Fox Valley Construction Workers Fringe Benefit Funds et al v. Concrete By Fleming, Inc.

Filing 23

MOTION by Plaintiffs Fox Valley Construction Workers Fringe Benefit Funds, Michael T Kucharski for judgment (Conditional Judgment Against Regent Title Insurance Agency, LLC) (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Ryan, Patrick)

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION ) ) ) ) Plaintiffs, ) ) vs. ) ) CONCRETE BY FLEMING, INC., ) an Illinois corporation, ) ) Defendant, ) ) and ) ) REGENT TITLE INSURANCE AGENCY, ) LLC, ) ) Citation Respondent. ) FOX VALLEY CONSTRUCTION WORKERS FRINGE BENEFIT FUNDS, et al.,

CIVIL ACTION NO. 08 C 4565 JUDGE WAYNE R. ANDERSEN

MOTION FOR CONDITIONAL JUDGMENT AGAINST REGENT TITLE INSURANCE AGENCY, LLC Plaintiffs, Fox Valley Construction Workers Fringe Benefit Funds, et al. ("Plaintiffs" or "Funds"), by and through their attorneys, hereby move for entry of a conditional judgment pursuant to Rule 69(a) of the Federal Rules of Civil Procedure, against Third-Party Citation Respondent, Regent Title Insurance Agency, LLC ("Regent"), for its failure to answer or otherwise comply with the Citation to Discover Assets served upon it on November 2, 2009. In support of their Motion, Plaintiffs state as follows: 1. On October 24, 2008, the Court entered judgment against Defendant, Concrete by

Fleming, Inc., in the total amount of $12,969.47. Plaintiffs have received payments totaling $3,000.00 from Defendant, leaving a principal balance of $9,969.47 due on the judgment. In

addition, Plaintiffs are entitled to recover post-judgment interest of $213.57 (calculated through November 30, 2009), for a total of $10,182.84. 2. In an effort to collect the judgment balance, Plaintiffs served a Third-Party Citation

to Discover Assets on the Registered Agent for Regent on November 2, 2009. A true and correct copy of the Third Party Citation to Discover Assets and Affidavit of Service are attached hereto as Exhibit A. 3. The Third Party Citation served on Regent required it to answer the Citation by

December 8, 2009. On December 15, 2009, after receiving no response to the Citation from Regent, Plaintiffs' counsel sent a letter to the Registered Agent for Regent advising that Plaintiffs would seek to enforce the Citation if an answer was not received within fourteen days of the date of the letter. A true and correct copy of Plaintiffs' counsel's December 15, 2009 letter is attached hereto as Exhibit B. 4. Pursuant to Rule 69(a) of the Federal Rules of Civil Procedure, federal courts adopt

the practice and procedure of the state in which the district court sits in preceding supplementary to and in aid of a judgment. 5. Under Illinois law, the Court may enter a conditional judgment against a Third Party

Citation Respondent for the balance due on a judgment if the respondent fails to appear and answer, and further issue a summons to the respondent commanding the respondent to appear and show cause as to why the judgment should not be made final. 735 ILCS 5/2-1402(c)(4); 735 ILCS 5/2706 (attached as Exhibits C and D, respectively). As Citation Respondent, Regent Title Insurance Agency, LLC, has failed to answer or otherwise respond to the Third Party Citation served upon it, despite subsequent notice from Plaintiffs' counsel, Plaintiffs respectfully request that this Court enter a Conditional Judgment in favor of the Plaintiffs and against Regent Title Insurance Agency, LLC, in the total amount of -2-

$10,182.84, and issue a summons ordering Regent Title Insurance Agency, LLC, to appear on a date certain to show cause as to why the judgment against it should not be made final.

Respectfully submitted,

/s/ Patrick N. Ryan

Patrick N. Ryan Attorney for Plaintiffs BAUM SIGMAN AUERBACH & NEUMAN, LTD. 200 West Adams Street, Suite 2200 Chicago, IL 60606-5231 Telephone: [phone] Facsimile: [phone] E-Mail: [e-mail]

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CERTIFICATE OF SERVICE The undersigned, an attorney of record, hereby certifies that he electronically filed the foregoing document, Motion for Conditional Judgment Against Regent Title Insurance Agency, LLC, with the Clerk of Court using the CM/ECF system, and further certifies that I have mailed the above-referenced document by United States Mail to the following non-CM/ECF participants on or before the hour of 5:00 p.m. this 10th day of February 2010: Mr. Tim Fleming Concrete by Fleming P.O. Box 298 Minooka, IL 60447 Regent Title Insurance Agency, LLC c/o Michael S. Roberts, Registered Agent 55 W. Monroe Street, Suite 1700 Chicago, IL 60603-5125

/s/ Patrick N. Ryan

Patrick N. Ryan Attorney for Plaintiffs BAUM SIGMAN AUERBACH & NEUMAN, LTD. 200 West Adams Street, Suite 2200 Chicago, IL 60606-5231 Bar No.: 6278364 Telephone: [phone] Facsimile: [phone] E-Mail: [e-mail]
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