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Anco Investment Corp. v. Spencer

AUGUST 20, 1971.

ANCO INVESTMENT CORPORATION, PLAINTIFF-APPELLEE,

v.

JOSEPH SPENCER, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR L. DUNNE, Judge, presiding.

MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 30, 1971.

Defendant appeals from a judgment of confession entered against him on May 28, 1969, and from an order entered on December 22, 1969, confirming the judgment in the amount of $364. On appeal defendant contends that the contract upon which Anco Investment Corporation (hereafter "Anco") bases its claim is illegal since it fails to comply with the provisions of the Retail Installment Sales Act (hereafter "Act"). Ill. Rev. Stat. 1965, ch. 121 1/2, pars. 223 through 253.

• 1 Although Anco has filed no appearance or brief, we shall still review the merits of this appeal rather than enter summary reversal. Daley v. Jack's Tivoli Liquor Lounge, Inc., 118 Ill. App.2d 264.

No verbatim report of proceedings has been filed. However, a proposed report of proceedings was submitted by defendant and was approved by the trial judge. (Ill. Rev. Stat. 1967, ch. 110A, par. 323(c).) It shows that Anco called defendant as an adverse witness under section 60. Defendant testified that on October 11, 1967, Anco and he entered into an agreement (1) to cancel their previous contractual relationship which concerned an automobile which he bought from Gateway Motor Mart (hereafter "Gateway") and which was financed by Anco; (2) to release defendant from his debt to Anco then in the amount of $400; (3) to give Anco possession of the previously purchased automobile; and (4) to purchase a 1960 Cadillac from Gateway, the purchase to be financed by Anco.

Defendant also testified that the $1,500 principal amount of the instrument included the price of the 1960 Cadillac, finance charges and the $400 that he previously owed to Anco; the 1960 Cadillac was presently located at 4607 South Prairie Avenue, Chicago; and that he had asked Anco to come and pick up the automobile.

The manager of Anco testified that defendant paid $790 on the principal amount of $1,500 due Anco; that to his knowledge defendant purchased the 1960 Cadillac for his own use and not for resale or use in any business; and that title to the car remained with Anco.

Defendant testified in his own behalf. He stated that he purchased the 1960 Cadillac for his own use; that Anco still held title to the car; and that Anco could repossess the automobile at any time.

The trial court found that defendant owed Anco $310 plus attorneys' fees and confirmed judgment for $364.

Defendant contends that the contract upon which Anco bases its claim is illegal since it fails to comply with sections 2 and 3 of the Act. (Ill. Rev. Stat. 1965, ch. 121 1/2, pars. 244 and 255.) The contract entered into on October 7, 1967, between Anco, Gateway and defendant is a retail installment contract within the meaning of Section 1. *fn1 The 1960 Cadillac falls within the definition of "goods" because it is "tangible personal property"; defendant is a "retail buyer" because he is a "person who buys goods from a retail seller in a retail installment sale"; Gateway is a "retail seller" because it "sells goods to a retail buyer"; the transaction is a "retail installment sale" because it is a "sale, other than for a commercial or business use or for the purpose of resale of goods by a retail seller to a retail buyer for a time sale price payable in two or more installments"; and the "time sale price" is the "cash sale prices of the goods and the amount, if any, included for insurance and other benefits, official fees and finance charges."

Section 2 of the Act lists the general requirements for retail installment contracts as:

"The contract shall contain, printed or written in a size equal to at least ten-point bold type the following:

(a) Both at the top of the contract and directly above the space reserved for the signature of the buyer, the words `RETAIL INSTALLMENT CONTRACT'; and

(b) the following notice: `NOTICE TO THE BUYER: 1. Do not sign this contract before you read it or if it contains any blank space. 2. You are entitled to a completely filled in copy of this contract when you sign it. 3. Under the law, you have the following rights, among other: (a) To pay off in advance the full amount due and to obtain a partial refund of the ...


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