Mortgage Foreclosure - Bank Fails to Make Diligent Efforts To Serve Defendant - Default Judgment Reversed

CITIMORTGAGE, INC. v. Cotton, Ill: Appellate Court, 1st Dist., 2nd Div. 2012 - Google Scholar:

This is a mortgage foreclosure case in which Citimortgage was unable to serve the defendant and obtained service by publication.  On appeal, the court held that the bank failed to make diligent efforts to serve the defendant and the default judgment was reversed.

There are two standards that govern service - diligent inquiry and due inquiry.  The court explains the difference: "The plaintiff must conduct both "diligent inquiry" in ascertaining the defendant's residence and "due inquiry" in ascertaining the defendant's whereabouts before the plaintiff can properly execute an affidavit stating that the defendant cannot be found. Bell Federal Savings & Loan Ass'n v. Horton, 59 Ill. App. 3d 923, 927-28, 376 N.E.2d 1029, 1033 (1978)."

Here, the bank failed to contact Cotton's attorney or attempt to reach Cotton at his job.  Thus, the bank may have failed to make "due inquiry."

After the judgment was entered, Cotton filed a motion for reconsideration, and a supporting affidavit, arguing that the bank's efforts to find him were lacking.

The case was remanded to the circuit court so that the court could conduct a hearing on what efforts the bank made.

Comment; the lesson here is that service by publication may be challenged.  Personal service is always the best idea.

Edward X. Clinton, Jr.

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Fraudulent Transfer - Appellate Court Upholds Judgment In Favor Of Creditor Against Wife Of Debtor

HARRIS NA v. Harris, Ill: Appellate Court, 1st Dist., 1st Div. 2012 - Google Scholar:

This is an appeal from a grant of summary judgment in favor of Harris Bank against Sheri Harris, the ex-wife of Stuart Levine.

The bank alleged that in 2002 Levine allegedly defaulted on a $3.3 million dollar note due to the Bank and to avoid collection had transferred assets to his wife for no consideration.  The asset transfers rendered Levine insolvent, so he was unable to pay Harris bank.

Ms. Harris argued that the bank's case was barred by a 2008 federal forfeiture judgment.  The trial court and the appellate court disagreed, holding instead that the forfeiture judgment only applied to two of Levine's assets, not the rest of the disputed property.

The court found that Ms. Harris forfeited two arguments (a) that there was adequate consideration for the transfers; and (b) that the property was marital property in which she had a 50% interest, because Ms. Harris failed to raise these issues before the trial court.  The court states: "Because neither this argument nor any evidence supporting it was presented to the circuit court, we deem the argument forfeited on appeal. See Cooney v. Magnabosco,407 Ill. App. 3d 264, 268, 943 N.E.2d 290 (2011) (stating that an appellant that fails to raise an issue in the circuit court waives that issue for purposes of appeal)."

In sum, a classic fraudulent transfer case.

Edward X. Clinton, Jr.

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Contract Law - Personal Guarantee Enforced Because of Admissions By Defendant

NISSAN MOTOR ACCEPTANCE CORPORATION v. ABBAS HOLDING I, INC., Ill: Appellate Court, 1st Dist., 2nd Div. 2012 - Google Scholar:


The main issue in this case was whether the trial court properly ruled that an individual defendant, Joseph Abbas, was liable on a personal guaranty. The original document with Mr. Abbas' signature was lost. The court initially ruled in his favor. Upon reconsideration, the court ruled that the personal guaranty was binding on Abbas because he admitted in a verified answer that he signed it.

The admission in a verified answer was a binding judicial admission and was fatal to the defense of the personal guaranty claim. The analysis is worthy of quotation:

"¶ 19 Section 2-610 of the Code provides that every answer and subsequent pleading "shall contain an explicit admission or denial of each allegation of the pleading to which it relates," and that "[e]very allegation, except allegations of damages, not explicitly denied is admitted, unless the party states in his or her pleading that he or she has no knowledge thereof sufficient to form a belief, and attaches an affidavit of the truth of the statement of want of knowledge." (Emphasis added.) 735 ILCS 5/2-610(a), (b) (West 2010). "Any admission contained in the original verified pleading, which is not the product of mistake or inadvertence, is a binding judicial admission." Arpac Corp. v. Murray, 226 Ill. App. 3d 65, 80, 589 N.E.2d 640, 652 (1992). Such an admission "has the effect of withdrawing a fact from issue and dispensing wholly with the need for proof of the fact." Id. at 80-81, 589 N.E.2d at 652; Beverly Bank v. Coleman Air Transport, 134 Ill. App. 3d 699, 703, 481 N.E.2d 54, 57 (1985). A judicial admission in a verified pleading "makes it unnecessary for the opposing party to introduce evidence in support thereof." L.D.S., LLC v. Southern Cross Food, Ltd., 2011 IL App (1st) 102379, ¶ 35.

¶ 20 Paragraphs 22 and 23 of Nissan's first amended complaint pertained to its claim that Joseph breached the guaranty agreement (count III). As discussed, paragraph 22 alleged that "[o]n or about February 26, 2007, [Joseph] made, signed, and delivered to [Nissan] a certain Continuing Guaranty Agreement (`Guaranty') in writing, whereby he promised and agreed promptly to pay any and all liabilities of [Abbas Holding] to [Nissan] then existing or due or to be incurred or become due." In Abbas Holding and Joseph's verified answer, Joseph "denies the allegations contained within [p]aragraph 22 of [Nissan's] First Amended Complaint, except the allegation that on or about February 26, 2007, he made, signed, and delivered to [Nissan] a certain Continuing GuarantyAgreement (`Guaranty') in writing, subject to the production and examination of the original document." (Emphasis added.) Paragraph 23 of Nissan's first amended complaint alleged that the guaranty agreement "was continuing, absolute, and unconditional, including all costs and expenses in enforcing the Guaranty. (A copy of the Guaranty is attached hereto as Exhibit D.)" In Abbas Holding and Joseph's verified answer, Joseph "denies the allegations contained within [p]aragraph 23 of [Nissan's] First Amended Complaint, except the allegation that [Nissan] has attached a copy of theGuaranty as Exhibit D." (Emphasis added.)

¶ 21 We find that the italicized and "excepted" portions of Joseph's answers were not explicit denials of the allegations under section 2-610 of the Code and, thus, constituted admissions that Joseph had signed and delivered the guaranty agreement to Nissan and that a copy of the guaranty agreement was attached to Nissan's first amended complaint as an exhibit. Because Abbas Holding and Joseph do not argue that these admissions in the verified answer were the product of mistake or inadvertence, we find them to be binding judicial admissions which had "the effect of discharging the need for any further proof" to prove the existence of the guaranty agreement, as the trial court correctly noted in its April 12, 2011 ruling which granted Nissan's motion to reconsider. Accordingly, Nissan was not required to produce the original guaranty agreement at trial under the best evidence rule, and Joseph's answer to the allegations under paragraph 22 that his admission was made "subject to the production and examination of the original document" had absolutely no legal effect upon Nissan. See Beverly Bank,134 Ill. App. 3d at 704, 481 N.E.2d at 57 (holding that personal guarantor's verified answer admitting plaintiff's allegations that a guaranty had been signed and delivered constituted a binding admission against personal guarantor); see generally In re Estate of Weiland, 338 Ill. App. 3d 585, 604, 788 N.E.2d 811, 827 (2003) (best evidence rule requires the existence of a contract or other writing to be proven by the original writing unless it is shown that the original was lost, destroyed, or otherwise unavailable)."


Comment: it is important to carefully consider any answer to any pleading. An answer that admits a paragraph of a verified complaint should usually be binding on the person making the admission, especially here where sophisticated people borrowed money from a finance company. This is a good decision.


Edward X. Clinton, Jr.

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For What It's Worth: Two articles in today's Law Bulletin suggest struc...

For What It's Worth: Two articles in today's Law Bulletin suggest struc...: Today's Chicago Daily Law Bulletin carries two articles that expose what may be a structural flaw in the legal profession itself. Too big...

Jack Leyhane points out today that (a) more lawyers are being created every year and (b) the demand for legal services is shrinking.  Worse still, lots of people who could pay for lawyers are now opting to litigate pro se.

He is, of course, correct about these long-term trends in the profession.  I graduated in 1991 and joined Mayer Brown in 1992.  From the first day I was there, it became obvious that there were extra people at the firm, people who were billing time to clients but who were not doing any real work.  The recession in 2008  obviously caused the corporations to notice that they were paying for extra people - lots of extra people.  The corporations became smart - they learned how to cut outside lawyers and bring the work in house or to handle the work very efficiently.  Lawyers who were used to attending team meetings were laid off never to return to the corridors of the large law firms.

The new problem is outsourcing - lots of work can be done competently by outsourcing firms in India and elsewhere.  The routine legal work that employed lots of people is slowly drying up - at least at the corporate level.

This all spells trouble for the law students who have graduated in the past 10 years.  While we produced too many lawyers in 1991, we now produce 2X as many lawyers as there are jobs to fill.  This means misery and unpaid debt for lots of young people.

It also suggests that the law schools have been graduating students who were not qualified to practice law and that this process (social promotion) has caused great harm to the profession.  It is difficult to quantify the number of people who graduate each year and do not have the skills necessary to practice.  What is beyond dispute is that this number is growing, even with an increase in law school tuition and more and more clinical programs.

Edward X. Clinton, Jr.

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Insurance Coverage - State Farm Prevails Because Policyholders No Longer Live In Residence

SCHUCHMAN v. STATE AUTO PROPERTY AND CASUALTY INSURANCE COMPANY, Dist. Court, SD Illinois 2012 - Google Scholar:

State Farm has won summary judgment in a coverage case.  The plaintiffs purchased homeowners insurance and then made the mistake of moving out to a mobile home.  The residence sustained fire damage and they submitted a claim to State Farm, which denied coverage.

The District Court agreed with State Farm and granted summary judgment.  Because the insurance contract limited State Farm's obligation to insure a "residence," plaintiff's had no claim.

This type of result occurs all the time in the world of insurance coverage - plaintiff buys insurance only to realize that when there is a claim, he has no insurance.

Edward X. Clinton, Jr.


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Insured Prevails In Coverage Fight With Progressive Insurance

PROGRESSIVE DIRECT INSURANCE COMPANY v. JUNGKANS, Ill: Appellate Court, 2nd Dist. 2012 - Google Scholar:

This case was recently decided by the Illinois Appellate Court, Second District.

The defendant, Kyle Jungkans, was seriously injured in a motor vehicle accident, while he was riding in a car driven by Billy Watts.

Jungkans settled with State Farm, Watts' insurer, for the policy limits, then sought underinsured motorist coverage under his policy with Progressive Direct.  Progressive denied coverage on the basis that Jungkans' failure to give notice to Progressive before the settlement violated the cooperation clause.  The trial court granted Progressive summary judgment, but the Appellate Court reversed.

Jungkans conceded that he violated the Progressive policy by failing to give notice to Progressive.  However, Progressive was not prejudiced by the settlement because Watts was judgment proof at the time of the accident.  Moreover, Progressive was aware of its subrogation rights before Jungkans entered into the settlement with State Farm.

The Court explains:

As to the knowledge issue:

"¶ 19 We agree with defendant that there is no genuine dispute that State Farm knew in advance of the settlement that plaintiff had a subrogation right against Watts and that this was sufficient to defeat the invocation of the cooperation clause. Bell said plainly that she knew in advance of plaintiff's subrogation right. Although this statement was a conclusion, it hardly required elaboration; Bell would have known whether she had been aware of plaintiff's subrogation right, a routine fact of insurance litigation. Under the case law, that was sufficient. Thus, there is no genuine issue of fact as to whether plaintiff retained its subrogation right, especially as, per Richter, it was ultimately plaintiff's burden to prove that defendant's settlement cut off that right."


As to the prejudice issue, there was no prejudice because the defendant in the underlying case was judgment proof.


"¶ 25 Numerous jurisdictions have held that an insurer may not rely on a technical violation of a cooperation clause to deny coverage if the tortfeasor with whom the insured settled was judgment-proof."


The opinion cites the many cases siding with the insured.


Edward X. Clinton, Jr.


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Contract Law - Personal Guaranty Enforced in Illinois

The case is a routine collection case for $5,000.  The legal issue is important: the enforceability of a personal guaranty.

TH Davidson and Company v. Eidola Concrete, LLC and Thomas E. Kilbride, 2012 Il App (3d) 110641.

The case originated in small claims court.  Plaintiff sought to recover on a line of credit for $5,600.80.  The trial court entered judgement in that amount against Plaintiff, and against Kilbride, who signed a personal guaranty.

Kilbride appealed on the ground that his guaranty was limited to $1,000.  He based this argument on the original credit application, which he signed as a personal guarantor.  The original credit application was for $1,000.  Later, the parties, through a course of dealing, increased the credit limit to $5,600.

The trial court and the appellate court found that the guaranty was a continuing guaranty.  The opinion at Paragraph 11 quotes the Restatement (Third) of Suretyship and Guaranty § 16: "A continuing guaranty is a contract pursuant to which a person agrees to be a secondary obligor for all future obligations fo the principal obligor to the obligee."  Because the parties contemplated a "future course of dealing" the guaranty was for the maximum amount of credit extended.

Kilbride could have also limited the guaranty by inserting express language into the credit application.  He did not.  Therefore, the guaranty was unlimited.

Comment: clients should never sign a continuing guaranty.  Limiting language should always be inserted.  That being said, my experience is that clients sign these documents all the time and do not consider the consequences until it is too late.

Edward X. Clinton, Jr.

www.clintonlaw.net

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