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THIRD DIVISION

September 25, 2002

PRESIDING JUSTICE SOUTH delivered the opinion of the court:

Plaintiff, Donald Schak, operated a commercial office building on 800 E. NorthwestHighway in Palatine, Illinois. Defendant, Robert Blom, rented Suite 90 on 800 E. NorthwestHighway from plaintiff. On November 23, 1994, the parties entered into an agreement wherebydefendant acknowledged and agreed to pay $11,000 over a twenty-four month period for backrents due since December 1, 1992. On October 1, 1996, the parties entered into anotheragreement in which defendant acknowledged a $56,734.78 debt and granted plaintiff a securityinterest in his business equipment.

On May 23, 1997, plaintiff filed a complaint for breach of contract against defendant. OnJune 7, 1997, Lee Michaels, the special process server, served defendant at 21235 Linden Streetin Kildeer, Illinois, the address defendant listed as his residence in the October 1, 1996,agreement. On January 27, 1998, after defendant had failed to appear and answer, the trial courtentered a judgment by default in favor of plaintiff and against defendant in the amount of$56,734.78.

Adverse Claimant, Cathy Riehs-Vlad, originally owned 21235 Linden. In March 1995,she entered into a real estate sale contract with defendant for 21235 Linden. She quit claimed herinterest in 21235 Linden into a land trust where she was the beneficiary. Defendant jointly heldthe power of direction in the trust with Riehs-Vlad via the contract and installment agreement topurchase.

On April 29, 1997, Riehs-Vlad notified defendant by certified mail that she planned todeclare him in default under the contract unless payments were made by May 10, 1997. Defendant had failed to make payments from October 1, 1996 through April 1, 1997. The 1995real estate taxes were also outstanding. In June 1997, defendant vacated the premises and executed an assignment of beneficial interest stating that he assigned any and all interest he hadin the trust to Riehs-Vlad.

On March 18, 1998, plaintiff issued a citation to discover assets to defendant at 21235Linden. Plaintiff later learned that the property at 21235 Linden that defendant had listed as hisresidence was held in a land trust, No. 1101240, by the Chicago Title and Trust Company(Chicago Title). On April 17, 1998, plaintiff issued a third party citation to discover assets toChicago Title for information regarding the land trust. On April 20, 1998, plaintiff filed anemergency motion to prohibit transfer of assets and subsequently block the pending sale of 21235Linden which was to take place on April 22, 1998. Plaintiff served Chicago Title with notice ofthis motion. On April 21, 1998, the trial court entered an order that Chicago Title direct that$85,102.17 of the sale proceeds of 21235 Linden be placed in a title indemnity escrow account atAttorneys' Title Guaranty Fund, Inc. (Attorneys' Title), which was Riehs-Vlad's closing agent for21235 Linden. On April 22, 1998, plaintiff issued a citation to discover assets to Attorneys'Title, which failed to respond. That same day, Chicago Title deeded out title to 21235 Linden,and the funds were deposited into the escrow account.

On May 19, 1998, plaintiff filed a motion for turnover of funds, which the trial courtgranted on May 27, 1998. The notice attached to the motion stated that it was an emergencymotion to prohibit transfer of assets. Attorneys' Title forwarded $58,887.01 to plaintiff's counsel. Subsequent thereto, Riehs-Vlad filed a motion to quash the turnover order based upon the factthat defendant, Blom, had no interest in the property. Defendant filed for bankruptcy on October5, 1999. On July 26, 2000, the trial court granted Riehs-Vlad's motion to quash the turnoverorder. The trial court stated that defendant had no interest in the assets turned over to plaintiff,and that a turnover order should not have been entered pursuant to the notice given by plaintiff. Plaintiff filed a motion to reconsider, which was denied. The court also stated in that order thatthe emergency notice of motion to prohibit transfer of assets that accompanied the motion forturnover of assets was an error. Riehs-Vlad also filed a motion for interest and attorney fees,which was granted. Subsequently, Riehs-Vlad filed a motion to clarify, which the trial courtdid, stating that: "(1) plaintiff failed to serve Riehs-Vlad with proper notice of the motion forhearing on the motion for a turnover order (Order of July 26, 2000); (2) defendant had no interestin the funds that were subsequently turned over to plaintiff by virtue of the turnover order (Orderof July 26, 2000); (3) the turnover order entered on May 28, 1997 was void (Order of July 26,2000); this court has the inherent authority to return these parties to their pre-May 27, 1998 status(Order of November 30, 2000); and (4) Riehs-Vlad was entitled to the return of $58,887.01(Order of September 19, 2000) as well as interest and attorney fees (Order of November 30,2000)."

Plaintiff raises five issues: (1) whether the trial court erred in vacating the May 27, 1998,turnover order; (2) whether the trial court erred in denying plaintiff's motion to reconsider itsJuly 26, 2000, order; (3) whether the trial court erred in entering a judgment in favor of theadverse claimant in its September 19, 2000, order; (4) whether the trial court erred in denyingplaintiff's motion to reconsider the November 30, 2000, order; and (5) whether the trial courterred in awarding adverse claimant attorney fees and interest.

We first consider whether the trial court erred in vacating the May 27, 1998, turnoverorder, which granted the motion for turnover.

"Supplementary proceedings.

(a) A judgment creditor, or his or her successor in interest whenthat interest is made to appear of record, is entitled to prosecutesupplementary proceedings for the purposes of examining thejudgment debtor or any other person to discover assets or incomeof the debtor not exempt from the enforcement of the judgment, adeduction order or garnishment, and of compelling the applicationof non-exempt assets or income discovered toward the payment ofthe amount due under the judgment. A supplementary proceedingshall be commenced by the service of a citation issued by the clerk.

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(c) When assets or income of the judgment debtor not exempt fromthe satisfaction of a judgment, a deduction order or garnishmentare discovered, the court may, by appropriate order or judgment:

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(3) Compel any person cited, other than thejudgment debtor, to deliver up any assets sodiscovered, to be applied in satisfaction of thejudgment, in whole or in part, when those assets areheld under such circumstances that in an action bythe judgment debtor he or she could recover them inspecie or obtain a judgment for the proceeds orvalue thereof as for conversion or embezzlement."735 ILCS 5/2-1402(a), (c) (West 1996).

Section 2-1402(a), the statute authorizing the citation action, provides a mechanism bywhich a judgment creditor may initiate supplementary proceedings to discover the assets of ajudgment debtor or third party, and apply those assets to satisfy the judgment. 735 ILCS5/2-1402(a) (West 1996); Ericksen v. Rush Presbyterian St. Luke's Medical Center, 289 Ill. App.3d 159, 166, 682 N.E.2d 79, 84 (1997), rehearing denied, appeal denied, 174 Ill. 2d 559, 686N.E.2d 1160 (1997). When the debtor has an interest in a land trust, a citation to discover assetsvalidly served on both the trustee of the land trust and the judgment debtor creates a lien in anyinterest held by the judgment debtor in that land trust. In re Nowicki, 202 B.R. 729, 737 (N.D.Ill. 1996). Although the beneficiary of a trust retains certain limited powers, the trustee of astandard land trust retains sufficient control over the beneficial interest to direct its sale ortransfer upon an order of the Court. In re Barone, 184 B.R. 747, 749 (N.D. Ill. 1995).

These proceedings may be initiated only after the circuit court enters a judgment. Ericksen, 289 Ill. App. 3d at 166, 682 N.E.2d at 84. Before a judgment creditor may proceedagainst a third party who is not the judgment debtor, the record must contain some evidence thatthe third party possesses assets of the judgment debtor. Only then does the citation court havethe jurisdiction to order that party to produce those assets to satisfy the judgment. Ericksen, 289Ill. App. 3d at 166, 682 N.E.2d at 84. If the third party possesses no assets of the judgmentdebtor, then the court has no authority to enter any judgment against the third party in asupplementary proceeding. Ericksen, 289 Ill. App. 3d at 167, 682 N.E.2d at 84.

Therefore, the only relevant inquiries in supplementary proceedings are (1) whether thejudgment debtor is in possession of assets that should be applied to satisfy the judgment or (2)whether a third party is holding assets of the judgment debtor that should be applied to satisfy thejudgment. Pyshos v. Heart-Land Development Co., 258 Ill. App. 3d 618, 623, 630 N.E.2d 1054,1057 (1994). The provisions of section 2-1402 are to be liberally construed, and the burden lieswith the petitioner to show that the citation respondent possesses assets belonging to thejudgment creditor. Mid-American Elevator Co. v. Norcon, Inc., 287 Ill. App. 3d 582, 587, 679N.E.2d 387, 390 (1996).

In order to proceed against a party who is not the judgment debtor in a supplementaryproceeding, the record must contain some evidence showing that the third party possessed assetsof the judgment debtor. Pyshos, 258 Ill. App. 3d at 623, 630 N.E.2d at 1057. Nothing in theCode authorizes the entry of a judgment at a supplementary proceeding against a third party whodoes not possess assets of the judgment debtor. Pyshos, 258 Ill. App. 3d at 623, 630 N.E.2d at1057. A review of the record indicates that Riehs-Vlad did not possess assets of defendant. Plaintiff initiated supplementary proceedings in March of 1998. Defendant assigned his interestin the land trust to Riehs-Vlad in June 1997. We find that the lower court properly vacated itsMay 27, 1998, turnover order as plaintiff failed to demonstrate that the trust assets belonged todefendant.

The next issue that we consider is whether the trial court erred in denying plaintiff'smotion to reconsider its July 26, 2000 order, which granted the motion to quash in favor ofRiehs-Vlad. Section 1402 allows a creditor to perfect its lien in property of a judgment debtoragainst which the creditor may seek satisfaction of its judgment by serving a citation to discoverassets on both the trustee of the land trust and the judgment debtor. Nowicki, 202 B.R. at 737. Whether or not plaintiff's service of the citation was proper is irrelevant inasmuch as Riehs-Vladdid not possess assets of defendant because defendant assigned any interest he had in the landtrust to Riehs-Vlad in June of 1997. The trial court properly denied plaintiff's motion toreconsider.

The next issue is whether the trial court erred in entering a judgment in favor of theRiehs-Vlad and against plaintiff in its September 19, 2000 order. That order corrected the July26, 2000, order to confirm that the motion for turnover was not brought as an emergency and thatRiehs-Vlad's motion to quash was upheld, awarding her a judgment against Schak.

The trial court stated in its November 30, 2000 order:

"Plaintiff wrongfully obtained control of these funds by virtue ofthis court's order of May 27, 1998. This court has inherentauthority to return these parties to their pre-order status. Since thisstatus cannot be accomplished by simply vacating the May 27thorder, the judgment that was apparently entered against theplaintiff on September 19, 2000 is the best mechanism to make theparties whole."

We concur. A judgment or order is void where it is entered by a court or agency which lackspersonal jurisdiction, subject-matter jurisdiction, or the inherent power to enter the particularjudgment or order, or where the order is procured by fraud. Siddens v. Industrial Comm'n, 304Ill. App. 3d 506, 511, 711 N.E.2d 18, 21 (1999). An order is also void where the court exceededits authority. Wilder v. Finnegan, 267 Ill. App. 3d 422, 425, 642 N.E.2d 496, 499 (1994). Avoid order is a complete nullity from its inception and has no legal effect and may be attacked,either directly or collaterally, at any time or in any court. Siddens, 304 Ill. App. 3d at 511, 711N.E.2d at 21-22. Courts have a duty to vacate and expunge void orders from court records andthus may sua sponte declare an order void. Siddens, 304 Ill. App. 3d at 511, 711 N.E.2d at 22. We find, therefore, that the May 27, 1998, order was void and that Riehs-Vlad was entitled torecover the funds ordered turned over on that date. The court's order returning the $58,887.01 toRiehs-Vlad was proper as was its order denying the motion for reconsideration of that order.

The last issue that we consider is whether the trial court erred in awarding the adverseclaimant, Riehs-Vlad, attorney fees and interest in its February 27, 2001, order.

In its February 27, 2001, order the trial court awarded Riehs-Vlad interest on the$58,887.02 that was withheld from her because of the May 27, 1998, turnover order as well asthe attorney fees necessary to regain the $58,887.02.

"Supplementary proceedings.

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(g) If it appears that any property, chose in action, credit or effectdiscovered, or any interest therein, is claimed by any person, thecourt shall, as in garnishment proceedings, permit or require theclaimant to appear and maintain his or her right. The rights of theperson cited and the rights of any adverse claimant shall beasserted and determined pursuant to the law relating togarnishment proceedings." 735 ILCS 5/2-1402(g) (West 1996).

In a wrongful garnishment action, attorney fees incurred in establishing the right to the funds inquestion are recoverable as damages. Neri v. J.I. Case Co., 207 Ill. App. 3d 409, 414, 566N.E.2d 16, 19 (1991). The adverse claimant in the instant action is not only entitled to attorneyfees but also to the interest incurred on the $58,887.02 during the period of its retention. In FoleyBrokerage Co. v. Feldman Brothers Comm'n, 330 Ill. App. 372, 375, 71 N.E.2d 354, 355 (1947),the court held that plaintiff was entitled to both attorney fees incurred in pursuit of the wrongfullyobtained funds as well as interest for the period that the funds were retained.

For the foregoing reasons, the judgment of the lower court is affirmed.

Affirmed.

WOLFSON and HALL, JJ., concur.