Commercial Banking, Collections, and Bankruptcy

E.T. Products, LLC v. D.E. Miller Holdings, Inc.

Federal 7th Circuit Court
E.T. Products, LLC v. D.E. Miller Holdings, Inc.
Civil Court
Contracts
Citation
Case Number: 
No. 16-1204
Decision Date: 
September 20, 2017
Federal District: 
N.D. Ind., Hammond Div.
Holding: 
Affirmed

In action to enforce provisions of covenant not to compete that were part of defendants’ agreement to sell business to plaintiff, Dist. Ct. did not err in finding that instant covenant, which prohibited defendants from providing assistance to plaintiff’s competitors for 5-year period for entire North American continent, was enforceable, but that defendants, who only assisted third-party that distributed plaintiff’s products, did not violate said covenant. Noncompete agreements that concern sales of businesses and usually involve parties with relatively equal bargaining power stand in better stead than similar noncompete provisions in employment contracts, and instant restrictions on defendants’ activities after sale of business were enforceable under Indiana law. However, terms of agreement only prohibited defendants from assisting plaintiff’s competitors. As such, their assistance to distributor of plaintiff’s products did not violate covenant since distributor was not competitor to plaintiff.

Public Act 100-478

Topic: 
Adult dependent child

(Andersson, R-Geneva; Schimpf, R-Murphysboro) amends statutory awards from a decedent's estate to an "adult dependent child."

(1) It creates a separate statutory award for adult dependent child for at least $5,000, but it gives the court discretion to award whatever sum it deems reasonable or agreed upon by the surviving spouse and representative of the decedent's estate or affiant under a small-estate affidavit.

(2) It links the statute to the adult child's financial dependency on the decedent family member.

(3) It creates a process to make the statute work more effectively by requiring the adult child, adult child's agent or guardian, or other adult on behalf of the adult child to provide written notice to the representative or affiant asserting the adult dependent child's financial dependency on the decedent after receipt of a probate notice advising them of this potential award.

Effective June 1, 2018.

View Full Text of Legislation

Ratajczak v. Beasley Solutions Ltd.

Federal 7th Circuit Court
Ratajczak v. Beasley Solutions Ltd.
Civil Court
RICO
Citation
Case Number: 
Nos. 16-3418 et al. Cons.
Decision Date: 
August 31, 2017
Federal District: 
E.D. Wisc.
Holding: 
Affirmed

Dist. Ct. did not err in dismissing plaintiff-buyer’s RICO lawsuit against defendants-sellers of whey protein concentrate alleging that defendants altered said concentrate by adding urea to make it appear that protein levels in concentrate were higher than they actually were. Plaintiff failed to produce any evidence of damages arising out of defendants’ misconduct. Fact that plaintiff claimed that it might be subject to future lawsuits from its customers arising out of defendants’ doctored product was too speculative to support claim for damages under RICO. Also, Dist. Ct. did not err in granting intervening plaintiffs-insurers’ request for declaration that they had no duty to indemnify or defend defendants in any breach of warranty claim arising out of defendants’ alteration of concentrate since defendants’ adulteration of concentrate was deliberate act that did not fit within policy’s definition of “accident.” Too, defendants’ purchase of policy to indemnify them for loss caused by any non-fraudulent breach of warranties made to plaintiff did not require that insurer cover said losses where defendants had settled any relevant claims with plaintiff without insurance company’s knowledge.

Andy Mohr Truck Center, Inc. v. Volvo Trucks North America

Federal 7th Circuit Court
Andy Mohr Truck Center, Inc. v. Volvo Trucks North America
Civil Court
Franchise
Citation
Case Number: 
Nos. 16-2788 & 16-2839 Cons.
Decision Date: 
August 28, 2017
Federal District: 
S.D. Ind., Indianapolis Div.
Holding: 
Affirmed and reversed in part

Record failed to contain sufficient evidence to support plaintiff-franchisee’s claim under Indiana Franchise Disclosure Act, alleging that defendant-franchisor “unfairly discriminated” against plaintiff by providing more favorable pricing concessions on truck purchases to other franchise dealerships than it gave to plaintiff during process of selling trucks manufactured by defendant. Applicable franchise agreement allowed defendant discretion when awarding concessions, and plaintiff failed to show that unexplained difference in treatment with respect to 13 transactions at issue in case was “unfair” or otherwise was not norm among franchisees. Result might be different had plaintiff been able to show consistent pattern of offering worse concessions to plaintiff than it offered to others for same truck purchase by same customer. Also, Dist. Ct. did not err in granting plaintiff’s motion for summary judgment on defendant’s claim that plaintiff breached dealership agreement by failing to build new facility, where said alleged promise was not contained in written dealership agreement that had integration clause.

Public Act 100-291

Topic: 
Objections to jurisdiction over the person

(Thapedi, D-Chicago; Raoul, D-Chicago) amends § 2-301 of the Code of Civil Procedure by changing the exception to the statute's general rule. The general rule is that a party may object to the court's jurisdiction (without waiving an objection to the court's jurisdiction) over the party's person by filing a motion to dismiss the entire proceeding or a motion to quash service of process, but the party must do this before they file any other pleading.

The Act's exception to this general rule of waiver allows a motion for extension of time to answer or otherwise plead or a motion filed under § 2-1301, § 2-1401, and § 2-1401.1

But it requires any motion objecting to the court's jurisdiction over the party's person under § 2-301 to be filed within 60 days of the court's order disposing of the initial motion filed under these three sections. A party may combine these motions without waiving the objection to jurisdiction.

Effective January 1, 2018.

View Full Text of Legislation

Public Act 100-292

Topic: 
Omnibus condo legislation

(Thapedi, D-Chicago; Raoul, D-Chicago) makes numerous changes affecting community associations and condos. Among other changes, it amends the statute governing the examination of a condo association's records. In addition, it authorizes reasonable attorney's fees and costs to a unit member who prevails in an enforcement action if seeking to examine or copy (1) all contracts to which the association is a party or under which it or the unit owners have obligations and (2) the books and records for the association's current fiscal year and the last 10 fiscal years. It also reduces the time in which an association must make these records available from 30 business days to 10 business days or it will be considered a denial of the request.

It also amends the right to examine and copy the ballot and proxy information and current listing of the names, addresses, email addresses, telephone numbers, and weighted vote of all voting members. A member must have a purpose that relates to the association to exercise this right, and the board may ask for the member to so certify. The member may not seek these records for a "commercial purpose," which is defined as use in any form for sale, resale, or solicitation or advertisement for sales or services.

A member may recover attorney's fees and costs only if a court finds the board of directors acted in bad faith in denying the request. It also makes it discretionary instead of mandatory whether the association must charge for the retrieval or copying of these records.

Effective January 1, 2018.

View Full Text of Legislation

Public Act 100-416

Topic: 
Installment Sales Contract Act

(Koehler, D-Peoria; Gordon-Booth, D-Peoria) creates the Installment Sales Contract Act. It will require that sales of residential real estate by installment contract conform to the Act and that vendors in installment real estate contracts foreclose using Illinois foreclosure law. "Residential real estate" means real estate with a dwelling structure excluding property that is sold as a part of a tract of land consisting of four acres or more that is zoned for agricultural purposes.

It applies to sellers that enter into an installment sale contract more than three times during a 12-month period to sell residential real estate. Within 10 days of the date of sale the seller must record the contract or a memorandum of the contract with the recorder of deeds. It prohibits the installment sale contract from forbidding the buyer to record the contract or a memorandum of the contract. It makes it a violation of the Consumer Fraud and Deceptive Business Practices Act to knowingly violate the Installment Sales Contract.

Effective January 1, 2018.

View Full Text of Legislation

Public Act 100-212

Topic: 
Illinois Administrative Procedure Act

(Barickman, R-Bloomington; Andersson, R-Geneva) ensures that the appeals by citizens in administrative review actions are not thrown out of court for a scrivener's error that is called a "misnomer."

(1) It requires that final administrative orders list all of the parties of record together with their last known address of record. The final order must also include whether there are any agency rules requiring a motion for reconsideration as a part of obtaining a reviewable final administrative decision and, if so, the citation to the rule.

(2) It prohibits an action for administrative review to be dismissed for lack of jurisdiction based on the misnomer of any agency that is properly served with summons issued in the action within the applicable time limits. It also prohibits dismissal for failure to perfectly name an agent if a timely action of administrative review has been filed that identifies the final administrative decision under review and makes a good faith effort to properly name the administrative agency.

(3) It allows a court to correct misnomers for an erroneous identification of the administrative agency that was made in good faith.

Effective August 18, 2017.

View Full Text of Legislation

Caudill Seed & Warehouse Co., Inc. v. MMR Farms, LLC

Federal 7th Circuit Court
Caudill Seed & Warehouse Co., Inc. v. MMR Farms, LLC
Civil Court
Issue Preclusion
Citation
Case Number: 
No. 16-4072
Decision Date: 
August 18, 2017
Federal District: 
S.D. Ind., New Albany Div.
Holding: 
Affirmed

In action seeking to collect on debt arising out of reaffirmation agreement entered in Bankruptcy Ct., where debtor agreed to pay plaintiff $285,000 for defaulted debt owed to plaintiff in exchange for plaintiff’s withdrawal of its request to have Bankruptcy Ct. deny debtor’s discharge of remaining debts in bankruptcy proceeding, Dist. Ct. did not err in allowing plaintiff to execute debt on land that had been fraudulently conveyed to third-party defendant (entity owned by debtor’s son) during bankruptcy proceedings in effort to avoid paying debtor’s creditors, including plaintiff. While third-party defendant conceded that land had been fraudulently conveyed, it argued that plaintiff was blocked from satisfying debt via execution on instant land by doctrine of issue preclusion, where plaintiff had entered into settlement agreement in Bankruptcy Ct. arising out of adversary proceeding that sought to pull land into bankruptcy estate. However, issue preclusion did not apply since: (1) issue preclusion requires entry of actual decision by judge that was necessary in prior litigation; and (2) issue regarding whether transfer of land was fraudulent conveyance was not actually litigated, but rather was settled and not decided by Bankruptcy Ct. Moreover, instant settlement agreement did not release third-party defendant from any potential fraudulent conveyance claim, and third-party defendant did not raise with Dist. Ct. in instant enforcement proceeding defense that it had been released from any such action.