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03/27/95 BOULEVARD BANK v. ELIZABETH MOORE

March 27, 1995

BOULEVARD BANK, N. A., PLAINTIFF-COUNTERDEFENDANT-APPELLEE,
v.
ELIZABETH MOORE, DEFENDANT-COUNTERPLAINTIFF-APPELLANT AND ROOSEVELT MOORE, DEFENDANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE LEO DESMOND, JUDGE PRESIDING.

Presiding Justice Campbell delivered the opinion of the court: Buckley, J., and Braden, J., concur.

The opinion of the court was delivered by: Campbell

PRESIDING JUSTICE CAMPBELL delivered the opinion of the court:

Defendant and counterplaintiff Elizabeth Moore appeals an order of the circuit court of Cook County entering judgment in favor of plaintiff and counterdefendant Boulevard Bank, N.A. ("Bank") in an action arising out of a motor vehicle retail installment sales contract between the Bank, Ms. Moore, and defendant Roosevelt Moore, who co-signed Ms. Moore's car loan.

The record on appeal indicates the following facts. On August 1, 1987, Ms. Moore entered into a motor vehicle retail installment sales contract financed through the Bank. This contract gave the Bank a security interest in the automobile and provided for repossession of the automobile in the event of default. The record indicates that the contract was for a 1987 Dodge Shadow, that defendants made a down payment of $2,000 and financed $11,414.76 resulting in a total sale price of $18,211.40 including interest.

Ms. Moore testified that she fell behind in her car payments in September 1990, due to lack of work at her nursing agency. In November 1990, the automobile was repossessed at her home, located at 641 W. 64th Street in Chicago. Ms. Moore cooperated with the repossessors and gave the car keys to a man who represented that he worked for the Bank. Ms. Moore testified that the car was in good condition at the time and that it had suffered no malicious damage.

Maria Keler Peterson testified that she was the repossession and bankruptcy coordinator for the Bank in the Fall of 1990. Peterson testified that the Bank mailed several notices to Ms. Moore regarding the repossession of the automobile and Ms. Moore's rights thereafter. Peterson then referred to a number of joint exhibits in her testimony. These exhibits, which had previously been stipulated to by the parties, were dated November 3, 1990, included: (1) a cover letter; (2) a notice of private sale of repossessed vehicle; (3) a notice of intent to the debtor; and (4) a notice of right to recover vehicle. Another joint exhibit was identified by Peterson as copies of the envelopes that were sent certified mail and returned "attendant not known." Although these exhibits are not included in the record on appeal, the comments of the trial court and counsel, together with the examination of Peterson and Ms. Moore, indicate that the notices were mailed to an address 641 West 69th Street instead of Ms. Moore's residence on 64th Street. Peterson testified that this was apparently a typographical error.

John Childless testified that in February 1991, he was the recovery specialist for the Bank. Childless testified that Ms. Moore had paid over sixty percent of the deferred payment price of the automobile before it was repossessed by the Bank. Childless identified an exhibit as a statement of sale dated February 4, 1991. Ms. Moore testified that she received this statement. The statement indicated a deficiency of $2,641.37 after the automobile was sold for $2,250.

The parties also stipulated to a letter from the Bank's attorney to Ms. Moore and Roosevelt Moore, dated May 29, 1991, demanding payment.

The Bank filed a complaint against Ms. Moore on July 16, 1991, alleging breach of the motor vehicle retail installment sales contract. On December 11, 1991, Ms. Moore filed an answer, affirmative defense and counterclaim. The counterclaim alleged that the Bank violated section 9-504(3) of the Uniform Commercial Code (Ill. Rev. Stat. 1989, ch. 26, par. 9-504(3)) ("UCC"), which states, in pertinent part:

"Reasonable notification of the time and place of any public sale or reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor, * * *."

Ms. Moore claimed that she was thus entitled to damages pursuant to section 9-507(1) of the UCC, which provides in pertinent part:

"If it is established that the secured party is not proceeding in accordance with the provisions of this Part disposition may be ordered or restrained on appropriate terms and conditions. If the disposition has occurred the debtor * * * has a right to recover from the secured party any loss caused by a failure to comply with the provisions of this Part. If the collateral is consumer goods, the debtor has a right to recover in any event an amount not less than the credit service charge plus 10% of the principal amount of the debt or the time price differential plus 10% of the cash price." Ill. Rev. Stat. 1989, ch. 26, par. 9-507(1).

On February 26, 1992, the Bank moved to voluntarily dismiss its complaint against Ms. Moore. The complaint was dismissed in an agreed order filed on March 11, 1992. The counterclaim, however, remained pending. The counterclaim was tried and denied on September 30, 1992. The trial court ruled that Ms. Moore was not able to recover damages under the UCC due to the operation of section 20 of the Motor Vehicle Retail Installment Sales Act (Ill. Rev. Stat. 1989, ch. 121 1/2, par. 580) ...


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