United States District Court, N.D. Illinois, Eastern Division
TERENCE W. OCHS, Plaintiff,
NICHOLAS C. HINDMAN, SR., Defendant.
Matthew M. Wawrzyn (#6276135) Stephen C. Jarvis (#6309321)
Wawrzyn & Jarvis LLC Counsel for Terence W. Ochs
W. Gettleman Judge
PLAINTIFF’S MOTION FOR ENTRY OF JUDGMENT BY
Valdez Magistrate Judge
Terence W. Ochs (“Ochs”) respectfully moves the
Court for entry of judgment by confession against Defendant
Nicholas C. Hindman, Sr. (“Hindman”). In support
of his motion, Ochs states as follows:
April 24, 2013, Ochs filed in this Court an action against
Hindman to recover on a promissory note, of which Hindman was
a guarantor. (Case No. 1:13-cv-03098.) On February 10, 2014,
Ochs and Hindman executed a settlement agreement disposing of
the action (the “Settlement Agreement, ” attached
hereto as Exhibit A; see also Ochs Decl. ¶ 2.)
On February 10, 2014, the parties filed a joint stipulation
dismissing the action with prejudice. (Case No.
1:13-cv-03098, Dkt. No. 33.)
Settlement Agreement is structured so that Hindman will have
paid Ochs $200, 000 by June 1, 2020. Hindman agreed to pay
Ochs an initial lump sum payment of $10, 000. (Ex. A ¶
1.a.) Hindman also agreed to pay Ochs a series of increasing
monthly payments: $1, 000 per month for the first 12 months
(March 1, 2014 through February 1, 2015); $2, 000 per month
for the following 12 months (March 1, 2015 through February
1, 2016); $3, 000 per month for the following 51 months
(March 1, 2016 through May 1, 2020); and a final payment of
$1, 000 by June 1, 2020. (Id. ¶ 1.b.)
Settlement Agreement provides that Hindman shall be in
default if Hindman fails to make payments as required by the
Settlement Agreement. (Ex. A ¶ 2.)
Under the agreement, Hindman was required to pay to Ochs $64,
000 by August 1, 2016. (Ex. A ¶¶ 1.a, 1.b.i-iii;
supra ¶ 2.) To date, Hindman has paid only $47,
000 to Ochs and has not made a payment since February of
2016. (Ochs Decl. ¶ 4.) Thus, $153, 000 remains to be
paid by Hindman to Ochs under the settlement agreement;
Hindman has failed to make payments as required by the
Settlement Agreement; and Hindman is in default.
the Settlement Agreement, Hindman agreed and authorized any
attorney to appear for Hindman and confess judgment for the
full balance remaining due under the Settlement Agreement.
(Ex. A ¶ 3.) Ochs filed this action to enforce the
confession of judgment provision in the Settlement Agreement.
the Settlement Agreement, Hindman waived service of process
for this action and waived all errors in the entry of any
judgment by confession. (Ex. A ¶ 3.) Notwithstanding
Hindman’s waiver of service of process, Ochs has sent a
copy of the complaint to Hindman via email-the method by
which the parties have corresponded for over two years-and
will send a copy of this motion on Hindman once it is filed.
(Ochs Decl. ¶ 3.)
Confession of judgment clauses (or “cognovit
notes”) are enforceable in federal court and under the
U.S. Constitution. IFC Credit Corp. v. United Bus. &
Indus. Fed. Credit Union, 512 F.3d 989, 994 (7th Cir.
2008) (“Even confession-of-judgment clauses in cognovit
notes are enforceable”) (citing D. H. Overmeyer
Co., 405 U.S. 174 (1972)); Soc’y of
Lloyd’s v. Ashenden, 233 F.3d 473, 479 (7th Cir.
2000) (enforcing confessed judgment).
Similarly, Illinois law recognizes the enforceability of a
confession of judgment provision by expressly authorizing by
statute that “any person for a debt bona fide due may
confess judgment by himself or herself or attorney duly
authorized, without process.” 735 ILCS 5/2-1301 (West
Because the Settlement Agreement, signed by Hindman,
expressly provides that any attorney may appear for Mr.
Hindman and confess judgment without process, Ochs is
entitled to immediate entry of judgment in favor of Ochs and
Settlement Agreement further provides that if Hindman is in
default, and Ochs takes steps to enforce the Settlement
Agreement through litigation or otherwise, Hindman shall pay
Mr. Ochs’ reasonable attorneys’ ...