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Mt. Vernon Memorial Estates, Inc. v. Wood

OPINION FILED SEPTEMBER 12, 1980.

MT. VERNON MEMORIAL ESTATES, INC., PLAINTIFF AND COUNTERDEFENDANT-APPELLANT,

v.

ROBERT P. WOOD ET AL., DEFENDANTS AND COUNTERPLAINTIFFS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. JOHN E. BOWE, Judge, presiding.

MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

Plaintiff instituted proceedings to confirm its judgment by confession, and defendants counterclaimed. After a hearing, the trial court entered an order which (1) vacated the confession judgment; (2) entered judgments for each defendant on their counterclaim; and (3) awarded attorney's fees to each defendant. On appeal, plaintiff does not contest the judgment vacatur but asserts only that the court erred in failing to dismiss the counterclaim. Defendants, in their cross-appeal, contend that the award of attorney's fees to them was inadequate and unreasonable.

The essential facts are not in dispute. Plaintiff obtained its confession judgment for the balance on a retail installment contract and attorney's fees. It then instituted proceedings to confirm the judgment, and eventually defendants filed an answer and counterclaim. In their answer, they set forth several reasons in support of their request to vacate the judgment and dismiss the proceedings. In their counterclaim, they alleged violations of the Truth in Lending Act (TILA), 15 U.S.C. § 1601 et seq. (1976), and Regulation Z, 12 C.F.R. § 226 (1973), a regulation issued pursuant to the TILA (15 U.S.C. § 1604 (1976)), and they requested separate judgments and reasonable attorney's fees under section 1640(a) of the TILA.

After an evidentiary hearing, the confession judgment was vacated, judgments in the amount of $1,000 were entered for each defendant on their counterclaim, and each defendant was granted $132.50 in attorney's fees.

OPINION

Initially, it should be noted that plaintiff does not contest the vacatur of its confession judgment. It argues only that the trial court erred in denying its motion to dismiss defendants' counterclaim on the ground that it was not brought within the one-year limitation period set forth within section 1640(e) of the TILA, which provides:

"Any action under this section may be brought in any United States district court, or in any other court of competent jurisdiction, within one year from the date of the occurrence of the violation."

While there is no question that the counterclaim here was filed more than one year from the date of the occurrence of the alleged violations, the trial court held that it was properly brought under section 17 of the Limitations Act (Ill. Rev. Stat. 1977, ch. 83, par. 18), which provides in pertinent part:

"A defendant may plead a set-off or counter claim barred by the statute of limitation, while held and owned by him, to any action, the cause of which was owned by the plaintiff or person under whom he claims, before such set-off or counter claim was so barred, and not otherwise * * *."

It is plaintiff's position that the limitation in the TILA is substantive rather than procedural, and thus that any rights defendants had thereunder were extinguished when not exercised within one year and may not be reviewed through section 17 of the Illinois Limitations Act.

This court considered the same question in Wood Acceptance Co. v. King (1974), 18 Ill. App.3d 149, 309 N.E.2d 403, where, in an action to recover money, a counterclaim of defendant's alleging TILA violations was filed more than one year after the violations occurred. After noting "the purpose of section 17 of the Limitations Act to be one of fundamental fairness as well as a desire to grant defendant his complete day in court" (18 Ill. App.3d 149, 151, 309 N.E.2d 403, 405), this court stated:

"Although our research into the congressional hearings on the enactment of the Federal Truth in Lending Bill fails to disclose the purpose behind the one year filing period, we note that the Act is intended to safeguard the consumer in connection with the utilization of credit and the enforcement of the Act is accomplished through the institution of civil actions. * * * We conclude that the one year limitation in which to bring the federal right is not such an integral part of the Federal Truth in Lending Act as to outweigh the combined purposes of that Act and section 17 of the Limitations Act."

• 1 Plaintiff argues, however, that the reasoning of Wood Acceptance is no longer sustainable. In support of this position, it refers us to Smith v. No. 2 Galesburg Crown Finance Corp. (7th Cir. 1980), 615 F.2d 407, and Basham v. Finance America Corp. (7th Cir. 1978), 583 F.2d 918, cert. denied sub nom. DeJaynes v. General Finance Corp. (1979), 439 U.S. 1128, 59 L.Ed.2d 89, 99 S.Ct. 1046, as well as to cases from foreign jurisdictions. While both Smith and Basham held that TILA counterclaims brought after the expiration of the one-year limitation period are barred, in neither decision was it determined whether the limitation period could be waived by a statute such as section 17 of the Limitations Act and, to this extent, they are inapposite to the case at bar. Moreover, this court, in National Boulevard Bank v. Thompson (1980), 85 Ill. App.3d 1145, 1148, 407 N.E.2d 739, 740, recently reviewed the remaining authority cited by plaintiff, as well as other cases decided subsequent to Wood Acceptance, and drew the following conclusion:

"[T]hough not unanimous, the clear weight of authority is in accord with the result reached in [Wood Acceptance] and supports ...


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