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First National Bank v. Wolfe





Appeal from the Circuit Court of Macon County; the Hon. Paul M. Francis, Judge, presiding. JUSTICE MCCULLOUGH DELIVERED THE OPINION OF THE COURT:

Plaintiff brought a small claims complaint to recover a deficiency judgment in the amount of $974.68 plus costs, as the balance due on a retail installment contract ($824.68 plus attorney fees $150). After hearing on June 18, 1984, at which defendant appeared pro se, the trial court entered judgment against defendant in favor of plaintiff in the amount requested. Defendant appeals from the judgment of the circuit court of Macon County. We reverse.

The retail installment contract in question was taken on a car and signed by defendant and his then wife. According to the testimony at hearing, the wife received the car in the judgment of dissolution, and was ordered to make payments on it. Thereafter, she left the State of Illinois. It was almost four months before the car was repossessed out-of-State. At hearing on June 18, 1984, various matters were stipulated to in the plaintiff's case, including the notice of sale, and the amount of the deficiency and attorney fees. The plaintiff rested. The defendant's theory of the case was that the bank (1) delayed unnecessarily in repossessing the car, which led to greater depreciation in its value, as it apparently had been driven into a ditch by defendant's son prior to repossession; and (2) failed to insure the car, although it had a right to do so. Defendant testified in this regard, and was questioned by the court. No rebuttal evidence was presented. At the conclusion of the hearing, the court found that, given an out-of-State repossession, the period from December to April was not unusual, and the delay was not unnecessarily long. Judgment was therefore entered against defendant.

On July 9, 1984, defendant filed a motion for a new trial; the record does not show this motion being disposed of. On October 26, 1984, defendant filed a first amended motion for a new trial, alleging:

"a. That Ill. Rev. Stat., Chapter 26, Section 9-504(3) requires collateral to be sold in a commercially reasonable manner.

b. That copies of notices admitted by stipulation between the parties sets out that the collateral would be available for viewing in Decatur, Illinois.

c. That the defendant's unrebutted testimony was that he went to view the collateral in Decatur, Illinois, and the collateral was not in the lot where it was represented to be, and his further unrebutted testimony was that the collateral was located in the State of Tennessee.

d. That a sale of an automobile held as collateral under the above stated circumstances is commercially unreasonable in that the vehicle was not present within the State of Illinois for viewing by any potential buyers and it is commercially unreasonable to expect a potential buyer to travel to the State of Tennessee to view a motor vehicle prior to bidding upon it." (Emphasis added.)

Arguments were heard on this motion on January 7, 1985, but the record on appeal contains no transcript of that hearing, and the docket entry contains no indication that additional evidence was taken. The cause was taken under advisement and, on January 22, 1985, the trial court denied the motion, finding that the sale of the security had been conducted in a commercially reasonable manner and the notice of public sale complied with the requirements of section 9-504(3) of the Uniform Commercial Code (Code) (Ill. Rev. Stat. 1983, ch. 26, par. 9-504(3)). This appeal followed.

On appeal, the defendant contends that the trial court erred in determining that the plaintiff sold the secured motor vehicle in a commercially reasonable manner, as the notice given to him specified that the motor vehicle was located in Decatur, Illinois, for inspection, when in fact it was located out-of-State. In questioning by the trial court at the hearing on June 18, 1984, defendant's answers included the following:

"Q. [By the court]: You stipulated that you received copies of the notices.

A. [By defendant]: Yes, sir.

Q. Did you contact the bank after you received those notices?

A. No, sir; I went by North 22nd Street where they said the car could be seen. The car was not there. They have a lot out on North 22nd Street, I believe across from Firestone, where they have repossessed automobiles. One ...

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