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Fin. Man. Serv. v. Sibilsky & Sibilsky

OPINION FILED JANUARY 31, 1985.

FINANCIAL MANAGEMENT SERVICES, INC., PLAINTIFF-APPELLEE,

v.

SIBILSKY AND SIBILSKY, INC., ET AL., DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County; the Hon. Thomas O'Brien, Judge, presiding.

JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:

Robert Sibilsky, Diana Sibilsky, and Darlene Sibilsky (the Sibilskys), corporate officers of Sibilsky & Sibilsky, Inc. (SSI), a Michigan corporation, appeal from the judgment of the circuit court of Cook County which denied their motion to vacate a judgment by confession previously entered against each of them personally in Cook County and denied their motion to quash summonses served upon them to confirm the judgment. On appeal, the Sibilskys contend that the judgment by confession was void for lack of Illinois in personam jurisdiction. They raise the following questions for our review:

1. Whether they were individually insulated from suit in Illinois under the fiduciary shield doctrine.

2. Whether they lacked sufficient minimum contacts with Illinois to be subject to suit here.

3. Whether the judgment by confession was invalid on the ground that the application to confess judgment was not made in the county in which the note was executed.

4. Whether the warrant of attorney under which judgment was confessed was legally insufficient on the ground that at the time the instrument was created it failed to establish a certain and liquidated amount for which judgment could be confessed.

We affirm.

The Sibilskys attack the jurisdictional basis of a judgment by confession against each of them individually obtained by Financial Management Services, Inc. (FMSI), which is incorporated in Illinois and has an office in Rosemont. Judgment was confessed in the Cook County Circuit Court in the amount of $94,464.34 on June 10, 1981. Summonses to confirm the judgment were served upon Diana and Robert jointly on December 13, 1982; a similar summons was served upon Darlene on December 4, 1982.

On February 14, 1983, the Sibilskys filed a special appearance in the Cook County Circuit Court, accompanied by their petition to vacate the judgment by confession and their motion to quash service of process, solely and specifically for the purpose of objecting to the court's jurisdiction over them when the judgment by confession had been entered. The petition to vacate alleged in substance that the facts did not support assertion of in personam jurisdiction of the Illinois circuit court because they were not citizens or residents of Illinois, owned no property in Illinois, and had transacted no business in Illinois. The affidavit of Robert Sibilsky was included in support of the motion to vacate, as were a copy of the promissory note to FMSI, its accompanying security agreement between the parties, and supporting documents.

The promissory note on which FMSI obtained judgment was dated May 8, 1980, in the amount of $136,646.77. The note itself was not signed by any of the Sibilskys, but instead was executed by David Nowell, who was general manager of FMSI at the time, as attorney-in-fact for the Sibilskys. He was granted this authority by virtue of a power of attorney form which appeared immediately below the note and stated that Nowell was given the authority "to execute [the] promissory note set forth above at any location within the State of Illinois * * * in the capacit[ies] with respect to such note as [are] set forth with [the] name[s] below, and to deliver said note to Financial Management Services, Inc." The power of attorney was dated April 15, 1980. In the capacity of makers on the note, there appeared upon the power of attorney the typewritten names of "Sibilsky and Sibilsky, Inc.," "Robert Sibilsky," and "Diana Sibilsky." In the capacity of guarantors on the note, there appeared upon the power of attorney the typewritten names of "Robert Sibilsky," "Diana Sibilsky," and "Darlene Sibilsky." The Sibilskys signed the instrument on the blank spaces above their typewritten names. Thus, Robert and Diana each signed the document twice, as makers and as guarantors on the note. Darlene signed only as guarantor.

On the promissory note itself, there appeared as guarantors the names of Robert, Diana and Darlene in printed handwriting. As makers on the note, there appeared in similar fashion the names of SSI, Robert, and Diana. The note contained the following pertinent language of cognovit:

"The Undersigned hereby, jointly and severally, irrevocably authorize any attorney of any court of record to appear for them, or either or any of them, in such court in term time or vacation, at any time and from time to time after payment is due, whether by acceleration or otherwise, and confess a judgment without process against them, or anyone or more of them, in favor of the holder of this note for such sum as may appear to be unpaid and owing thereon together with interest, costs, and attorney's fees, and to waive and release all errors which may intervene in such proceeding and consent to immediate execution upon such judgment, hereby ratifying and confirming all that said attorney may do by virtue hereof.

WARNING — BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT TRIAL. IF YOU DO NOT PAY ON TIME, A COURT JUDGMENT MAY BE TAKEN AGAINST YOU WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWER OF A COURT CAN BE USED TO COLLECT FROM YOU AND YOUR EMPLOYER REGARDLESS OF ANY CLAIM YOU MAY HAVE AGAINST THE CREDITOR, WHETHER FOR RETURNED ...


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