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Resurgence Capital, LLC v. Kuznar

Court of Appeals of Illinois, First District, Fifth Division

December 15, 2017

RESURGENCE CAPITAL, LLC, Plaintiff-Appellee,
THOMAS KUZNAR, Defendant-Appellant.

         Appeal from the Circuit Court of Cook County No. 12 M1103777 Honorable Joyce Marie Murphy Gorman, Judge, presiding.

          JUSTICE LAMPKIN delivered the judgment of the court, with opinion. Presiding Justice Reyes and Justice Gordon concurred in the judgment and opinion.



         ¶ 1 Defendant Thomas Kuznar appeals the judgment of the circuit court, which ruled in favor of the plaintiff in this small claims action to collect on Kuznar's credit card debt. Kuznar challenges the circuit court's decisions to deny his motions for sanctions and discovery and to deny his motions to dismiss the case for lack of jurisdiction, failure to timely effectuate service, failure to state a cause of action, or on statute of limitations grounds. Kuznar also challenges the circuit court's evidentiary decision concerning certain testimony and finding that plaintiff did not violate statutory provisions concerning fraud.

         ¶ 2 For the reasons that follow, we affirm the judgment of the circuit court.

         ¶ 3 I. BACKGROUND

         ¶ 4 On January 23, 2012, plaintiff Resurgence Capital, LLC (Resurgence) filed a complaint against defendant Thomas Kuznar, seeking payment on a Chase Bank USA, N.A. (Chase) credit card account with a balance of $3614.97. Resurgence attached to its complaint bills of sale demonstrating it was the ultimate assignee of all right, title, and interest in Kuznar's Chase account, pursuant to Resurgence's purchase of the account in September 2011, the card member agreement governing the use of the account, and an affidavit attesting that Resurgence had all right, title, and interest in the account.

         ¶ 5 In February 2012, the sheriff's office of Cook County indicated it was unable to serve Kuznar with process at his residence, 4309 West Henderson Street, Unit 1, in Chicago. Resurgence issued an alias summons directing service upon Kuznar at his residence, but in May 2012 the special process server, Marshall Grady, indicated he was unable to serve Kuznar due to Kuznar's "threatening nature" and requested that Resurgence seek alternate service on Kuznar. Specifically, Grady stated that the landlord confirmed that Kuznar lived in the unit and, on Grady's third attempt, someone came to the door and looked at him through the peephole. Grady left a note with his name and number and later received a telephone call from a man who used a restricted phone number. The man was insulting, stated that the police had been called, said that Grady was to cease and desist his service attempts, and warned that he knew Grady's name and address. When Grady explained his position and the nature of the documents, the man said, "Whatever, " and hung up. The next day, Grady telephoned the landlord, who said he would call Kuznar and instruct him to call Grady, but Grady never received a call from Kuznar.

         ¶ 6 Resurgence moved for alternate service, and in October 2012, the trial court allowed Resurgence to serve Kuznar by certified and first class mail. Accordingly, Kuznar was served on November 16, 2012, by alternative service as directed by the court. In January 2013, Resurgence moved for a default and judgment against Kuznar.

         ¶ 7 On February 11, 2013, at the 2 p.m. presentment on the motion for default, the court entered judgment in Resurgence's favor in the amount of $3614.97 plus court costs. However, later that same day, at approximately 3:42 p.m., Kuznar filed a motion to quash service and set aside the default judgment. The motion was typed and included citations to statutes and case law. Although the motion was filed on February 11, 2013, it alleged Kuznar "first learned about this action on February 15, 2013 upon checking the online Court Docket." In his attached affidavit, Kuznar stated that he was not served by certified or "U.S. Mail." Meanwhile, on February 13, 2013, Resurgence sent Kuznar a letter informing him that a judgment had been entered against him. On March 12, 2013, the court quashed the summons and vacated the default judgment against Kuznar, who was the only party present. Resurgence did not receive a copy of Kuznar's motion to quash or the March 12 order vacating the default judgment, and the trial court would find in later proceedings that Kuznar failed to notify Resurgence of these matters.

         ¶ 8 Meanwhile, in December 2015, Resurgence filed a third-party citation to discover assets on a bank, which indicated on January 4, 2016, that it had frozen the assets in Kuznar's account, totaling 36 cents, in response to Resurgence's citation. On January 14, 2016, Kuznar filed an emergency motion to dismiss the third-party citation, dismiss the case with prejudice, and grant him leave to file a petition for sanctions against Resurgence for filing a false and fraudulent third-party citation after the default judgment had been vacated on March 12, 2013. The trial court granted Resurgence's request to voluntarily dismiss the citation and ordered that no bank fees would be assessed against Kuznar.

         ¶ 9 Kuznar filed his petition for sanctions in January 2016, and Resurgence filed its response in February 2016. In March 2016, Kuznar filed a reply and also moved to substitute the judge as of right and to conduct discovery concerning the authenticity of the signature of Resurgence's counsel on the citation. Resurgence filed a sur-reply and Kuznar filed an objection and request to strike Resurgence's sur-reply. Kuznar's motion to substitute the judge was granted in April 2016.

         ¶ 10 On April 29, 2016, the trial court (1) denied Kuznar's petition for sanctions, (2) struck Kuznar's petition for discovery, (3) found that Kuznar had submitted to the jurisdiction of the court, (4) stated that Kuznar has been tendered a copy of Resurgence's complaint in open court, and (5) set the case for trial on July 7, 2016. Kuznar moved the court to reconsider this order and thereafter moved to quash the subpoena served on Chase for records of Kuznar's account and for the issuance of a protective order. The trial court denied Kuznar's motions.

         ¶ 11 On July 5, 2016, Kuznar moved to dismiss Resurgence's claims but failed to obtain the requisite leave of court to file such a motion in a small claims case. Kuznar also filed his answer, which denied all of Resurgence's allegations relating to the account and raised as affirmative defenses the statute of limitations, failure to state a claim, lack of standing, contributory ...

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