Q. How does a judgment debtor fight a “confession judgment”?
The first step to combatting a “confession judgment” is to eliminate it. Under Illinois law, a court cannot enter a valid money judgment without having jurisdiction over the debtor. We usually try to attack confession judgments as void for lack of personal jurisdiction.
In most cases, a court obtains jurisdiction when a Sheriff serves a summons and complaint upon the defendant. However, a confession-of-judgment clause bends the rules by authorizing the appointment of a lawyer to appear for the debtor in an action for an amount owed due, to waive personal jurisdiction and service, and to consent to a judgment against the debtor. This is called a warrant of attorney.
Q. How does a judgment debtor attack personal jurisdiction?
When representing confession judgment debtors, we first determine whether the creditor made one of several common mistakes:
a) Did the lender forget to include a confession-of-judgment?
A “confession-of-judgment” clause may authorize the confession of judgment, but the process requires an additional step: Once the creditor files suit, an appointed attorney must actually appear, waive personal jurisdiction and service, and confess a judgment against the debtor. This “attorney-in-fact” typically does this by including signing a document entitled “confession” or “confession-of-judgment,” which the complaint attaches.
If the creditor fails to submit a signed “confession-of-judgment,” we attack the judgment as void for lack of personal jurisdiction, arguing that no appearance means no jurisdiction.
b) Can we determine the total amount of the indebtedness from the face of the document containing the warrant of attorney?
A judgment by confession must be for a fixed and definite sum, and the judge must be able to calculate the total amount due without looking beyond the face of the document. If the “confession-of-judgment” clause authorizes judgment for an uncertain amount that requires evidence, it is void for uncertainty.
We closely examine the document containing the warrant of attorney. If the Court cannot calculate the debtor’s entire liability from the face of that document, we attack the confession judgment as void.
