings collateral to
the citation proceeding, including the motion for damages.
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¶ 20 PNC argues that any appeal relating to the Raymond James citation had to be brought
within 30 days of the September 4, 2014, order. PNC notes that a motion is said to be directed
against a judgment (see Ill. S. Ct. R. 303(a)(1) (eff. May 30, 2008) (includes phrase “directed
against the judgment”)) if it attacks the judgment, such as by requesting rehearing, retrial,
modification, or vacation of the judgment. See D’Agostino v. Lynch, 382 Ill. App. 3d 639, 643
(2008). It argues that, therefore, after September 4, the only type of motion relating to the
citation over which the trial court could have exercised jurisdiction would have been a
postjudgment motion attacking the September 4 order. PNC contends that Hoffmann’s damages
motion did not attack the order and therefore did not toll the deadline for appealing any aspect of
the citation proceeding, making Hoffmann’s November 21, 2014, notice of appeal untimely.
¶ 21 Hoffmann counters that her motion for damages stemmed from her exemption motion,
which in turn stemmed from PNC’s citation to WSB. Hoffmann notes that PNC did not issue
and serve the Raymond James citation until after she had filed the exemption motion. Hoffmann
argues that, therefore, it is disingenuous for PNC to argue that the only supplementary
proceeding that gave rise to the damages motion was a proceeding on a citation issued after her
request to deem the IRA exempt. Hoffmann maintains that the damages issue arose in the
context of the citations to both WSB and Raymond James and that the WSB citation is still
ongoing.
¶ 22 Hoffmann argues that Rule 304(b)(4) does not state that the final judgment or order that
is appealable must dispose of an entire supplementary proceeding. She cites In re Estate of
Yucis, 382 Ill. App. 3d 1062, 1069 (2008), where this court stated that an order is final if it
disposes of the parties’ rights with respect to either the entire controversy or a definite and
separate portion of the controversy. Hoffmann argues that the order she appealed from disposed
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of the parties’ rights with respect to the IRA and whether PNC improperly seized that exempt
asset.
¶ 23 Finally, Hoffmann argues that Shipley does not bar her appeal, because the court there
stated that a time-bar argument was not a limitation on subject matter jurisdiction but rather an
affirmative defense that was subject to forfeiture if not timely raised (see Shipley, 2014 IL App
(4th) 130810, ¶¶ 82, 109), and here PNC never asserted in the trial court that her damages
motion was time-barred.
¶ 24 As stated, Rule 304(b)(4) allows the appeal of a final judgment or order entered in a
section 2-1402 proceeding in which a judgment creditor goes after a judgment debtor’s assets.
“Few cases discuss which orders in supplementary proceedings are final orders.” In re Estate of
Yucis, 392 Ill. App. 3d at 1069. Generally, a final order is one that disposes of the parties’ rights
with respect to either the entire controversy or some definite and separate portion of the
controversy. Id. “ ‘An order in a section 2-1402 proceeding is said to be final when the citation
petitioner is in a position to collect against the judgment debtor or a third party, or the citation
petitioner has been ultimately foreclosed from doing so.’ ” Inland Commercial Property
Management, Inc. v. HOB I Holding Corp., 2015 IL App (1st) 141051, ¶ 26 (quoting
D’Agostino, 382 Ill. App. 3d at 642); see also Levaccare v. Levaccare, 376 Ill. App. 3d 503, 511
(2007) (citation orders became final and appealable upon their entry). In Inland, the appellate
court held that an order denying a substitution of judges was not a final judgment under Rule
304(b)(4), because it did not put the plaintiff in a position to collect the judgment amount or
direct third parties to turn over funds, nor was there any substantive determination of any of the
parties’ rights as to the merits of any claim in the postjudgment action. Id. In contrast, in
D’Agostino, the court held that an order was final and appealable under Rule 304(b)(4) where the
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plaintiffs were foreclosed from collecting funds from two third parties. D’Agostino, 382 Ill.
App. 3d at 642.
¶ 25 While we agree with PNC that the September 4, 2014, order granting the exemption
motion and dismissing the Raymond James citation was a final and appealable order because it
ultimately foreclosed PNC from collecting against Raymond James (see Inland, 2015 IL App
(1st) 141051, ¶ 26), we also agree with Hoffmann that she was not attempting to attack that order
when she filed her motion for damages, nor is she attempting to appeal from that order. We also
find unpersuasive PNC’s reliance on Shipley as authority prohibiting the damages motion, as
there the defendants asserted the affirmative defense that the collateral proceedings terminated
because the entire supplementary proceedings had automatically terminated under Rule 277(f)
(Shipley, 2014 IL App (4th) 130810, ¶¶ 110-15). In this case, the supplementary proceedings
were ongoing even after the damages motion had been ruled upon.
¶ 26 We note that section 12-1005 states that a party may be liable for damages in “a civil
action,” which arguably could be interpreted as requiring a separate action. However, as the trial
court pointed out, PNC did not object to Hoffmann’s bringing the motion in a section 2-1402
proceeding, so we do not consider whether Hoffmann’s motion was procedurally appropriate.
¶ 27 We conclude that, under the circumstances present here, when the trial court entered the
November 6, 2014, order, it was a final judgment on Hoffmann’s section 12-1005 claim, as the
order conclusively held that Hoffmann was not entitled to damages on her assertion that PNC
had wrongfully seized the IRA. That is, the trial court’s ruling was a final judgment that was
“entered in a proceeding under section 2-1402 of the Code of Civil Procedure” (Ill. S. Ct. R.
304(b)(4) (eff. Feb. 26, 2010)), so the ruling was immediately appealable under Rule 304(b)(4),
and Rule 304(a) language was not necessary. Therefore, we have jurisdiction over this appeal.
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¶ 28 B. Section 12-1005 Motion for Damages
¶ 29 We now address Hoffmann’s central argument on appeal, that the trial court erred in
ruling that PNC had not unlawfully seized her IRA. As stated, section 12-1005 provides that,
when a person “takes or seizes” exempt property, that person is liable to the damaged party for
double the value of the property illegally taken or seized, as well as costs of the action. 735
ILCS 5/12-1005 (West 2012). The construction of a statute is a question of law, which we
review de novo. McVey v. M.L.K. Enterprises, L.L.C., 2015 IL 118143, ¶ 11. Similarly, we
review de novo a trial court’s ruling in supplementary proceedings where, as here, the trial court
did not conduct an evidentiary hearing or make any factual findings. See Dowling v. Chicago
Options Associates, Inc., 226 Ill. 2d 277, 285 (2007).
¶ 30 Hoffmann notes that no court has defined “seizure” under section 12-1005. She argues
that, because property rights are fundamental rights, defining “seizure” under a fourth-
amendment analysis is appropriate. She cites People v. Raibley, 338 Ill. App. 3d 692, 699
(2003), where the court stated that, in a fourth-amendment context, to “seize” property means to
infringe, in a meaningful way, upon a person’s possessory interest in the property. Hoffmann
argues that the trial court’s finding that PNC had infringed on her use of the IRA should have led
to the conclusion that PNC had seized it. Hoffmann argues that, even if there is a good-faith
exception under section 12-1005, it does not apply here, because at the initial hearing she gave
PNC documents showing that the IRA was exempt. Hoffmann argues that PNC’s bad faith is
shown by: its refusal to release the IRA from the WSB and Raymond James citations to discover
assets; its refusal of the trial court’s offer to have the IRA deemed temporarily exempt, subject to
discovery; taking five weeks to respond to the exemption motion; and then conceding at the
hearing on the motion that the IRA was exempt. Hoffmann argues that, as a result, she was
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deprived of her exempt funds for more than two months, which constituted a meaningful
interference with the property. Hoffmann contends that PNC’s actions demonstrate that its true
motive was to deprive her of the use of the IRA for as long as possible and that it should be
liable for abusing the legal process, through the damages mandated under section 12-1005,
which would be double the value of the IRA.
¶ 31 PNC argues that Hoffmann did not comply with section 12-1005’s procedural
requirement of bringing a separate lawsuit and that this provides an independent basis to affirm
the trial court’s denial of the damages motion. As noted, however, PNC forfeited the alleged
procedural defect by failing to raise it in the trial court. See supra ¶ 26; Johnson v. Ingalls
Memorial Hospital, 402 Ill. App. 3d 830, 842 (2010) (failure to timely object to a procedural
deficiency results in forfeiture).
¶ 32 PNC next argues that it did not seize the IRA. PNC notes that almost all of the cases
involving section 12-1005 are from the 1800s and early 1900s and that most involved the seizure
and sale of a judgment debtor’s property by a constable or sheriff. See, e.g., Heckle v. Grewe,
125 Ill. 58 (1888); Keenan v. Drew, 144 Ill. App. 388 (1908). PNC maintains that in those cases
the seizure was obvious because the property was physically taken and sold in satisfaction of the
judgment. PNC notes that two comparatively recent cases that mentioned the statute, In re
Marriage of Schomburg, 269 Ill. App. 3d 13 (1995), and Jakubik v. Jakubik, 208 Ill. App. 3d 119
(1991), involved nonwage garnishment proceedings where an order directed the turnover of
funds. PNC argues that the circumstances in those cases are a far cry from the third-party
citation here, where PNC never took possession of the IRA and did not request or receive a
turnover order.
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¶ 33 PNC argues that Hoffmann’s analogy of the citation to a fourth-amendment seizure is
strained, at best, and does not provide constructive guidance to this court. PNC argues that a far
better analogue is Bank of Aspen v. Fox Cartage, Inc., 126 Ill. 2d 307 (1989). There, one of the
issues presented was whether a citation to discover assets under section 2-1402 was a wrongfully
issued injunction that deprived the third party of procedural due process. Id. at 309. Our
supreme court held that the restraining provision of section 2-1402 did not impose an injunction,
but rather merely informed the citee of penalties if it transferred or disposed of the judgment
debtor’s property. Id. at 315-16. The court also concluded that the third party was not deprived
of due process, because it received a fair and timely hearing under the circumstances. Id. at 317.
The court contrasted cases involving prejudgment-seizure statutes by stating that, in the case
before it, “the stocks were not seized or impounded” but instead remained in the third-party’s
possession. Id. at 319. It further stated that the “citation did not constitute a seizure of the stock
in question” (id.) and that “the restraining provision of section 2-1402 *** did not serve to seize
the stock from” the third party’s possession (id. at 321).
¶ 34 Hoffmann argues that Bank of Aspen is distinguishable because it did not concern section
12-1005’s damages provision. She further argues that she has not claimed that due process was
violated or that the restraining provision of section 2-1402 results in “seizures” under section 12-
1005. She maintains that, where a judgment debtor asserts a proper exemption and the judgment
creditor promptly releases the exempt property, there would be no meaningful infringement on
the judgment debtor’s interest in the property and no entitlement to damages. She argues that
this situation is different because PNC persisted in keeping the IRA frozen without justification.
¶ 35 Hoffmann argues that Bank of Aspen is also distinguishable because, in the context of a
due-process analysis, it focused on whether the citation deprived a party of physical possession
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of its asset. Hoffmann maintains that, because section 12-1005 provides damages for a “taking”
or a “seizure,” we must interpret the word “seizure” as different from a “taking,” to conform to
the rule that a statute should be interpreted such that no term is rendered meaningless or
superfluous. See Skaperdas v. Country Casualty Insurance Co., 2015 IL 117021, ¶ 15.
¶ 36 Section 12-1005 applies only if a party “takes or seizes” exempt property. 735 ILCS
5/12-1005 (West 2012). In construing a statute, our primary objective is to ascertain and give
effect to the legislature’s intent, which is best indicated by the statute’s plain language. McVey,
2015 IL 118143, ¶ 11. We give undefined terms their ordinary and popularly understood
meaning. Skaperdas, 2015 IL 117021, ¶ 15. If the statutory language is clear, we must apply it
as written, without resorting to extrinsic aids of statutory construction. State Bank of Cherry v.
CGB Enterprises, Inc., 2013 IL 113836, ¶ 56.
¶ 37 Courts look to dictionaries to give words their ordinary and popularly understood
meaning. See LeCompte v. Zoning Board of Appeals, 2011 IL App (1st) 100423, ¶ 29. This is
appropriate here, as section 12-1005 is not directed at fourth amendment rights, in contrast to the
cases on which Hoffmann relies. See People v. Meyer, 402 Ill. App. 3d 1089, 1092 (2010) (the
fourth amendment protects people against unreasonable government searches and seizures).
Webster’s Dictionary defines “take” as, in relevant part, “to get into one’s hands or into one’s
possession, power, or control by force or stratagem.” Webster’s Third New International
Dictionary 2329 (1986). Black’s Law Dictionary defines “take” as, in relevant part, “[t]o obtain
possession or control, whether legally or illegally” and “[t]o seize with authority; to confiscate or
apprehend.” Black’s Law Dictionary 1466 (7th ed. 1999). As pertinent here, Webster’s
Dictionary defines “seize” as “to take possession of.” Webster’s Third New International
Dictionary 2057 (1986). Black’s Law Dictionary similarly defines “seize” as, in relevant part,
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“[t]o forcibly take possession (of a person or property).” Black’s Law Dictionary 1363 (7th ed.
1999).
¶ 38 Hoffmann asserts that a seizure took place here. However, under the plain meaning of
that term as defined above, PNC cannot be said to have “seized” the IRA, because it did not take
possession of the IRA. Although Hoffmann argues that we must apply a broader definition of a
“seizure” because otherwise it would be equivalent to a “taking,” the dictionary definitions above
show that the plain meaning of “taking” extends to taking control of property, not just physical
possession. In other words, we can apply the plain meaning of “seizure” without rendering that
term superfluous in the context of the statute.
¶ 39 Even if, arguendo, the meaning of “seizure” is ambiguous, we agree with PNC that,
under Bank of Aspen, the citation proceeding cannot be said to have resulted in a seizure; Bank of
Aspen clearly held that a citation issued under section 2-1402’s restraining provision did not
result in the seizure of the targeted asset. Bank of Aspen, 126 Ill. 2d at 321. Rather, the citation
simply informed the third party of potential penalties if it transferred or disposed of the judgment
debtor’s property. Id. at 315-16.
¶ 40 We recognize that Hoffmann asserts that it was not the citation itself that constituted the
seizure, but rather PNC’s alleged failure to timely acknowledge the IRA’s exempt status.
Assuming that the plain meaning of “seizure” can have a reasonable-time component,
Hoffmann’s argument still fails. First, Hoffmann faults PNC for not accepting the trial court’s
“offer” to have the IRA deemed temporarily exempt pending discovery, but it is clear from
reviewing the report of proceedings that the trial court was trying to clarify PNC’s position when
it presented that scenario. See supra ¶ 6. Indeed, had the trial court believed that a temporary
exemption was required under the circumstances, it would have ordered such a course of action
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without relying on PNC to accept its “offer.” Regarding the documents demonstrating the
exempt status, although Hoffmann claims that she provided all of the relevant documents at the
initial exemption hearing, PNC claims that she provided additional material as attachments to her
later-filed reply. The common-law record, which is limited in the first place, 1 does not resolve
this issue. However, we agree with PNC that the record indicates that its decision not to further
contest the IRA’s exempt status was based at least partially on its desire not to spend additional
time and resources obtaining and going through decades of tax-related documents. See supra ¶
9. As for the timing of PNC’s responses to the exemption motion, we note that Hoffmann’s own
counsel stated at the initial hearing, “We have basically agreed to briefing schedules on both
motions,” with the last reply being due on August 26, 2014. As Hoffmann agreed to this
schedule and did not later seek to expedite the proceedings, she cannot now argue that PNC
prolonged the proceedings, as any resulting error would qualify as invited error. See Gaffney v.
Board of Trustees of the Orland Fire Protection District, 2012 IL 110012, ¶ 33 (the rationale for
the rule of invited error is that it would be manifestly unfair to grant a party relief based on an
error that he or she introduced into the proceedings).
¶ 41 For these same reasons, even if, arguendo, the IRA could be considered as having been
seized, the good-faith exception, articulated in Jakubik, 208 Ill. App. 3d at 126-27, would apply.
In Jakubik, the court noted that the purpose of section 12-1005 was punitive, as was the purpose
1
The trial court granted Hoffmann’s motion to limit the voluminous record on appeal to
documents relevant to the issue on appeal. We note that Hoffmann, as the appellant, had the
burden to provide a sufficiently complete record of the trial proceedings to support her claims of
error, and we will resolve any doubts that arise from the incompleteness of the record against
her. See Foutch v. O Bryant, 99 Ill. 2d 389, 391-92 (1984).
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of section 2-611 (Ill. Rev. Stat. 1983, ch. 100, ¶ 2-611), which provided sanctions when
attorneys failed to adequately investigate claims before bringing suit. Jakubik, 208 Ill. App. 3d
at 126. The Jakubik court therefore reasoned that the good-faith or honest-mistake defense to a
section 2-611 claim should extend to a claim for damages under section 12-1005. Id. at 127.
¶ 42 The debtor has the burden of showing that property is exempt from being applied to
satisfy a judgment. Wells Fargo Bank Minnesota, NA v. Envirobusiness, Inc., 2014 IL App (1st)
133575, ¶ 13. Here, PNC had not seen any documents regarding the IRA when the first section
12-1005 hearing took place, and at that hearing Hoffmann’s attorney agreed to a briefing
schedule that was followed by the parties. According to PNC, it used that time to review
Hoffmann’s documents as well as documents obtained from Raymond James. Further, although
PNC ultimately decided not to further challenge the IRA’s exemption, it did so not on the basis
that the documents tendered at the initial hearing conclusively proved its exempt status, but
rather on the basis that determining whether the IRA was exempt would require reviewing
decades of tax-related documents, which it was unwilling to do. As such, even if the IRA was
“seized” under section 2-1005, the good-faith exception would apply and Hoffmann would not
be entitled to damages.
¶ 43 III. CONCLUSION
¶ 44 In sum, we affirm the trial court’s denial of Hoffmann’s motion for damages under
section 12-1005, as we conclude that Hoffmann’s IRA was not “seized” under the statute. Even
if it were, the good-faith exception to the statute would apply.
¶ 45 For the foregoing reasons, we affirm the judgment of the Du Page County circuit court.
¶ 46 Affirmed.
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