Tuesday, April 20, 2010

Is a criminal bond subject to garnishment?

I am a member of the Illinois Creditors Bar Association. One of the benefits of membership in that association is the email list serve where questions are asked and answered back and forth all day long.

The question of whether a creditor can garnish a criminal bond came up last week. Several of my learned colleagues responded with their opinions. (Let me know if you would like the contact information of the lawyers who gave these opinions; I did not know if it was proper to name them in this post.)

The short answer, as usual, is that it depends. First, let's get our terminology straight. Garnishment is a specific statutory process governed by 735 ILCS 5/12-701, et seq. The answer to whether a criminal bond can be garnished is actually "No."

One response on the email list directed us to the case of A-1 Lithoplate, Inc., v. AFS Publishing Co., 66 Ill.App.3d 560 (1st Dist. 1998). In that case, the court held that garnishment of bail bond funds held by a court clerk was not permissible. The court reasoned that bail bond money held by a circuit court clerk, like any money held by any judicial officer in his official capacity, is in the custody of the law. The clerk who holds that money retains it under the authority of the court, and keeps the money solely to be disposed of as directed by the statute or court order.

So, you can't 'garnish' the funds, but another response indicated that it may be possible to file a third-party citation against the circuit clerk.

The distinction is that a garnishment requires that the property held by a third party be available to the debtor at the time of service of the garnishment, while a citation may place a lien upon property that may become due the debtor at a later time.

Because the bond is not available to the debtor at the time of service of the garnishment summons, the clerks would have to answer that it held no funds on behalf of the debtor. On the other hand, the citation becomes a continuing lien which can be extended until the conclusion of the criminal case. In that case, if money did become available to the debtor after paying his court fines, etc., the judgment creditor would still have a lien on the remaining funds.

It is also likely that the defendant's criminal attorney would try to assert his lien on the funds. It is then possible that it would turn into a question of priority, if the criminal attorney had perfected his lien pursuant to statute.

Let me know if anyone tries this.

1 comment:

Carol said...

I agree with you. Criminal bond is many times a subject to garnishment. I too had recently seen the attorneys defensing on the case of garnishment.
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