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10/17/97 GEORGE S. BECHARAS v. THOMAS N. CUMMINGS

October 17, 1997

GEORGE S. BECHARAS, JR., PLAINTIFF-APPELLANT,
v.
THOMAS N. CUMMINGS, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. No. 95 L 7598. Honorable Philip L. Bronstein, Judge Presiding.

Released for Publication December 5, 1997.

The Honorable Justice Zwick delivered the opinion of the court. Theis, J., and Quinn, J., concur.

The opinion of the court was delivered by: Zwick

The Honorable Justice ZWICK delivered the opinion of the court:

Plaintiff brought this action which sought to enforce the terms of a written promissory note executed by defendant in 1985. Upon motion of defendant, the trial court entered summary judgment in favor of defendant, finding that the statute of limitations set forth in section 3-118 of the Uniform Commercial Code (810 ILCS 5/3-118(a) (West 1994)) applied retroactively to bar plaintiff's claim. Plaintiff has appealed this ruling.

Plaintiff alleged that prior to April 15, 1985, he loaned to defendant sums of money on various occasions totaling more than $20,000. On the above date, defendant executed a promissory note in favor of plaintiff in the amount of $20,000, with interest at the rate of 10%, compounded monthly. The promissory note provided, in relevant part, as follows:

"One year after date, for value received, the undersigned promises to pay to the order of George S. Becharas, Jr. Twenty Thousand and no/100 Dollars at 555 West Cornelia, Chicago, Illinois 60657; with interest at Ten (10%) percent per annum *** compounded monthly after the date of this note until paid."

The promissory note also contained a confession of judgment clause and a provision for reasonable costs of collection, including reasonable attorney's fees.

On April 12, 1995, plaintiff filed his initial complaint against defendant, seeking recovery under the note. On April 25, 1995, plaintiff obtained a judgment by confession, and on July 28, 1995, defendant filed a motion to open the judgment by confession. Defendant also filed a verified answer, denying that he had executed the promissory note or that he owed plaintiff any money. On August 21, 1995, plaintiff filed an affidavit in response, stating, inter alia, that the money had been loaned to defendant to cover business expenses and that plaintiff had demanded payment on the note in August 1989, but defendant had refused to satisfy the debt.

The trial court subsequently entered an order opening the judgment by confession, and plaintiff thereafter filed a first amended complaint. Defendant filed a verified answer and counterclaim, denying that he had executed the note.

On February 16, 1996, defendant filed a motion for summary judgment, asserting that plaintiff's claim was barred by the applicable statute of limitations. Defendant also filed an amended verified answer and affirmative defense which raised the statute of limitations. Plaintiff thereafter denied the allegations contained in defendant's affirmative defense and opposed the motion for summary judgment. The trial court granted defendant's motion for summary judgment on August 23, 1996, finding that section 3-118(a) of the Illinois Commercial Code, effective January 1, 1992, applied retroactively to bar plaintiff's claim and that plaintiff had not filed his action within a reasonable time of the enactment of that statute. Defendant withdrew his counterclaim, and plaintiff appealed the entry of summary judgment in favor of defendant.

On appeal, plaintiff contends that the trial court erred in finding that his cause of action was barred. In support of this contention, plaintiff argues that the statute of limitations for his claim is defined in section 13-206 of the Illinois Code of Civil Procedure, which provides, in pertinent part, that actions on promissory notes shall be commenced within 10 years after the cause of action has accrued. See 735 ILCS 5/13-206 (West 1994). Plaintiff asserts that because this statute of limitations was in effect when the note was executed and when it came due, he had 10 years to file suit on the note. Plaintiff reasons that because his claim would not have been barred under this statute until April 15, 1996, his compliant filed on April 12, 1995, was timely.

However, the trial court determined that the six-year statute of limitations set forth in section 3-118(a) of the Uniform ...


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