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Finance America v. Econo Coach

OPINION FILED MARCH 27, 1981.

FINANCE AMERICA COMMERCIAL CORPORATION, PLAINTIFF-APPELLEE,

v.

ECONO COACH, INC., ET AL., DEFENDANTS. — (WILLIAM H. HERCHENBACH ET AL., INTERPLEADERS-APPELLANTS.)



APPEAL from the Circuit Court of Lake County; the Hon. THOMAS DORAN, Judge, presiding.

MR. JUSTICE REINHARD DELIVERED THE OPINION OF THE COURT:

Rehearing denied May 13, 1981.

In April 1978, plaintiff filed a complaint against defendants seeking, among other things, a judgment for immediate possession of 17 recreational vehicles which were security for loans made to defendants pursuant to an inventory loan agreement. In February 1979, Arthur Frey, Donald Gable and William Herchenbach filed a petition to interplead which was heard and allowed. Interpleaders' petition alleged that during 1977 they each had purchased recreational vehicles from certain of the defendants; that certain of the defendants represented to interpleaders that they would forward the certificates of origin for the vehicles to the Illinois Secretary of State for issuance of titles in interpleaders' names; that certain of defendants titled said vehicles in the name "Econo-Coach, Inc." in the State of Florida, and that the titles were then pledged by certain of the defendants as security for loans from plaintiff. Plaintiff thereafter filed a motion for summary judgment against defendants which was granted by the court. In January 1980, plaintiff filed a motion for summary judgment against interpleaders and interpleaders filed an answer thereto. Summary judgment was entered in plaintiff's favor against interpleaders in April 1980. Thereafter, two of the interpleaders, Herchenbach and Gable, appealed from the order granting summary judgment and from a June 1980 order denying their petition for reconsideration.

Before addressing the substantive issue of whether the trial court erred in granting summary judgment we must consider certain preliminary matters. First of all, we would point out that although appellants were brought into this action through their petition to interplead, and although they have been referred to by themselves and the other parties as interpleaders, they in fact appear to be in the nature of intervenors within the scope and meaning of section 26.1 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 26.1) rather than interpleaders (Ill. Rev. Stat. 1979, ch. 110, par. 26.2). Therefore, we will consider Herchenbach and Gable's interest to be that of intervenors, but for clarity's sake will refer to them for purposes of this appeal as appellants.

• 1 On October 31, 1980, plaintiff filed a motion to strike the appellants' statement of facts and the appendix to appellants' brief. On November 6, 1980, this court issued an order taking plaintiff's motion with this case. Therefore, plaintiff's motion will have to be addressed at this time. Plaintiff first argues that appellants' statement of facts is totally outside of the record with the exception of one reference to the inventory loan agreement. Supreme Court Rule 341(e)(6) provides that the appellants' brief shall contain a statement of facts "with appropriate reference to the pages of the record on appeal * * *." (Ill. Rev. Stat. 1979, ch. 110A, par. 341(e)(6).) We agree that portions of appellants' 1 1/2-page statement of facts are unsupported by the record, and we do not consider those in this appeal. See Abbey Plumbing & Heating, Inc. v. Brown (1977), 47 Ill. App.3d 719, 721, 365 N.E.2d 115.

• 2 Secondly, plaintiff moves to strike the "appendix" to appellants' brief as not being in compliance with Supreme Court Rule 342. Supreme Court Rule 342 provides in pertinent part:

"(a) Appendix to the Brief. The appellant's brief shall include, as an appendix, a copy of the judgment appealed from, any opinion, memorandum, or findings of fact filed or entered by the trial judge, the notice of appeal, and a complete table of contents, with page references, of the record on appeal." (Ill. Rev. Stat. 1979, ch. 110A, par. 342(a).)

Appellants' "appendix" clearly fails to satisfy the requirements of Rule 342 and is hereby stricken. Although titled "appendix to brief," the document submitted is, in essence, an abstract of the record which cannot be filed unless the reviewing court orders that one shall be filed. Ill. Rev. Stat. 1979, ch. 110A, par. 342(b).

• 3 Next, we must address the primary issue on appeal, which is whether the trial court erred in granting summary judgment for plaintiff and against appellants. Summary judgment is appropriate only where "there is no genuine issue as to any material fact" and "the moving party is entitled to a judgment as a matter of law." (Ill. Rev. Stat. 1979, ch. 110, par. 57; Janes v. First Federal Savings & Loan Association (1974), 57 Ill.2d 398, 312 N.E.2d 605; Cuthbert v. Stempin (1979), 78 Ill. App.3d 562, 396 N.E.2d 1197.) Looking at the pleadings on file as well as the affidavit filed by plaintiff, it cannot be said that such conditions exist in the present case and, therefore, we reverse the judgment of the trial court.

Assuming, without deciding, that plaintiff has properly perfected its security interest in the vehicles in question in accordance with the provisions of the Uniform Commercial Code — Secured Transactions (Ill. Rev. Stat. 1979, ch. 26, par. 9-101 et seq.) and the Illinois vehicle title and registration law (Ill. Rev. Stat. 1979, ch. 95 1/2, par. 2-101 et seq.), the determinative question becomes one of priorities. The general rule regarding priorities between purchasers vis-a-vis creditors is set out in section 9-201 of the Uniform Commercial Code:

"Except as otherwise provided by this Act a security agreement is effective according to its terms between the parties, against purchasers of the collateral and against creditors." (Ill. Rev. Stat. 1979, ch. 26, par. 9-201.)

However, a major exception thereto is set out in section 9-307 of the Uniform Commercial Code:

"A buyer in ordinary course of business (subsection (9) of Section 1-201) other than a person buying farm products from a person engaged in farming operations takes free of a security interest created by his seller even though the security interest is perfected and even though the buyer knows of its existence." (Ill. Rev. Stat. 1979, ch. 26, par. 9-307(1).)

A "buyer in ordinary course of business" is, in turn, defined in section 1-201 of the Uniform ...


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