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10/13/95 MAGNA BANK MCLEAN COUNTY v. GILBERT COMER

October 13, 1995

MAGNA BANK OF MCLEAN COUNTY, PLAINTIFF-APPELLANT,
v.
GILBERT COMER, JR., DEFENDANT-APPELLEE.



Appeal from Circuit Court of McLean County. No. 91LM195. Honorable Joseph H. Kelley, Judge Presiding. This Opinion Substituted by Court for Withdrawn Opinion of July 9, 1992,

Honorable John T. McCULLOUGH, J., Honorable James A. Knecht, J., Honorable Carl A. Lund, J.

The opinion of the court was delivered by: Mccullough

JUSTICE McCULLOUGH delivered the opinion of the court:

Plaintiff Magna Bank of McLean County appeals from an order of the circuit court of McLean County dismissing its cause of action against Gilbert Comer, Jr. Plaintiff sued to recover from defendant the balance due on a motor vehicle retail installment contract, plus interest, attorney fees, and costs. Determining defendant was a cosigner who was not a spouse or parent of the person who had possession of a 1984 Buick LeSabre automobile, the trial court decided section 18 of the Motor Vehicle Retail Installment Sales Act (Act) (Ill. Rev. Stat. 1989, ch. 121 1/2, par. 578) rendered defendant not liable since he did not also sign as a guarantor. The only issue presented on review is whether the trial court's application of the statute to this case was incorrect. We reverse and remand for further proceedings.

On appeal, the defendant has not filed an appellee's brief. However, this case is not being reversed for that reason. While this court will not act as an advocate for the appellee, the record is simple, and the claimed error is such that this court can decide the case on the merits without the aid of an appellee's brief. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 133, 345 N.E.2d 493, 495.

Section 18 of the Act reads as follows:

"Each person, other than a seller or holder, who signs a retail installment contract may be held liable only to the extent that he actually receives the motor vehicle described or identified in the contract, except that a parent or spouse who co-signs such retail installment contract may be held liable to the full extent of the deferred payment price notwithstanding such parent or spouse has not actually received the motor vehicle described or identifiedin the contract and except to the extent such person other than a seller or holder, signs in the capacity of a guarantor of collection.

The obligation of such guarantor is secondary, and not primary. The obligation arises only after the seller or holder has diligently taken all ordinary legal means to collect the debt from the primary obligor, but has not received full payment from such primary obligor or obligors.

No provisions in a retail installment contract obligating such guarantor is valid unless:

(1) there appears below the signature space provided for such guarantor the following:

'I hereby guarantee the collection of the above described amount upon failure of the seller named herein to collect said amount from the buyer named herein.'; and

(2) unless the guarantor, in addition to signing the retail installment contract, signs a separate instrument in the following form:

'EXPLANATION OF GUARANTOR'S OBLIGATION

You . . . (name of guarantor) by signing the retail installment contract and this document are agreeing that you will pay . . . (total deferred payment price) for the purchase of . . . (description of goods or services) ...


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