Commercial Banking, Collections, and Bankruptcy

Taylor v. JPMorgan Chase Bank, N.A.,

Federal 7th Circuit Court
Taylor v. JPMorgan Chase Bank, N.A.,
Civil Court
Contracts
Citation
Case Number: 
No. 17-3019
Decision Date: 
April 30, 2020
Federal District: 
N.D. Ind., Hammond Div.
Holding: 
Affirmed

Dist. Ct. did not err in entering judgment on pleadings for defendant-bank in plaintiff-borrower's action alleging that defendant breached contract to modify parties' existing home mortgage under Home Affordable Mortgage Program (HAMP). Record showed that: (1) first step toward permanent loan modification under HAMP was for qualifying borrowers to enter into Trial Period Plan (TPP) with lenders and then make lower payments on provisional basis; (2) defendant sent to plaintiff proposed TPP agreement stating that trial period would not begin until both parties signed TPP and defendant returned signed copy to plaintiff; and (3) although plaintiff signed agreement, plaintiff failed to allege that defendant ever signed said agreement. No contract was ever formed, where condition precedent, i.e., defendant's signature on agreement, never occurred. Ct. further rejected plaintiff's contention that defendant waived its countersignature as condition precedent. Fact that plaintiff made one payment under payment schedule set forth in proposed TPP agreement did not require different result, since defendant's acceptance of said payment was not inconsistent with its intent to rely on countersignature condition precedent. (Dissent filed.)

Ritchie Capital Management, LLC v. McGladrey & Pullen, LLP

Ritchie Capital Management, LLC v. McGladrey & Pullen, LLP
Illinois Appellate Court
Civil Court
Accountant Malpractice
Citation
Case Number: 
2020 IL App (1st) 180806
Decision Date: 
Wednesday, April 22, 2020
District: 
1st Dist.
Division/County: 
Cook Co., 3d Div.
Holding: 
Affirmed.
Justice: 
COBBS

Court properly dismissed 9-count complaint for accounting malpractice as time-barred under statute of limitations. Section 13-214.2 of Code of Civil Procedure gives a claimant 2 years from the time they knew or reasonably should have known of the act or omission in the accountant's professional service that gave rise to their cause of action, but not more than 5 years after the date on which the act or omission occurred.  Section 13-216 of Code of Civil Procedure, which tolls statute of limitations if action is stayed by injunction, order, or statutory prohibition, was not triggered by the bankruptcy filing of hedge funds in which Plaintiffs had invested. By not filing suit,l Plaintiffs provided no opportunity for bankruptcy court or trustee to intervene, and there was no specific injunction or order barring their claims.  (ELLIS and HOWSE, concurring.)

FirstMerit Bank, N.A. v. McEnery

FirstMerit Bank, N.A. v. McEnery
Illinois Appellate Court
Civil Court
Collections
Citation
Case Number: 
2020 IL App (3d) 180287
Decision Date: 
Tuesday, April 14, 2020
District: 
3d Dist.
Division/County: 
Will Co.
Holding: 
Affirmed (as to No. 3-18-0287); reversed (as to No. 3-18-0584).
Justice: 
O'BRIEN

Two related cases consolidated on appeal: 1) 3rd-party respondents appealed a turnover order in judgment creditor's action to collect on a debt; and 2) unsuccessful bidder for the assets that were the subject of the turnover order appealed a postjudgment order denying his motion to compel judgment creditor to revoke bill of sale and issue a new bill of sale to the highest, fixed-dollar bid. As to first case:  no error in court order granting turnover order without an evidentiary hearing.Bank had a judgment against Defendant, the "Kiddyland Train" was Defendant's personal property ordered to be turned over to Bank to partially satisfy its judgment, Respondents had possession of Train, and this possession occurred after citation lien attached.  As to second case: court did not abuse its discretion in ordering Bank to sell Train in a commercially reasonable manner. No dispute that Bank's request that interested parties submit their best offers in writing by a sealed bid by a specified deadline, was a commercially reasonable manner. Wendt's $3500 over bid, or sharp bid, was not a valid bid, as it was not for a specific dollar amount. Thus, Bank's accepting of that bid was not just and equitable, as it unfairly preferred one bidder over another. Bank is directed to issue bill of sale to the bidder who submitted the highest specific bid.(WRIGHT, concurring; HOLDRIDGE, concurring in part and dissenting in part.)

Excecutive Order 214

Topic: 
Executive Order for notaries and witnesses

was issued by Governor Pritzker yesterday. It orders the following for the duration of the Gubernatorial Disaster Proclamation for COVIR-19:

(1) the requirement that a person must "appear before" a notary public commissioned under the Illinois Notary Public Act is satisfied if: the notary public performs a remote notarization via two-way audio-video communication technology; the notary public is physically within the State while performing the notarial act; and the transaction follows the guidance posted by the Illinois Secretary of State on its website;

(2) any act of witnessing required by Illinois law may be completed remotely by via two-way audio-video communication technology if specified requirements are met;

(3) specified provisions of the Electronic Commerce Security Act that prohibit electronic signatures on certain documents remain in full effect;

(4) notwithstanding any law or rule of the State to the contrary, absent an express prohibition in a document against signing in counterparts, all legal documents, including deeds, last wills and testaments, trusts, durable powers of attorney for property, and powers of attorney for health care, may be signed in counterparts by the witnesses and the signatory; a notary public must be presented with a fax or electronic copy of the document signature pages showing the witness signatures on the same date the document is signed by the signatory if the notary public is being asked to certify to the appearance of the witnesses to a document.

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Richards v. PAR, Inc.

Federal 7th Circuit Court
Richards v. PAR, Inc.
Civil Court
Fair Debt Collection Practices Act
Citation
Case Number: 
No. 19-1184
Decision Date: 
March 25, 2020
Federal District: 
S.D. Ind., Indianapolis Div.
Holding: 
Reversed and remanded

Dist. Ct. erred in granting defendant-debt collector’s motion for summary judgment in plaintiff-debtor’s action, alleging that defendant wrongfully repossessed her car in violation of Fair Debt Collection Practices Act (FDCPA). FDCPA makes it unlawful for debt collector to take non-judicial action to repossess property if there is no present right to possession of said property. While plaintiff conceded that she had defaulted on car loan, and that debt collector had security interest in said car, there was triable issue as to whether defendant had present right to possess plaintiff’s car, where Indiana law authorized non-judicial repossession only if repossession “proceeds without breach of the peace.” Here, record contained some evidence as to whether breach of peace occurred, where: (1) plaintiff loudly objected and threatened defendant’s agent during repossession of her car; and (2) agent called police, who handcuffed plaintiff so as to allow agent to tow car away and then released plaintiff after car had been towed away. As such, if breach of peace had occurred, agent was required to immediately stop and seek judicial remedy rather than proceed to tow car away.

Whitaker v. Wedbush Securities, Inc.

Whitaker v. Wedbush Securities, Inc.
Illinois Supreme Court
Civil Court
Uniform Commercial Code
Citation
Case Number: 
2020 IL 124792
Decision Date: 
Thursday, March 19, 2020
District: 
1st Dist.
Division/County: 
Cook Co.
Holding: 
Appellate court and circuit court reversed and remanded.
Justice: 
KILBRIDE

Plaintiffs opened commodity futures trading accounts which were transferred to different companies over time, and in 2014, 2 trading accounts were assigned to Defendant, a registered futures commission merchant and broker-dealer. Defendant si a financial institution which meets the definition of a bank in article 4A of Illinois UCC. Defendant processed 4 unauthorized wire transfers out of Plaintiffs' trading accounts over the course of less than 2 weeks.Defendant refused Plaintiffs' demand for return of transferred funds. Plaintiffs filed suit for fraudulent concealment and seeking refund of transferred funds under article 4A of UCC. (BURKE, GARMAN, KARMEIER, and THEIS, concurring.)

House Bill 4006

Topic: 
Subpoena process

(McDermed, R-Mokena) creates a process similar to the Mental Health and Developmental Disability Act that a party or attorney and the court must follow before serving or issuing a subpoena for records maintained by that Illinois Tollway Authority that may contain personally identifying information of tollway users.

It prohibits a party or attorney from serving a subpoena unless it is accompanied by a written court order or written consent of the tollway user whose records are being sought. It prohibits the court from issuing such an order unless the tollway user has written notice of the request for subpoena and an opportunity to be heard.

Any subpoena must contain the language that “The Authority shall not comply a subpoena for personally identifiable information unless the subpoena is accompanied by a written order that authorizes the issuance of the subpoena and the disclosure of records or communications or by the written consent of the person whose records are being sought.” 

House Bill 4006 has been assigned to House Judiciary Committee. 

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Senate Bill 3325

Topic: 
Indigent representation in civil matters

(Hastings, D-Frankfort) provides that an indigent person may retain counsel of his or her choosing to represent the indigent person, with leave of the court, and that counsel shall perform his or her duties without fees, charges, or reward. Scheduled for hearing March 3, 2020 in Senate Judiciary Committee. 
 

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Senate Bill 3417

Topic: 
Electronic conveyances

(Koehler, D-Peoria) amends the Conveyances Act to provide that if the Act requires information to be in writing or delivered in writing, or provides for consequences if it is not, an electronic record or electronic delivery satisfies that requirement. If the Act requires a deed, instrument, record, or other document or information to be executed, signed, or subscribed to in writing, an electronic signature or digital signature satisfies that requirement. Assigned to the Committee on Assignments.

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Senate Bill 3128

(Crowe, D-Wood River) amends the Criminal Code of 2012 concerning the offense of financial exploitation of an elderly person or a person with a disability. Expands the scope of "person who stands in a position of trust and confidence" to include a friend or acquaintance of the elderly person or person with a disability who is in a position of trust. Assigned to the Committee on Assignments. 
 

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