by Plaintiff, the other check has never been produced. Generally, when a deposition is in conflict
with an affidavit, “the affidavit is to be disregarded unless it is demonstrable that the statement in
the deposition was mistaken.” Amadio v. Ford Motor Co., 238 F.3d 919, 926 (7th Cir. 2001)
(citation omitted).

Moreover, Kaminski’s affidavit, which the Estate does not even rely on in support of its
double-counting theory, fails to rebut Defendant’s deposition testimony because the affidavit
does not establish Kaminski has personal knowledge of this transaction. See Markel v. Bd. of
Regents, 276 F.3d 906, 912 (7th Cir. 2002) (explaining that affidavits must demonstrate how the
affiant is competent to testify to the matters at issue).

The Estate further argues that $11,000.00 of the funds identified by Plaintiff were actually
rent payments made by the tenant of the property and collected by Defendant on behalf of the
Estate. Specifically, the Estate contends that check nos. 3132 and 0595, which were drawn on
separate accounts and are attached as part of Plaintiff's Exhibits 9 and 10, respectively, were
actually rent payments made by the tenant of the property and collected by Defendant on behalf
of the Estate.

In support of this contention, the Estate relies on both Defendant’s and Kaminski’s
affidavits. However, as noted above, Defendant’s affidavit is inadmissible; and Kaminski’s
affidavit does not demonstrate that she had personal knowledge of these alleged rental payments.
Furthermore, the Estate has failed to provide any documentation from the alleged lessor
demonstrating that these payments were made for a rental transaction. Finally, the Estate’s

theory is illogical; no explanation has been provided as to why the alleged lessor paid Defendant



Second, Defendant and his wife issued two checks out of their joint account, totaling
$44,000.00, to Joseph Battaglia Realty. This amount includes check number 3207 in the amount
of $40,000.00.

Finally, Defendant’s wife issued three checks, in a total amount of $10,600.00, to J oseph
Battaglia Realty. These checks were signed by Defendant, who had access to the account used to
issue these three checks.

The Estate does not contest that it owes Plaintiff some money but, rather, argues that it
only owes $17,600.00. According to the Estate, Plaintiff has double counted $40,000.00 as part
of the $50,000.00 loan from Defendant and part of the $44,000.00 in checks Defendant and his
wife issued to Joseph Battaglia Realty. Specifically, the Estate argues that check number 3207
constitutes partial payment of the $50,000.00 loan made by Defendant to the Estate and not, as
Plaintiff argues, part of the $44,000.00 Defendant and his wife advanced to Joseph Battaglia
Realty,

In support of this proposition, Defendant has submitted an affidavit which was not
notarized or made subjecting Defendant to the penalty of perjury and, thus, will not be
considered. See, e.g., 28 U.S.C. § 1746; DeBruyne v. Equitable Life Ins, Co., 920 F.2d 457, 471
(7th Cir. 1990).

Defendant also relies on the affidavit of his sister and co-executor for the Estate,
Kaminski, in support of this double-counting proposition. However, Defendant testified during a
deposition that the $50,000.00 loan was comprised of a $42,000.00 check and a $7,000.00 check,
both drawn on a SunAmerica account. A check for $7,142.86, consistent with Defendant’s

testimony, was produced and included as Plaintiff's Reply Exhibit A; however, despite requests


instead of Joseph Battaglia or the Estate or as to why the alleged rent payments were drawn on
two separate accounts.

As to the $10,600.00 paid out of the account of Defendant’s wife to Joseph Battaglia
Realty, Plaintiff has failed to demonstrate that Defendant actually possessed these funds.
Defendant’s signature on this account demonstrates that Defendant had authority to convey his
wife’s funds, but it does not show that these funds actually belonged to Defendant.

Based upon this evidence, the Estate has failed to meet its burden, by providing sufficient
documentation rebutting Plaintiffs evidence, that Plaintiff double-counted $40,000.00 or that
Plaintiff wrongly identified $11,000.00 as funds allegedly paid by lessors to the Estate.

However, Plaintiff has failed to satisfy its burden of proof demonstrating that it is entitled to the
$10,600.00 of funds paid out of the account of Defendant’s wife to Joseph Battaglia Realty.
Therefore, the Estate is in possession of $108,000.00 that Plaintiff may recover.

The Estate also seeks a $50,000.00 setoff against Defendant for a loan allegedly made by
Joseph Battaglia to Defendant. Illinois recognizes the common law right of setoff, provided that
valid and enforceable offsetting obligations are held in the same capacity by the respective
parties. In re Doctors Hosp. of Hyde Park, Inc., 337 F.3d 951, 955 (7th Cir. 2003). However,
there has been no showing by the Estate that it has diligently pursued repayment of this loan from

Defendant. Accordingly, as a matter of equity, the requested setoff is denied.



Minute Order Form (06/97)

United States District Court, Northern District of Mlinois

Name of Assigned Judge Sitting Judge if Other
or Magistrate Judge John W. Darrah than Assigned Judge
CASE NUMBER 03 C 604 DATE 71712004
CASE Birdsong vs. Battaglia
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.}
DOCKET ENTRY:
qd) i Filed motion of [ use listing in “Motion” box above.]
(2) im) Brief in support of motion due _
(3) im Answer brief to motion due. . Reply to answer brief due.
(4) a Ruling/Hearing on set for at
(5) im Status hearing[held/continued to] [set for/re-set for] on set for at
(6) Oo Pretrial conference[held/continued to] [set for/re-set for] on set for at .
(7) im Trial[set for/re-set for] on at
(8) Oo (Benclh/Jury trial] [Hearing] held/continued to at
(9) QO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) CLocalRule 41.1 CIFRCP41(a)(1) CM FRCP41(a)(2).

qo) wf [Other docket entry] Status hearing held and continued to 8/31/04 at 9:00 a.m. For the reasons

stated in the attached memorandum opinion and order, plaintiffs motion for turnover order is granted in

part and denied in part. The estate is ordered to pay plaintiff, $108,000.00. Enter Memorandum Opinion

and Order.
dl) ff {For further detail see order attached to the original minute order.]

No notices required.

Mail AO 450 form.

X__ | No notices required, advised in open court,
Notices mailed by judge’s staff.
Notified counsel by telephone.

Docketing to mail notices.

Copy to judge/magistrate judge.

MF

number of notices

WL 8 2004
jay docketed

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comtoom Le Wd Lo WAC 4002 sate maihpoice
deputy’s aa

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mae L =F hre/time received in

central Clerk’s Office nailing deputy iniials



CONCLUSION

For the foregoing reasons, the Plaintiffs Motion for Turnover Order is granted in part and

denied in part. The Estate is ordered to pay Plaintiff $108,000.00. de
Dated: 4 7 ZOO f Vl

JOHN W. DARRAH
Unitéd States District Judge



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
BIRDSONG CORPORATION, d/b/a )
BIRDSONG PEANUTS, ) ROCKETED
Plaintiff, } JUL 0 8 2004
v. ; No: 03 C 604
AUGUST BATTAGLIA, ‘ Judge John W. Darrah
Defendant. )

MEMORANDUM OPINION AND ORDER

Plaintiff and Judgment Creditor, Birdsong Corporation, filed suit against Defendant and
Judgment Debtor, August Battaglia, seeking to enforce a previously entered judgment, Judgment
was entered against Defendant and in favor of Plaintiff. Presently before the Court is Plaintiff's
Motion for Tumover Order against the Citation Respondent, Margaret Kaminski, Co-Executor
and Co-Trustee for the Estate of Joseph L. Battaglia (“the Estate”). Joseph Battaglia was the
father of Defendant. For the following reasons, that motjon is granted in part and denied in part.

ANALYSIS

Federal Rule of Civil Procedure 69(a) provides that supplementary proceedings to enforce
a judgment are governed by both the substantive and procedural law of the state in which the
proceedings are held. Under 735 ILCS 5/2-1402(c)(3), a court may require any person cited to
deliver assets to satisfy a judgment in whole or in part “when those assets are held under such
circumstances that in an action by the judgment debtor he or she could recover them in specie or
obtain a judgment for the proceeds.” The judgment creditor has the burden “to show that the

citation respondent possesses assets belonging to the judgment creditor.” Mid-Am.



Elevator Co. v. Norcon, Inc., 679 N.E.2d 387, 390 (Ill. App. Ct. 1996). A party seeking a setoff,
which allows parties to apply mutual debts against each other, has the burden of proving the right
exists. In re Clark Retail Enters., Inc., 308 B.R. 869, 895 (Bankr. N.D. Ill. 2004). Whether a
setoff should be granted is an equitable determination for a court to decide. In re Clark Retail
Enters., Inc., 308 B.R. at 895.

A default judgment was entered in favor of Plaintiff and against Defendant in the amount
of $140,539.05 plus post-judgment interest. Thereafter, a Citation Notice and a Citation to
Discover Assets of August Battaglia was issued to Kaminski. To date, the full amount of the
judgment remains unsatisfied; and Plaintiff contends that the Estate possesses $118,600.00
belonging to Defendant.

Of this $118,600.00, Defendant loaned the Estate $50,000.00 to prevent foreclosure on a
piece of property which comprises the Estate’s primary asset.

Defendant paid the remaining $68,000.00 to an account in the name of Joseph Battaglia
Realty, which was an account used to pay mortgages on a building the Estate currently owns. Of
this $68,000.00, there were three separate types of transactions.

First, Quality Midwest Perishable Sales, a sole proprietorship owned and operated by
Defendant, advanced $14,000.00 to keep the property discussed above out of foreclosure. This
$14,000.00 advancement was made through two checks: a $9,000.00 check provided to Plaintiff
and produced in discovery concerning this matter; and a $5,000.00 check that has never been

provided to Plaintiff by Battaglia despite discovery requests.