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Chrysler Credit Corp. v. Ross

APRIL 22, 1975.




APPEAL from the Circuit Court of Cook County; the Hon. MYRON P. GOMBERG, Judge, presiding.


This is the appeal of an installment contract assignee who after collecting 60% of the deferred price sued the motor vehicle installment buyer to recover a deficiency judgment. In defense of the suit, the buyer invoked section 20 of the Motor Vehicle Retail Installment Sales Act. Without a jury, the trial court sustained the defense. The issue before us is whether, within the words of the statute, a motor vehicle which is stolen, damaged by persons other than the buyer and then surrendered to the assignee of the seller, after 60% of the deferred price has been paid, is "* * * in ordinary condition and free from malicious damage * * *." The case is before us on an agreed statement of facts.

It appears from this statement that on October 8, 1970, Billy J. Ross entered into a retail installment contract by which he agreed to buy a 1971 Dodge sedan for a deferred payment price of $6152.80, payable in 36 consecutive monthly installments of $138.70. On the same day the contract was assigned to Chrysler Credit Corporation, the plaintiff in this case. Under the contract terms, Ross agreed to maintain the Dodge in good repair and "* * * keep [it] insured as [his] expense against substantial risk of damage, destruction, or loss for so long as any amount remains unpaid on this contract, with loss payable to the seller as its interest may appear * * *." Ross agreed that as proof of having obtained the required insurance coverage, he would, on its receipt, deliver the insurance policy to the seller or any assignee of the contract. The contract further provided that the seller could, at Ross' expense, "* * * but shall not be required to, and without prejudice to [its] rights under this contract if it does not, procure such vehicle insurance protecting (i) interest of [Ross and the seller] or (ii) interest of seller only, if [Ross] fails to procure or maintain such vehicle insurance or fails to furnish satisfactory evidence thereof upon request."

The contract was performed to the satisfaction of both parties until May 31, 1972, when Ross' motor vehicle was stolen. With that event, he stopped paying the installments. A short time later, the vehicle was recovered, damaged by the person or persons who had stolen it. Then, without legal proceedings, Ross surrendered the Dodge to Chrysler Credit after having paid more than 60% of the deferred payment price.

At the time, section 20 of the Motor Vehicle Retail Installment Sales Act provided that "[u]pon default by the buyer under a retail installment contract the parties have the rights and remedies provided in Article 9 of the Uniform Commercial Code. If the buyer has paid an amount equal to 60% or more of the deferred payment price at the time of his default under the contract and if the buyer, at the request of the holder and without legal proceedings, surrenders the goods to the holder in ordinary condition and free from malicious damage, the holder must, within 5 days from the date of receipt of the goods at his place of business, elect either (a) to retain the goods and release the buyer from further obligation under the contract, or (b) to return the goods to the buyer at the holder's expense and be limited to an action to recover the balance of the indebtedness." Ill. Rev. Stat. 1969, ch. 121 1/2, par. 580.

Chrysler Credit did not make either of these elections. Instead, pursuant to notice, it sold the surrendered vehicle at public auction for $839. Then, after crediting certain unearned charges, it determined that there was a deficiency totaling $1368.57 and sued Ross for this sum. He defended the suit by relying on the provisions of section 20. He argued that he had paid more than 60% of the deferred price; and although the vehicle was damaged by others, he had surrendered it without legal proceedings and free from malicious damage. Under these circumstances, Ross insisted, Chrysler Credit had to make one of the elections required by the statute but did not. Therefore, it could not recover any deficiency judgment. The trial court agreed with Ross and entered judgment in his favor.

In this court, Chrysler Credit contends that entering the judgment in Ross' favor was error. It argues that Ross was under a contractual obligation to keep his motor vehicle in good repair but surrendered it in a damaged condition, even though the damage was caused by other persons. Therefore, it is argued, section 20 was not available to him as a defense to the suit.

Ross meets this contention with the argument that he was protected by section 20 because he had paid more than 60% of the deferred price and had surrendered his vehicle free from malicious damage. Therefore, he insists, Chrysler Credit had to make one of the two elections required by the statute. It did not, however. For this reason, Ross concludes that his creditor could not recover a deficiency judgment against him. The contentions and arguments of the parties require us to construe section 20 and determine the intent of the Legislature when it afforded protection of the statute to an installment buyer who had paid 60% or more of the deferred price and who surrendered an installment purchased motor vehicle "* * * in ordinary condition and free from malicious damage * * *."

• 1 In construing a statute, the primary concern is determination of the legislative intent behind its enactment. (People ex rel. Moss v. Pate, 30 Ill.2d 271, 273, 195 N.E.2d 641.) To determine, as to a given statute, what was the legislative intent, a court may look not only at the language employed in the legislation, but also the reason and necessity for the law, the evils to be remedied, and the object and purpose which the legislature sought to obtain. (Mid-South Chemical Corp. v. Carpentier, 14 Ill.2d 514, 517, 153 N.E.2d 72.) To this end, consideration of legislative history is always proper; and this would include, of course, the occasion or necessity for the law, its previous condition concerning the subject and the defects in it which the legislature intended to remedy. (People ex rel. Cason v. Ring, 41 Ill.2d 305, 242 N.E.2d 267.) And in this task, a court will take into account such existing circumstances or contemporary conditions as may prevail at the time the law was adopted. Petterson v. City of Naperville, 9 Ill.2d 233, 137 N.E.2d 371; see Barrett v. Chicago Transit Authority, 348 Ill. App. 83, 107 N.E.2d 859.

Accordingly, we take into account the fact that "growth of the credit economy has been inevitably accompanied by a substantial growth of unscrupulous practices designed to prey upon the necessitous or unsophisticated consumer, and such practices have, in turn, produced renewed interest in various regulatory schemes designed to protect the consumer against himself and others." (See Annot., 14 A.L.R.3d 330, 333-334 (1967).) This renewed interest became increasingly apparent during the late 1950's and early 1960's in legislatures throughout the United States with the result that statutes were adopted as credit regulations whose purpose was the protection of consumers from fraud, deception, oppressive credit installment terms and similar unscrupulous practices. (See Note, Enforcement of Consumer Credit Regulations, 55 Nw. U.L. Rev. 403 (1960).) One class of consumers thus protected were those who purchased goods under the terms of retail installment contracts. And in Illinois, the statute adopted was the Retail Installment Sales Act, passed in 1957, and which became effective January 1, 1958. See Ill. Rev. Stat. 1957, ch. 121 1/2 pars. 223-53; Britton and Ulrich, The Illinois Retail Installment Sales Act — Historical Background and Comparative Legislation, 53 Nw. U.L. Rev. 137 (1958); Hubachek, The Drift Toward a Consumer Credit Code, 16 U. Chi. L. Rev. 609 (1949).

This statute, when it was adopted, was considered by many to be an Illinois legislative breakthrough. Early in its existence, however, its potential for ineffectiveness was noticed. (See Nichols, Caveat Vendor? The Illinois Retail Installment Sales Act, 46 Ill. Bar Jour. 658, 660 (1958).) Later in its history, its defects were the subject of comment by those who follow developments in our law of contracts. (See Benett, Contracts-Sales, 22 DePaul L. Rev. 156, 170 (1972).) For one thing, the coverage of the statute was broad; it included all goods purchased for personal or family use. "Goods," under the statute, meant "any tangible personal property." (Ill. Rev. Stat. 1957, ch. 121 1/2, par. 223.) Therefore, it included the installment purchase of a motor vehicle. See First National Bank v. Husted, 57 Ill. App.2d 227, 205 N.E.2d 780.

More importantly, this statute codified, indeed it reinforced, existing Illinois law by providing that on default of the buyer, the installment seller could retake the goods and sell them at public or private sale. (Ill. Rev. Stat. 1957, ch. 121 1/2, par. 247.) This was repossession which, with notice, the seller could accomplish by self-help. (Ill. Rev. Stat. 1957, ch. 121 1/2, par. 245.) The right to repossess goods sold under an installment contract is an ancient one. (See McCall, The Past as Prologue: A History of the Right to Repossess, 47 S. Cal. L. Rev. 58 (1973).) It was recognized in the common law of England (2 W. Blackstone Commentaries 1490n. 2 (Jones ed. 1916); F. Pollock & F. Maitland, The History of English Law 574 (2d ed. 1903), and it was enacted in Illinois law when the Retail Installment Sales Act was adopted (Ill. Rev. Stat. 1957. ch. 121 1/2, par. 245). Repossession and resale of the goods meant that proceeds of the resale could be applied by the seller first to payment of repossession and resale expenses; second, to the expenses incurred in keeping and storing the repossessed goods, including reasonable attorneys fees; and then, the balance was to be applied to the debt due under the installment contract. (Ill. Rev. Stat. 1957, ch. 121 1/2, par. 248.) The statute further provided that "[i]f the proceeds of the resale are not sufficient to defray the expenses thereof, and also the expenses of retaking, keeping and storing the goods to which the holder may be entitled and the balance due upon the purchase price, the holder may recover the deficiency from the buyer, or from any one who has succeeded to the obligations of the buyer." Ill. Rev. Stat. 1957, ch. 121 1/2, par. 249.

These provisions did not have statutory antecedents in Illinois law. (See Ill. Rev. Stat. 1955, ch. 121 1/2, pars. 1-222.) Their purpose, however, as is generally the purpose of credit reform legislation, was equalization of the relation between the installment seller and his buyer; it was to protect the buyer from the myriad of oppressive practices which, under the best of circumstances, seems to characterize installment selling. (See Alexander, Fraudulent Installment Sales in Chicago, 41 Chicago Bar Rec. 285 (1960); Note, Protecting the Installment Buyer, 49 Harv. L. Rev. 128 (1935); Donaldson, An Analysis of Retail Installment Sales Legislation, 19 Rocky Mt. L. Rev. 135 (1947); Hogan, A Survey of State Retail Installment Sales Legislation, 44 Cornell L.Q. 38 (1958).) But the Illinois retail installment sales statute contained features that were anomalous to the usual objectives of such laws. For example, the reasonableness of repossession and resale expenses, those for the keeping and storing of repossessed goods, and the reasonable value of the goods at the time of resale, were to be determined "* * * in any action or proceeding brought by the [seller] to recover deficiency, the resale price being prima facie but not conclusive evidence of such reasonable value." (Ill. Rev. Stat. 1957, ch. 121 1/2, par. 249.) With such provisions, it is not surprising, therefore, that the 1957 Retail Installment Sales Act, jarred by the social and economic realities of installment transactions, proved ineffective where the buyer was concerned, particularly one who purchased a motor vehicle on an installment contract.

This experience is perhaps explained by the fact that the motor vehicle is important in the life of the average American wage earner. Next to the money he spends on housing, his largest single investment is made when he buys the family car. And most likely, he will buy it on credit, payable in installments. This is true of millions of American wage earners. In fact, automobile installment sales account for the largest segment of installment credit in this country. ...

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