Opinion
No. 07 C 1238.
August 8, 2007
TRUSTEES OF THE SUBURBAN TEAMSTERS OF NORTHERN ILLINOIS WELFARE AND PENSION FUNDS, John J. Toomey, ARNOLD AND KADJAN, Chicago, IL.
MOTION FOR JUDGMENT IN SUM CERTAIN
NOW COMES the Plaintiff, TRUSTEES OF THE SUBURBAN TEAMSTERS OF NORTHERN ILLINOIS WELFARE AND PENSION FUND, by and through its attorney, JOHN J. TOOMEY, ARNOLD AND KADJAN, and pursuant to FRCP 55 move for entry of a default judgment in sum certain as stated in this Complaint and the supporting Affidavits attached hereto. In support of its Motion, Plaintiffs state as follows:
1. Suit was filed on March 5, 2007 for collection of delinquent contributions plus attorneys' fees, costs and interest under 29 U.S.C. 1132(g)(2).
2. Service upon PREFERRED PAVING CONSTRUCTION COMPANY, an Illinois corporation was made on the Defendant on March 12, 2007, and a copy of the proof of service was filed with the court on March 20, 2007.
3. On April 5, 2007, JOHN WILLIAMSON, Individually and as President of Preferred Paving Construction Company entered into a Pension Fund installment note for $3,430.04. Installment payments have made through June 15, 2007. The July 15, 2007 installment payment is in default. There remains a balance due the Pension Fund of $2,442.02.
4. On April 5, 2007, JOHN WILLIAMSON, Individually and as President of Preferred Paving Construction Company entered into a Welfare Fund installment note for $5,085.0. Installment payments have been made through June 15, 2007. The July 15, 2007 installment payment is in default. There remains a balance due the Welfare Fund of $3,821.00.
5. The Defendant is now in default as to the Complaint and as supported by the attached Affidavits the sums due are:323.60
$2,442.02 Pension installment note $3,821.00 Welfare installment note $925.00 Attorneys fees $ Court costs $7,511.62 WHEREFORE, Plaintiff prays for the entry of judgment against Defendant, PREFERRED PAVING CONSTRUCTION COMPANY, an Illinois corporation and in favor of Plaintiffs, TRUSTEES OF THE SUBURBAN TEAMSTERS OF NORTHERN ILLINOIS WELFARE AND PENSION FUNDS in the amount of $7,511.62.AFFIDAVIT IN SUPPORT OF ATTORNEYS' FEES
NOW COMES the undersigned, JOHN J. TOOMEY, upon being first duly sworn, deposes and states as follows:
1. The undersigned is counsel of record in Case No. 07 C 1238.
2. Affiant is an attorney licensed to practice law in the State of Illinois since 1978. Affiant is admitted to the trial Bar of the Northern District of Illinois, the Central District of Illinois and the Seventh, Eighth, Second, Eleventh Circuit Courts of Appeal, U. S. Tax Court and the United States Supreme Court.
3. The time spent in the case are as follows, were reasonably necessary in the prosecution of the case, and no paralegals were used:
March 5, 2007 Open file; draft complaint and summons and file with court 2 hours March 20, 2007 Return of service filed with the court 5 hours August 7, 2007 Draft Motion for Judgment in Sum Certain 1.5 hour Court appearance on Motion for Judgment in Sum Certain 1.0 hour 4. The costs expended in prosecuting the case are: Filing fee $350.00 Service of process Argus Agency $82.80 Total $432.80 5. Reasonable value of such services is One Hundred Eighty Five Dollars per hour: $185.00 × 5 hours $925.00 6. The total in fees and costs expended are: Attorneys' fees $925.00 Costs $432.80 Total $1,357.80 FURTHER AFFIANT SAYETH NOT.AFFIDAVIT OF OLGA KANE
I, Olga Kane, upon being first duly sworn, deposes and states as follows:
1. I have been employed as a bookkeeper by the law firm of Arnold and Kadjan, counsel to Plaintiffs, for over ten years.
2. One of my duties is to monitor all delinquent contractors' payments and other charges on installment note programs.
3. This process includes receiving and accounting for all payments made thereon and computing a running tally of the remaining balances for each contractor.
4. Attached hereto as Exhibit A is a copy of the Pension Installment note entered into by John Williamson, President of Preferred Paving Construction Company and John Williamson, Individually for benefits and other charges admitted by him to be owed.
5. Attached hereto as Exhibit B is a copy of the Welfare Installment note entered into by John Williamson, President of Preferred Paving Construction Company and John Williamson, Individually for benefits and other charges admitted by him to be owed.
6. The current balance owing on the defaulted Pension Fund Installment Note is $2,442.02. See ledger attached as Exhibit "C".
7. The current balance owing on the defaulted Welfare Fund Installment Note is $3,821.00. See ledger attached as Exhibit "D".
8. The total due on both installments notes is $6,263.02.
FURTHER AFFIANT SAYETH NOT.
EXHIBIT A INSTALLMENT NOTE-PENSION
$3,430.04 principal and interest April 5, 2007 For Value Received, the undersigned promises to pay to the order of SUBURBAN TEAMSTERS OF NORTHERN ILLINOIS PENSION FUND the principal sum of Three Thousand Two Hundred Eighty Eight Dollars and 24/100 ($3,288.24) Dollars. The remaining unpaid principal shall bear interest at the rate of 10% per annum over the life of the note.Employer shall make a down payment of $500.00 on April 15, 2007,
Employer shall pay on the 15th day of May, 2007 , the sum of Two Hundred Forty Four Dollars and 17/100 Dollars ($244.17) ; on the 15th day of each month thereafter for ten consecutive months the sum of Two Hundred Forty Four Dollars and 17/100 ($244.17) Dollars, and a final payment of Two Hundred Forty Four Dollars and 17/100 ($244.17) Dollars on the 15th day of April, 2008 .
All payments on account of the indebtedness represented by this Note shall be applied first to accrued and unpaid interest and the remainder to principal. Any installments of principal not paid when due shall bear interest after maturity at the rate of 18 per cent per annum. Payments of both principal and interest shall be made at ARNOLD AND KADJAN, 19 WEST JACKSON BOULEVARD, CHICAGO, IL 60604-3958 or such other place as the legal holder hereof may from time to time in writing appoint.
EMPLOYER SHALL REMAIN CURRENT IN ITS PRESENT FUND CONTRIBUTIONS COMING DUE DURING THE TERM OF THIS NOTE . Failure to make timely monthly contribution payments and reports shall be considered a default and a basis for acceleration of the debt causing the remaining unpaid Note balance to become immediately due and payable in addition to such sums owed on the current delinquencies.
The undersigned hereby authorizes, irrevocably, any attorney of any court of record to appear for the undersigned in such court, in term time or vacation, at any time after default in the payment of any installment of the principal hereof, and confess judgment without process in favor of the payee or holder of this Note for such amount as may appear to been paid thereon, together with reasonable costs of collection including reasonable attorney's fees, and to waive and release all errors which may intervene in any such proceedings, and consent to immediate execution upon such judgment, hereby ratifying and confirming all that said attorney may do by virtue hereof.
If this Note is signed by more than one person or entity, the obligations and authorizations hereunder shall be joint and several.
All parties hereto severally waive presentment for payment, notice of dishonor and protest. PREFERRED PAVING CONSTRUCTION COMPANY, an Illinois corporation For contributions due for the period April, 2006 through September, 2006 By: John Williamson, President John Williamson, Individually
_________________________________ ____________________________________ The maker of this Note acknowledges the above indebtedness represents fringe benefit contributions and other costs and charges due and owing pursuant to applicable provisions of the Employee Retirement Income and Security Act, 29 U.S.C. 1145 and is given in settlement of the lawsuit filed in Case No. 07 C 1238 in the Federal District Court for the Northern District of Illinois.EXHIBIT B INSTALLMENT NOTE-WELFARE
$5,085.20 principal and interest April 5, 2007 For Value Received, the undersigned promises to pay to the order of SUBURBAN TEAMSTERS OF NORTHERN ILLINOIS WELFARE FUND the principal sum of Four Thousand Eight Hundred Forty Six Dollars and 22/100 ($4,846.22) Dollars. The remaining unpaid principal shall bear interest at the rate of 10% per annum over the life of the note.Employer shall make a down payment of $500.00 on April 15, 2007,
Employer shall pay on the 15th day of May, 2007 , the sum of Three Hundred Eighty Two Dollars and 10/100 Dollars ($382.10) ; on the 15th day of each month thereafter for ten consecutive months the sum of Three Hundred Eighty Two Dollars and 10/100 ($382.10) Dollars, and a final payment of Three Hundred Eighty Two Dollars and 10/100 ($382.10) Dollars on the 15th day of April, 2008 .
All payments on account of the indebtedness represented by this Note shall be applied first to accrued and unpaid interest and the remainder to principal. Any installments of principal not paid when due shall bear interest after maturity at the rate of 18 per cent per annum. Payments of both principal and interest shall be made at ARNOLD AND KADJAN, 19 WEST JACKSON BOULEVARD, CHICAGO, IL 60604-3958 or such other place as the legal holder hereof may from time to time in writing appoint.
EMPLOYER SHALL REMAIN CURRENT IN ITS PRESENT FUND CONTRIBUTIONS COMING DUE DURING THE TERM OF THIS NOTE . Failure to make timely monthly contribution payments and reports shall be considered a default and a basis for acceleration of the debt causing the remaining unpaid Note balance to become immediately due and payable in addition to such sums owed on the current delinquencies.
The undersigned hereby authorizes, irrevocably, any attorney of any court of record to appear for the undersigned in such court, in term time or vacation, at any time after default in the payment of any installment of the principal hereof, and confess judgment without process in favor of the payee or holder of this Note for such amount as may appear to been paid thereon, together with reasonable costs of collection including reasonable attorney's fees, and to waive and release all errors which may intervene in any such proceedings, and consent to immediate execution upon such judgment, hereby ratifying and confirming all that said attorney may do by virtue hereof.
If this Note is signed by more than one person or entity, the obligations and authorizations hereunder shall be joint and several.
All parties hereto severally waive presentment for payment, notice of dishonor and protest. PREFERRED PAVING CONSTRUCTION COMPANY, an Illinois corporation For contributions due for the period April, 2006 through September, 2006 By: John Williamson, President John Williamson, Individually
________________________________ ___________________________________ The maker of this Note acknowledges the above indebtedness represents fringe benefit contributions and other costs and charges due and owing pursuant to applicable provisions of the Employee Retirement Income and Security Act, 29 U.S.C. 1145 and is given in settlement of the lawsuit filed in Case No. 07 C 1238 in the Federal District Court for the Northern District of Illinois.EXHIBIT C
DUE DATE AMT. DUE DATE REC. AMT REC'D CHECK # BALANCE 4/12/2007 $500.00 #1156 $2,930.36 Preferred Paving Copnstructor 6010-0338 Suburban Teamsters 1205 Wisconsin Street Pension Joliet, Illinois 60435 JJT (815) 723-6621 $3,430.04 $3,430.04 4/12/2007 $500.00 05/15/07 $244.17 6/26/2007 $244.17 #1190 $2,686.19 06/15/07 $244.17 6/26/2007 $244.17 #1189 $2,442.02 07/15/07 $244.17 $2,197.85 06/15/07 $244.17 $1,953.68 09/15/07 $244.17 $1,709.51 10/15/07 $244.17 $1,465.34 11/15/07 $244.17 $1,221.17 12/15/07 $244.17 $977.00 01/15/08 $244.17 $732.83 02/15/08 $244.17 $488.66 03/15/08 $244.17 $244.49 04/15/08 $244.17 $0.00EXHIBIT D
DUE DATE AMT. DUE DATE REC. AMT REC'D CHECK # BALANCE 4/12/2007 $500.00 #1156 $4,585.20 Preferred Paving Copnstructor 6010-0338 Suburban Teamsters 1205 Wisconsin Street Welfare Joliet, Illinois 60435 JJT (815) 723-6621 $5,085.20 $5,085.20 4/12/2007 $500.00 05/15/07 $382.10 5/29/2007 $382.10 #1164 $4,203.10 06/15/07 $382.10 6/26/2007 $382.10 #1188 $3,821.00 07/15/07 $382.10 $3,438.90 06/15/07 $382.10 $3,056.80 09/15/07 $382.10 $2,674.70 10/15/07 $382.10 $2,292.60 11/15/07 $382.10 $1,910.50 12/15/07 $382.10 $1,528.40 01/15/08 $382.10 $1,146.30 02/15/08 $382.10 $764.20 03/15/08 $382.10 $382.10 04/15/08 $382.10 $0.00ORDER OF JUDGMENT
This matter coming to be heard upon Plaintiff's Motion for Judgment in a sum certain and the court being fully advised in the premises,IT IS HEREBY ORDERED AS FOLLOWS:
That judgment is entered in favor of the Plaintiff TRUSTEES OF THE SUBURBAN TEAMSTERS OF NORTHERN ILLINOIS WELFARE AND PENSION FUNDS and against the Defendant, PREFERRED PAVING CONSTRUCTION COMPANY, an Illinois corporation in the amount of $7,511.62.