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Macmurray College v. Schiesser

OPINION FILED APRIL 1, 1985.

MACMURRAY COLLEGE, PLAINTIFF-APPELLANT,

v.

GAIL MARY SCHIESSER ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Morgan County; the Hon. J. David Bone, Judge, presiding.

JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:

A student loan.

Amount: $4,675.

Summary judgment for the student.

MacMurray College appeals.

We reverse and remand.

While enrolled as a student at MacMurray College, Gail Schiesser executed a promissory note agreeing to repay MacMurray for monies advanced through the National Direct Student Loan Program. Her father, John J. Schiesser, cosigned the note. During Gail's tenure at MacMurray, she was advanced $4,675 under the note.

Gail graduated from MacMurray in May 1978. From January 1979 to June 1979, she attended Illinois State University. Payments on the note were not due to begin until April 1980. Thereafter, quarterly payments were due in the amount of approximately $150, decreasing upon each payment.

Gail made no payments to MacMurray until December 5, 1980, when she paid $60.55. MacMurray granted Gail a hardship deferment, which was retroactive to April 1980 and extended through October 1980. By letter dated January 20, 1981, MacMurray advised Gail that a payment was due on January 1, 1981, in the amount of $151.94. MacMurray acknowledged that Gail would likely be unable to make this payment in full and requested that she make payments of $20 per month. Gail made one payment to MacMurray on April 8, 1981, in the amount of $15.

In the fall of 1981, the parties agreed that Gail would pay $25 per month beginning in October 1981, and that she would contact MacMurray in April 1982 to discuss her financial situation and revise their agreement accordingly. From November 1981 until April 1982, Gail made payments of $25 per month to MacMurray. Thereafter, Gail made no further payments.

MacMurray wrote Gail several times concerning her past-due note but received no response. On January 17, 1983, MacMurray wrote Gail advising her that her note had been accelerated. This letter was returned to MacMurray marked "unclaimed."

MacMurray brought this action to recover on the note. The amended complaint alleged that the defendants had failed to make the required payments under the note and that pursuant to the terms of the note, MacMurray had exercised its option to accelerate. Gail moved for summary judgment, arguing that MacMurray's failure to exercise its option to accelerate the debt prior to the time she became eligible for a deferment bars its recovery here. In support of her motion for summary judgment, Gail presented her affidavit stating that she was enrolled as a full-time law student at Chicago-Kent College of Law in August 1982, and that she had continued to be a full-time student to the present. The trial court granted Gail's motion. John then filed a motion for summary judgment, arguing that his liability, as cosigner of the note, was derivative of that of Gail's. The trial court also granted John's motion.

On appeal, MacMurray argues that the trial court erred in granting the defendants' motions for summary judgment because ...


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