Birla Precision Technologies, Ltd. v. ERI America, Inc.
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)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
BIRLA PRECISION TECHNOLOGIES, INC., Plaintiff,
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 ). In support of this motion, Birla states as follows:
On June 9, 2017, the Court granted Birla’s motion for default judgment against
defendant ERI America, Inc. (“ERI”). (6/9/17 Judgment  (“Judgment”), exhibit 2).
On August 25, 2017, Birla issued the Citation, and personally served it on an
authorized agent of Fifth Third. (Ex. 1).
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).
The Citation demanded a sworn answer and delivery of responsive documents by
September 15, 2017. (Id.).
Fifth Third did not provide any response or documents by September 15th.
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”).
As of September 18, 2017, the amount of the Judgment which remains unsatisfied,
including interest, is $161,712.75.
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.”
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).
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.
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
Scott A. Schaefers
BROTSCHUL POTTS LLC
30 N. LaSalle St., Ste. 1402
Chicago, IL 60602
Phone: (312) 268-6795
BIRLA PRECISION TECHNOLOGIES, LTD., Plaintiff.
Scott A. Schaefers, One of Its Attorneys
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
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
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