in default. Additionally, the lease contained a non-waiver provision which provided that any delay on the plaintiff creditor's behalf in enforcing its rights would have no effect on the creditor's ability to later enforce those rights. Cianelli, 73 Ohio App. 3d at 785, 598 N.E.2d at 791.
The defendant made several late payments which were more than 30 days late, and was late with two payments, one due on September 5, 1987 and the other due on October 5, 1987, when the plaintiff repossessed the defendant's vehicle on October 15, 1987. The defendant was also in non-monetary default in that he had failed to allow the creditors to make inspections of the vehicle and had allowed liens to attach to the vehicle. Cianelli, 73 Ohio App. 3d at 783, 598 N.E.2d at 790-791. On the same day that the defendant's car was repossessed, the plaintiff received the September payment. Plaintiff then received the October payment the next day. Cianelli, 73 Ohio App. 3d at 783, 598 N.E.2d at 791.
The defendant argued that he "cured" his default when the plaintiff accepted the late September 5, 1987 payment, and therefore the plaintiff no longer had any right to keep the defendant's seized vehicle. Cianelli, 73 Ohio App. 3d at 784, 598 N.E.2d at 791. However, the Cianelli court found the defendant to be in default under his agreement and that he did not "cure" his default by eventually paying the late payment amount. The court found that based on the clear and unambiguous terms of the contract, the bank's acceptance of the late payment did not constitute a waiver of its rights under the lease. Nothing in the lease gave the defendant the right to "cure" a default, and according to the express terms of the lease, the creditor's acceptance of late payments did not waive its right to enforce the lease. Cianelli, 73 Ohio App. 3d at 786, 598 N.E.2d at 792.
Lastly, Lewis also argues that because National City allowed Lewis to become current on his debt during a prior repossession of the Boat and a prior acceleration of the loan, such conduct also results in a waiver of National City's rights upon default. Again, the Court looks to the express provisions of the Note and Security Agreement which states that the "bank may delay enforcing any of its rights on this Agreement or any security by acceptance of late or partial payments or otherwise without losing any of its rights." (Note and Security Agreement, P 13(v)). If anything, this past course of conduct illustrates that National City intended to enforce its rights under the Agreement and did not approve of Lewis' habit of late payments.
Therefore, in light of the above case law and the unambiguous provisions in the Note and Security Agreement, we find that Lewis could not have reasonably relied on National City's acceptance of late and partial payments as a waiver of the Bank's rights under default. Lewis, furthermore, has not raised a material issue of fact for trial. Based on this, Lewis did not have any absolute and unconditional right to immediate possession of the property and his claim for conversion must fail. Pavilon, 204 Ill. App. 3d at 247, 561 N.E.2d at 1253. Therefore, while construing all factual inferences in favor of the party opposing the motion, the Court finds that summary judgment should be granted for the defendant, National City Bank, as to Lewis' claim for wrongful repossession.
C. National City's Counterclaim for the Unpaid Balance of the Loan
Similarly, as with Lewis' claim for wrongful repossession, no genuine issue of material fact exists as to defendant National City's counterclaim for the unpaid balance of the loan. National City claims that it sold the boat at a public auction in a commercially reasonable manner with proper notice to all parties for $ 69,500.00. National City claims that, after applying the sale proceeds, the principal amount due is $ 51,883.69. National City seeks this amount from plaintiff Lewis, plus interest.
Lewis does not raise any issue of material fact as to the counterclaim. Lewis does not contest that the sale was commercially reasonable, that proper notice was given, or that the balance remaining after the sale is other than that specified by National City. Lewis' only argument in opposition to the counterclaim is that National City acted unlawfully when it repossessed the boat on August 31, 1990. As stated above, however, National City acted within its rights when it repossessed the boat. Therefore, this Court hereby enters judgment against Lewis in the amount $ 51,883.69 plus interest.
D. The Rodi Proceeding Has No Relevance To his Summary Judgment Determination
In the interest of completeness, the Court will address the remaining, although irrelevant, argument made by Lewis. Lewis also claims that the ruling in Rodi v. M/V Rena, No 90 C 4445 1991 U.S. Dist. 5604 (N.D. Ill. April 24, 1991) (order granting sanctions) in some way affects the rights and liabilities of National City Bank and Lewis under the Note and Security Agreement. Rodi was filed on August 2, 1990 by George A. Hesik, attorney for Rodi Yachts, to enforce a maritime lien for work done on the Boat by Rodi Yachts. While Hesik's motives in bringing this action are not certain, the issues in that action in no way involved the instant parties' rights under the Note and Security Agreement. (Plaintiff's Statement of Material Fact, Exhibit O). Additionally, the subsequent contempt proceedings against Hesik concerned only Hesik's conduct in the Rodi action (Plaintiff's Statement of Material Fact, Exhibit W) and in no way dealt with any of the rights and liabilities between Lewis and National City arising from the Note and Security Agreement. In fact, Judge Shadur, who presided over the Rodi action, specifically stated that any dispute between National City and Lewis regarding any defaults on the loan to Lewis had to be brought as an independent lawsuit. (Defendant's Reply to Plaintiff's Statement of Material Fact). Therefore, the issues in Rodi and the related contempt proceedings in no way involved the rights or obligations of the present parties under the Note and Security Agreement which are at issue in the present action. Therefore, that case has no bearing on this motion for summary judgement.
Based on Lewis' repeated history of late payments up to the time of acceleration, the clear language of the Note and Security Agreement, and the weight of Ohio case law, the Court finds that Lewis had no right to immediate possession of his property and therefore summary judgment is granted to the defendant, National City Bank and plaintiff Lewis' cross for summary judgment is denied. Furthermore, summary judgment as to defendant National City's counterclaim is granted. Plaintiff and counterdefendant Lewis is ordered to pay to defendant and counterplaintiff National City $ 51,883.69 plus interest and costs.
Date: JAN 04 1993
JAMES H. ALESIA
United States District Judge
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