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Sears Bank & Trust Co. v. Scott

JUNE 13, 1975.

SEARS BANK & TRUST COMPANY, PLAINTIFF-APPELLEE,

v.

LINCOLN SCOTT, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. WILLIAM F. PATTERSON, Judge, presiding.

MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

This is an appeal by defendant from the denial of his motion to vacate a judgment entered by confession. His alternative motion to open the judgment pursuant to Supreme Court Rule 276 (Ill. Rev. Stat. 1973, ch. 110A, par. 276) was also denied. *fn1 On appeal, he asserts error in the denial of his motion to vacate inasmuch as he contends that the original judgment was void. All parties agree that the motion is untimely if the original judgment entered was merely voidable, since the motion was made some 6 years after the entry of the judgment, and section 72 of the Civil Practice Act explicitly provides that, absent fraud, motion to vacate must be brought within 2 years of the entry of the judgment (Ill. Rev. Stat. 1973, ch. 110, par. 72(3)); however, a void judgment may be attacked at any time. (Ill. Rev. Stat. 1973, ch. 110, par. 72(6); Cherin v. R. & C. Co., 11 Ill.2d 447, 453, 143 N.E.2d 235.) Thus, the only issue presented is whether the judgment attached is void.

On January 11, 1965, defendant signed a retail installment sales contract to purchase an automobile. The contract listed the various credits to defendant and the seller with a time price balance of $3,888 to be paid in 36 monthly installments of $108. Among the clauses in the contract was the warrant of attorney, as follows:

"Further to secure the payment of any indebtedness hereunder, the undersigned, being the Buyer or Buyers herein, hereby jointly and severally irrevocably authorize any attorney of any Court of Record to appear for the undersigned, or any of them, in such Court at any time hereafter, in term time or vacation, and to confess judgment witthout process against them, or any one or more of them, jointly or severally, in favor of the holder hereof, for such sum as may appear to be unpaid and owing hereon, together with costs and reasonable attorney's fees and to waive and release all errors which may intervene in such proceeding, and consent to immediate execution upon such judgment or judgments, hereby ratifying and confirming all that said attorney may do by virtue hereof, and further agree that the confession of any such judgment against any one or more, but less than all, of the undersigned shall not preclude the confession of judgment against any other of the undersigned."

This contract was assigned to plaintiff, to whom defendant then made payments. When defendant defaulted, plaintiff repossessed the automobile and sold it to satisfy the amount due on the contract. Plaintiff apparently failed to obtain a price sufficient to liquidate the balance due because, on January 4, 1968, it caused a judgment by confession to be entered against defendant for $919.03, allegedly the balance due on the contract plus attorney's fee. Citation proceedings were commenced against defendant, *fn2 but the judgment remained unsatisfied.

Some 6 years later, on May 13, 1974, defendant presented a written motion, supported by affidavit, seking to vacate the confessed judgment of January 4, 1968, asserting that the complaint failed to allege either that defendant was notified of any disposition of the automobile or that such disposition was commercially reasonable, as required by the Uniform Commercial Code, and further asserting that, because proof of said notice and of a commercially reasonable disposition would necessitate the introduction of evidence outside the scope of the warrant of attorney, the court lacked jurisdiction to enter the judgment.

OPINION

Defendant first contends that "[t]o be entitled to a deficiency judgment, a secured party must allege and prove compliance with article nine of the Uniform Commercial Code." He cites authority to the effect that, under the Code, deficiency claims will be denied where (1) the secured party fails to show that a commercially reasonable sale of repossessed chattel was conducted; and (2) there is a failure of proof of notice of the intended disposition of the chattel. He further argues that judgment by confession is void where the amount due on the debt cannot be determined solely from the document evidencing the indebtedness.

Defendant contends the requirements of sale should be controlled by the Code. We note that section 9-203(2) thereof (Ill. Rev. Stat. 1965, ch. 26, par. 9-203(2)), in force at the time of the effective date of the contract, provided that:

"A transaction, although subject to this Article, is also subject to * * * `The Retail Installment Sales Act', approved June 17, 1957, as heretofore or hereafter amended; * * * and in the case of conflict between the provisions of this Article and any such statute, the provisions of such statute control. Failure to comply with any applicable statute has only the effect which is specified therein."

The Retail Installment Sales Act of 1957 (hereafter "RISA") was repealed effective January 1, 1968, but section 33 of the new RISA (Ill. Rev. Stat. 1973, ch. 121 1/2, par. 533) declares that transactions entered into prior to the effective date of the new act (January 1, 1968) are to be governed by the provisions of the former act as though not repealed.

Defendant, in assuming that the provisions of the Code govern, argues that the judgment was void because he was entitled to, but did not receive, notice of sale pursuant to section 9-504(3) of the Code (Ill. Rev. Stat. 1965, ch. 26, par. 9-504(3)), *fn3 and that there was no proof that the sale was conducted in a commercially reasonable manner as provided in section 9-507(2) (Ill. Rev. Stat. 1965, ch. 26, par. 9-507(2).) *fn4

We do not believe the Code governs the circumstances here. We note that section 9-203(2) *fn5 of the Code (Ill. Rev. Stat. 1965, ch. 26, par. 9-203(2)) provides that its provisions are to apply only if not in conflict with RISA. An examination of that Act indicates that provision is made for a 10-day notice of the time and place of any sale of collateral *fn6 and, further, for a manner in which the commercial reasonableness of the sale may be contested. *fn7 In view thereof, we see a conflict between the Code and RISA and, as a result, the provisions of the Code do not apply. (Ill. Rev. Stat. 1965, ch. 26, par. 9-203(2).) Defendant, although contending there is no such conflict, asserts that even if plaintiff was not required by the Code to show a commercially reasonable sale of the automobile, it was, nonetheless, necessary that plaintiff show defendant was given the 10-day notice required by section 23 of RISA. *fn8 He argues that this could only be accomplished by proof of facts extrinsic to the document involved and that, because this was beyond the scope of the warrant of attorney, the confessed judgment is void. In support of this argument, he relies heavily on Northern Trust Co. v. Kuykendall, 133 Ill. App.2d 458, 273 N.E.2d 526. There, an action was brought to recover a deficiency on a retail installment contract after repossession and resale of an automobile. It was established there that the 10-day notice of sale required by section 23 of RISA had been mailed to the buyer's former address even though the holder had been informed of or was charged with knowledge of the buyer's new and correct address. The court held that notice was not given to the buyer "at his last known place of residence," as required by the statute, and that the improper resale would be deemed the same as a retention of the goods, prohibiting the recovery of any deficiency.

In light of the above, defendant contends here that no deficiency would be due unless proof of notice in compliance with section 23 was given. Such proof, he argues, was beyond the scope of the warrant of attorney and, if no proof of notice was made, plaintiff would be deemed to have ...


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