Birla Precision Technologies, Ltd. v. ERI America, Inc.

Filing 35

MOTION by Plaintiff Birla Precision Technologies, Ltd. for judgment (Conditional Judgment Against Fifth Third Bank) (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Schaefers, Scott)

Download PDF
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION BIRLA PRECISION TECHNOLOGIES, INC., Plaintiff, v. ERI AMERICA, INC., Defendant. ) ) Case No. 1:17-cv-3125 ) ) Judge Elaine E. Bucklo ) Magistrate Judge M. David Weisman PLAINTIFF’S SWORN MOTION FOR ENTRY OF CONDITIONAL JUDGMENT AGAINST FIFTH THIRD BANK Plaintiff Birla Precision Technologies, Ltd. (“Birla”), by its attorneys and pursuant to Fed. R. Civ. P. 69(a), 735 ILCS §§ 5/2-1402(f)(1), 2-1402(k-3), and 12-706, requests the Court to enter a conditional judgment against Fifth Third Bank (“Fifth Third”) in the amount of $161,712.75 for its failure to respond to Birla’s 8/25/17 Citation to Discover Assets (“Citation,” attached as exhibit 1 with affidavit of service [27]). In support of this motion, Birla states as follows: RELEVANT BACKGROUND 1. On June 9, 2017, the Court granted Birla’s motion for default judgment against defendant ERI America, Inc. (“ERI”). (6/9/17 Judgment [11] (“Judgment”), exhibit 2). 2. On August 25, 2017, Birla issued the Citation, and personally served it on an authorized agent of Fifth Third. (Ex. 1). 3. Birla had reason to believe that Fifth Third held property or income belonging to ERI because another third-party citation respondent produced documents showing an ERI account at Fifth Third. (Exhibits 3, 4, account numbers redacted). 4. The Citation demanded a sworn answer and delivery of responsive documents by September 15, 2017. (Id.). 5. Fifth Third did not provide any response or documents by September 15th. 6. Accordingly, conditional judgment should be entered against Fifth Third pursuant to sections 2-1402(f)(1), 2-1402(k-3), and 12-706 of the Illinois Code of Civil Procedure (“Code”). 7. As of September 18, 2017, the amount of the Judgment which remains unsatisfied, including interest, is $161,712.75. ARGUMENT 8. Federal judgment enforcement proceedings are governed by FRCP 69 and forum state law. Rule 69(a) of provides (Fed. R. Civ. Proc. 69(a)): “(a) IN GENERAL. (1) Money Judgment; Applicable Procedure. A money judgment is enforced by a writ of execution, unless the court directs otherwise. The procedure on execution—and in proceedings supplementary to and in aid of judgment or execution—must accord with the procedure of the state where the court is located, but a federal statute governs to the extent it applies. (2) Obtaining Discovery. In aid of the judgment or execution, the judgment creditor or a successor in interest whose interest appears of record may obtain discovery from any person—including the judgment debtor—as provided in these rules or by the procedure of the state where the court is located.” 9. Section 2-1402 of the Code provides for supplementary proceedings to enforce judgments. 735 ILCS 5/2-1402. Section 2-1402(f)(1) provides the court may enter judgment against a third-party citation respondent which violates the restraining provision of a citation, in the amount of the outstanding judgment or the value of the property transferred in violation of the restraining provision, whichever is less. Id., § 2-1402(f)(1). 10. Section 2-1402(k-3) of the Code allows the court to enter judgment against a citation respondent pursuant to the Garnishment sections of the Code. 735 ILCS 5/2-1402(k-3); 735 ILCS 5/12-701 et seq. Section 12-706, in light of section 2-1402(k-3), allows the court to enter conditional judgment against a citation respondent who fails to answer the citation. 735 ILCS 5/12-706. -2- 11. Fifth Third’s failure to properly respond to the citation warrants entry of conditional judgment under the Code. WHEREFORE, Birla requests the Court to enter conditional judgment against Fifth Third Bank in the amount of $161,712.75, and awarding Birla any other appropriate relief. DATE: September 18, 2017 Respectfully submitted, Scott A. Schaefers BROTSCHUL POTTS LLC 30 N. LaSalle St., Ste. 1402 Chicago, IL 60602 Phone: (312) 268-6795 Email: BIRLA PRECISION TECHNOLOGIES, LTD., Plaintiff. By: Scott A. Schaefers, One of Its Attorneys DECLARATION I, Scott A. Schaefers, attorney for plaintiff Birla Precision Technologies, Ltd., pursuant to 28 U.S.C. § 1746(2) and subject to penalty of perjury, declare that I have personal knowledge of the foregoing statements, which are true and correct to the best of my information and belief; that the exhibits attached to this Motion are true and correct copies of the documents they are asserted to be; and that I signed this Declaration on September 18, 2017 in Chicago, Illinois. Scott A. Schaefers -3- CERTIFICATE OF SERVICE I, Scott A. Schaefers, attorney for plaintiff Birla Precision Technologies, Ltd., certify that on September 18, 2017, I served a true and correct copy of this Sworn Motion for Entry of Conditional Judgment against Fifth Third Bank (“Motion”) on the following parties by the methods indicated, by depositing copies of the Motion in postage-prepaid envelopes, addressed as follows, and depositing the sealed envelopes in a U.S. Mailbox located at 30 N. LaSalle St., Chicago, IL 60602: Fifth Third Bank c/o Legal Department 38 Fountain Square Plaza Cincinnati, OH 45263 By U.S. Certified Mail ERI America, Inc., defendant c/o James A. Marino, registered agent 5521 N. Cumberland Ave., Ste. 1109 Chicago, IL 60656 By U.S. Mail Scott A. Schaefers Date: September 18, 2017

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?