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Pope v. First of America

August 19, 1998

EILEEN POPE, AS CUSTODIAN FOR RICHARD A. BOUDREAU UNDER THE ILLINOIS UNIFORM TRANSFERS TO MINORS ACT, PLAINTIFF-APPELLANT,
v.
FIRST OF AMERICA, N.A., DEFENDANT-THIRD-PARTY PLAINTIFF-APPELLEE,
v.
RICHARD A. BOUDREAU AND EILEEN POPE, THIRD-PARTY DEFENDANT-APPELLANTS.



The opinion of the court was delivered by: Justice Lytton

IN THE APPELLATE COURT OF ILLINOIS THIRD DISTRICT A.D., 1998

Appeal from the Circuit Court of the 21st Judicial Circuit Kankakee County, Illinois

No. 90-LM-703

Honorable Fred S. Carr, Jr. Judge, Presiding.

The Plaintiff Eileen Pope filed a complaint against the defendant bank, First of America, N.A., after it refused to allow her to withdraw funds she had deposited into an account opened for her son Richard A. Boudreau (Ricky) under the Illinois Uniform Transfers to Minors Act (Act) (760 ILCS 20/1 et seq. (West 1996)). The bank filed a motion for summary judgment, which the trial court granted. Pope appeals. We affirm.

FACTS

Pope opened the account on January 25, 1990. She was the custodian of the account, and Ricky was the minor beneficiary. Two days after the account was opened, Ricky went to the bank, showed his driver's license and erroneously obtained the number of an account owned by an unrelated man named Richard A. Boudreau and his wife. Using this account number, Ricky made nine withdrawals between January 17 and March 2, totaling $7,950, from Richard's account. After discovering the unauthorized withdrawals, the bank notified Pope and Ricky and requested the return of the funds. Restitution was never made.

On April 10, 1990, Pope tried to withdraw the $7,000 she had deposited into the trust account plus the accrued interest. The bank refused to turn over the money because it had been used to partially set off Ricky's unauthorized withdrawals.

On September 13, 1990, Pope filed a complaint against the bank, alleging that it had converted the trust account funds by refusing to allow her to withdraw the money. In its answer, the bank asserted the affirmative defense of setoff due to Ricky's conversion of $7,950. The bank also filed a third-party claim against Ricky and his mother, claiming they had failed to repay the funds Ricky had converted from the other bank account. The bank subsequently filed a motion for summary judgment on Pope's amended complaint and on count I of its third-party complaint against Ricky. Pope then filed a motion for judgment on the pleadings and the bank's affirmative defense of setoff.

On August 20, 1997, the trial court granted the bank's motion for summary judgment on Pope's complaint and on count I of its third-party complaint. Pope filed a timely notice of appeal from the portion of the judgment granting summary judgment in favor of the bank on her amended complaint. No appeal was taken regarding count I of the bank's third-party complaint.

Discussion

I.

A.

Pope first contends that the bank cannot use the setoff provision of the trust account to offset Ricky's withdrawals because she alone signed the deposit agreement and was the only person with the authority to make withdrawals. Thus, the ...


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