{ "id": 3440729, "name": "MIDWEST BANK & TRUST COMPANY, Plaintiff-Appellant, v. RONALD RODERICK et al., Defendants-Appellees", "name_abbreviation": "Midwest Bank & Trust Co. v. Roderick", "decision_date": "1985-03-29", "docket_number": "No. 84\u20141724", "first_page": "463", "last_page": "472", "citations": [ { "type": "official", "cite": "132 Ill. App. 3d 463" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "451 N.E.2d 19", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "115 Ill. App. 3d 729", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3556414 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/115/0729-01" ] }, { "cite": "26 N.E.2d 413", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "304 Ill. App. 596", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3307808 ], "opinion_index": 0, "case_paths": [ "/ill-app/304/0596-01" ] }, { "cite": "469 N.E.2d 180", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "103 Ill. 2d 294", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3152787 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-2d/103/0294-01" ] }, { "cite": "415 A.2d 773", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 7960375 ], "pin_cites": [ { "page": "780" } ], "opinion_index": 0, "case_paths": [ "/a2d/415/0773-01" ] }, { "cite": "438 N.E.2d 1345", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "1349" } ], "opinion_index": 0 }, { "cite": "108 Ill. App. 3d 376", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3010915 ], "weight": 3, "pin_cites": [ { "page": "381" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/108/0376-01" ] }, { "cite": "466 N.E.2d 1330", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "126 Ill. App. 3d 124", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3597626 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/126/0124-01" ] }, { "cite": "400 N.E.2d 1057", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "81 Ill. App. 3d 199", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3226586 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/ill-app-3d/81/0199-01" ] }, { "cite": "443 N.E.2d 731", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "111 Ill. App. 3d 165", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5438509 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ill-app-3d/111/0165-01" ] }, { "cite": "459 N.E.2d 951", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "99 Ill. 2d 376", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3163633 ], "opinion_index": 0, "case_paths": [ "/ill-2d/99/0376-01" ] }, { "cite": "444 N.E.2d 631", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "111 Ill. App. 3d 653", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5437547 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/ill-app-3d/111/0653-01" ] }, { "cite": "427 N.E.2d 94", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "86 Ill. 2d 188", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5469637 ], "opinion_index": 0, "case_paths": [ "/ill-2d/86/0188-01" ] }, { "cite": "193 Cal. Rptr. 322", "category": "reporters:state", "reporter": "Cal. Rptr.", "opinion_index": 0 }, { "cite": "145 Cal. App. 3d 204", "category": "reporters:state", "reporter": "Cal. App. 3d", "case_ids": [ 2101428 ], "opinion_index": 0, "case_paths": [ "/cal-app-3d/145/0204-01" ] }, { "cite": "414 N.E.2d 1079", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "91 Ill. App. 3d 481", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3149827 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/ill-app-3d/91/0481-01" ] }, { "cite": "458 N.E.2d 177", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "180" } ], "opinion_index": 0 }, { "cite": "120 Ill. App. 3d 236", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3594992 ], "weight": 2, "pin_cites": [ { "page": "241" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/120/0236-01" ] }, { "cite": "468 N.E.2d 184", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "127 Ill. App. 3d 203", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3562991 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/127/0203-01" ] }, { "cite": "430 N.E.2d 139", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "102 Ill. App. 3d 524", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3075336 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/102/0524-01" ] }, { "cite": "465 N.E.2d 658", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "124 Ill. App. 3d 1082", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3429578 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/ill-app-3d/124/1082-01" ] }, { "cite": "157 N.E.2d 50", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "16 Ill. 2d 201", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2760895 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/ill-2d/16/0201-01" ] }, { "cite": "276 Ill. App. 432", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3251080 ], "pin_cites": [ { "page": "436" } ], "opinion_index": 0, "case_paths": [ "/ill-app/276/0432-01" ] }, { "cite": "334 N.E.2d 220", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1934, "pin_cites": [ { "page": "225" } ], "opinion_index": 0 }, { "cite": "31 Ill. App. 3d 514", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2706763 ], "year": 1934, "pin_cites": [ { "page": "520-21" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/31/0514-01" ] } ], "analysis": { "cardinality": 955, "char_count": 21119, "ocr_confidence": 0.763, "pagerank": { "raw": 2.4264432146182514e-07, "percentile": 0.8015289694495702 }, "sha256": "da8640a449c5028ec755e17d1e77003786a7d26ef1e3dd42970a950faec1cae2", "simhash": "1:a3a6e592aa4334df", "word_count": 3510 }, "last_updated": "2023-07-14T22:48:37.184543+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MIDWEST BANK & TRUST COMPANY, Plaintiff-Appellant, v. RONALD RODERICK et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE SULLIVAN\ndelivered the opinion of the court:\nPlaintiff appeals the dismissal of its action for judgment on the unpaid balance of a promissory note. It contends that section 9 \u2014 504 of the Uniform Commercial Code (Ill. Rev. Stat. 1983, ch. 26, par. 9\u2014 504(3)) did not require it to give defendant Roderick notice of the sale of collateral where Roderick\u2019s co-debtor, rather than plaintiff, sold the collateral. In the alternative, plaintiff contends that lack of notice is not a complete bar to a deficiency judgment, but instead gives rise to the rebuttable presumption that the value of the collateral was equal to the amount of the debt.\nIn March 1981, plaintiff loaned $80,000 to Connie\u2019s Pizza Systems, Inc. (Connie\u2019s), secured by all of Connie\u2019s equipment at its Lombard location. The promissory note was executed on behalf of Connie\u2019s by defendants Roderick and Stolfe \u2014 its secretary and president, respectively \u2014 who are also personally liable on the note. The debtors eventually stopped making payments, and Connie\u2019s recovered approximately $23,000 by selling some of its equipment. Plaintiff, after applying the proceeds of that sale to the loan, brought an action against Roderick and Stolfe seeking judgment for the amount of the loan outstanding plus interest. Stolfe was never served, and Roderick moved to dismiss \u2014 alleging that the bank repossessed and sold the collateral \u25a0without notifying him of the sale. The trial court granted Roderick\u2019s motion, and this appeal followed. After oral argument in this court, plaintiff moved to rearrange Stolfe as plaintiff-appellant, pursuant to Supreme Court Rule 366 (87 Ill. 2d R. 366), because it had assigned its interest in the note and in the remaining collateral to Stolfe.\nOpinion\nWe first address the motion to rearrange the parties. Supreme Court Rule 366 grants a reviewing court the discretionary-power to substitute or rearrange parties by reason of assignment, and we note that we are to do so on such terms as we deem just. 87 Ill. 2d R. 366(a)(2); see also Ill. Rev. Stat. 1983, ch. 110, par. 2 \u2014 1008(a).\nRoderick correctly observes that this court has not been properly informed of the details surrounding the assignment to Stolfe, and we have previously stated that attorneys owe this court a duty to present a record \u201cin such form that it may be understandingly read without wading through a maze of doubt as to what was done and what was intended in a given matter.\u201d (Norek v. Herold (1975), 31 Ill. App. 3d 514, 520-21, 334 N.E.2d 220, 225, quoting Vick v. Illinois Banker\u2019s Life Association (1934), 276 Ill. App. 432, 436.) This well-established principle is equally applicable to the present situation, where the bank is asking us to exercise our discretion on a motion filed after oral argument without providing us with information necessary for us to determine whether there should be such a rearrangement. Taking into consideration the scarcity of facts before us concerning the assignment, the nature of the original notice issue, and the fact that nothing further needs to be done in this appeal by the parties, we believe it is more appropriate to proceed with the parties as presently aligned, and we therefore deny plaintiff\u2019s motion to rearrange defendant Stolfe as plaintiff-appellant.\nIn addition to opposing plaintiff\u2019s motion to rearrange, Roderick also asks this court to dismiss the appeal as moot. He argues in his response to the motion to rearrange that Stolfe may properly bring an action for contribution, but \u2014 as co-maker \u2014 cannot maintain an action on the note. Interestingly, this argument demonstrates the necessity of proceeding with this appeal as briefed, because an action for contribution does not exist unless the party who brings the action paid more than his share of the joint indebtedness or would be liable to the original plaintiff for the debt. (Cunningham v. Lawrence (1959), 16 Ill. 2d 201, 157 N.E.2d 50; see also Roberts v. Heilgeist (1984), 124 Ill. App. 3d 1082, 465 N.E.2d 658.) Thus, even if we were to find that this appeal is moot, a finding which we do not make, we could not dismiss this appeal and leave in effect an erroneous order which might adversely affect the rights of the parties. See Kohan v. Rimland School for Autistic Children (1981), 102 Ill. App. 3d 524, 430 N.E.2d 139.\nAlthough we will not go into an extensive discussion of the other defenses raised by Roderick at this time, we do note that \u2014 as co-maker \u2014 he expressly consented to any renewal, extension, or modification of the note and, on the basis of such language in the note, the defense of discharge (Ill. Rev. Stat. 1983, ch. 26, par. 3 \u2014 601) upon which Roderick also relies in asking for dismissal may not be available to him. (See American National Bank v. Warner (1984), 127 Ill. App. 3d 203, 468 N.E.2d 184.) We therefore cannot find, on the record before us, that this appeal must be dismissed, and we will not speculate regarding other defenses available to Roderick. Upon remand, it is within the discretion of the trial court to allow Stolfe to be substituted as plaintiff pursuant to section 2 \u2014 1008 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 \u2014 1008), and any defenses available to Roderick would more appropriately be addressed at the trial court level after the facts surrounding the assignment are known.\nWe proceed, then, to plaintiff\u2019s contention that it was not required by the statute to give notice of the sale of the collateral where it was not the seller. Roderick argues that plaintiff cannot collect a deficiency judgment because the statute which establishes the secured party\u2019s right to dispose of collateral after default also provides that \u201creasonable notification of the time and place of any public sale or reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor\u201d (Ill. Rev. Stat. 1983, ch. 26, par. 9 \u2014 504(3)), and the parties here agree that no notice was sent by plaintiff to Roderick, a debtor. We note also that in his affidavit, Roderick stated he was vice president and secretary of Connie\u2019s at the time the collateral was sold and his mailing address was Evergreen, Colorado; that he received correspondence regarding the note from plaintiff at his Colorado address; but that he received no notice of the sale of the equipment.\nThe record indicates that Roderick\u2019s argument and the subsequent trial court decision emphasized the duty of a selling-secured-party to notify each of the debtors. Plaintiff does not disagree with such an interpretation, and the issue on appeal here is whether the notice requirement of section 9 \u2014 504(3) applies to a secured party who does not actually dispose of the collateral. We believe it is clear that section 9 \u2014 504 applies only to a disposition effected by the secured party. The captions of the Uniform Commercial Code, as enacted by the Illinois legislature, are parts of the Act (Ill. Rev. Stat. 1983, ch. 26, par. 1\u2014 109), and the caption of section 9 \u2014 504 states: \u201cSecured party\u2019s right to dispose of collateral after default \u2014 Effect of disposition.\u201d (Emphasis added.) (Ill. Rev. Stat. 1983, ch. 26, par. 9 \u2014 504.) Nowhere in the body of the section is reference made to disposition by any other party, and since \u201c[a] construction of a statute, variant from the strict and literal meaning, is justified only upon the ground that it effectuates the intention of the legislature manifestly disclosed by a consideration of the whole context\u201d (emphasis added) (Davis v. Bughdadi (1983), 120 Ill. App. 3d 236, 241, 458 N.E.2d 177, 180), we do not believe section 9 \u2014 504 may be interpreted to include dispositions otherwise not within the statute which are neither specifically referred to in the body of the statute nor encompassed by the caption.\nAlthough our research has found little case law which specifically addresses the application of the notice requirement where the collateral was not disposed of by the secured party, courts presented with the issue have generally rejected such an interpretation with little comment. (See Lewis v. Mount Greenwood Bank (1980), 91 Ill. App. 3d 481, 414 N.E.2d 1079; see also Krueger v. Bank of America National Trust & Savings Association (1983), 145 Cal. App. 3d 204, 193 Cal. Rptr. 322.) Apparently, the parties\u2019 search was even less fruitful, because no authority whatsoever has been cited by either party. At oral argument, Roderick referred us to cases cited in his brief which concerned impairment of collateral, but we note that the defense of impairment of collateral (Ill. Rev. Stat. 1983, ch. 26, par. 3 \u2014 606) is not available to Roderick as a co-maker of the note (Main Bank v. Baker (1981), 86 Ill. 2d 188, 427 N.E.2d 94), and thus the analogy offered by Roderick lends little support to his argument.\nRoderick himself agrees with the basic interpretation of section 9 \u2014 504, because he initially brought his motion to dismiss based on an allegation that the secured creditor repossessed the collateral and began to sell it. When he discovered that the bank had merely consented to the debtor\u2019s request to be allowed to sell the equipment, however, Roderick attempted to bring the sale within the statute with two alternative arguments.\nHis first argument is that the section 9 \u2014 504(3) notice requirements cover \u201cother intended dispositions\u201d and therefore cover a situation where a party other than the secured creditor makes the disposition, including, as here, the debtor\u2019s selling the equipment in an attempt to pay the loan. However, we may not adopt an interpretation of the statute which would have the effect of making the legislature say what it has not said (Davis v. Bughdadi (1983), 120 Ill. App. 3d 236, 458 N.E.2d 177), and the language of section 9 \u2014 504 neither expressly indicates nor implicitly implies that the legislature intended the interpretation advanced by Roderick.\n\u201cA statute which directs responsibility to an identifiable person speaks with greater force and vigor. To say that \u2018[w]henever a structure is in disrepair it shall be destroyed\u2019 requires an unnecessary amount of conjecture and interpretation. Who shall determine when it is in disrepair? Who shall destroy it? The draftsman should have determined these questions and should specify with particularity the person upon whom the responsibility is to be placed.\nThe first responsibility of a draftsman is to determine what particular individuals must comply with the statutory directive. This requires first, precision of thought and second, exactness of expression.\u201d (1A A. Sutherland, Statutory Construction sec. 21.07 (4th ed. 1972).)\nHere, the statute provides: \u201cA secured party after default may sell, lease, or otherwise dispose of any or all of the collateral ***.\u201d (Emphasis added.) (Ill. Rev. Stat. 1983, ch. 26, par. 9 \u2014 504(1).) The language of the statute clearly indicates that the section applies only to other dispositions which are made by the secured party, and nothing in the statutory definition of \u201csecured party\u201d expands such application. (See Ill. Rev. Stat. 1983, ch. 26, par. 9 \u2014 105(l)(m), and official comment thereto.) Although Roderick refers to the drafters\u2019 use of the words \u201cother disposition,\u201d \u201cother intended disposition,\u201d or \u201cotherwise disposed of\u201d in section 9 \u2014 504 without repetition of \u201csecured party\u201d as the subject of the sentence, it is well established that a word or phrase is presumed to have the same meaning throughout a statute. (Borg v. Village of Schiller Park Police Pension Board (1982), 111 Ill. App. 3d 653, 444 N.E.2d 631, affd (1984), 99 Ill. 2d 376, 459 N.E.2d 951.) As previously discussed, the statute caption also specifically referred to action taken by the secured creditor, and we believe the only reasonable interpretation of the statute is that \u201cother disposition\u201d is intended to encompass all types of financial arrangements rather than to extend the responsibility of the secured party. See generally, 1A U.C.C. Serv. (MB) sec. 8.04[2][a][iv] (1984).\nRoderick\u2019s second argument is that by consenting to the sale and accepting the proceeds thereof, plaintiff\u2019s participation was such that it should be considered the seller of the collateral for purposes of the notice requirement. We note, however, that although the notice requirement calls for very specific notification, including details such as time and place of sale (Ill. Rev. Stat. 1983, ch. 26, par. 9 \u2014 504(3); see, e.g., Staley Employee Credit Union v. Christie (1982), 111 Ill. App. 3d 165, 443 N.E.2d 731; Spillers v. First National Bank (1980), 81 Ill. App. 3d 199, 400 N.E.2d 1057; but see Ford Motor Credit Co. v. Jackson (1984), 126 Ill. App. 3d 124, 466 N.E.2d 1330), Roderick wishes us to require a secured creditor to notify a debtor of a sale made by his co-debtor despite the absence of a corresponding duty in the default provisions which would require the selling debtor to give secured-creditor detailed information about its activities. We believe such an interpretation would be unreasonable and \u201c[i]t has been called a golden rule of statutory interpretation that unreasonableness of the result produced by one among alternative possible interpretations of a statute is reason for rejecting that interpretation in favor of another which would produce a reasonable result.\u201d (2A A. Sutherland, Statutory Construction sec. 45.12 (4th ed. 1984).) In our view, the interpretation advanced by Roderick would also require the secured party to insure that every aspect of the sale be commercially reasonable despite the inability of the bank to control the actions of the debtor. Even in State National Bank v. Northwest Dodge, Inc. (1982), 108 Ill. App. 3d 376, 438 N.E.2d 1345, in which the court granted a high degree of protection for the debtor by following the old absolute-bar rule, the court stated:\n\u201cThe burdens placed on the creditor under the Code are minimal, while the results of his noncompliance may be very onerous to the debtor. *** We are unable to see any unfairness in protecting the debtor\u2019s rights to the exclusion of those of the creditor when the creditor has been placed in such a high degree of control over the relationship and carries such a small burden inorder [sic] to gain the advantages of the Statute.\u201d (108 Ill. App. 3d 376, 381, 438 N.E.2d 1345, 1349, quoting Wilmington Trust Co. v. Conner (Del. 1980), 415 A.2d 773, 780.)\nHere, the burden placed on the creditor would not be minimal but could very well be impossible to meet. In light of the above, we reject the interpretation advanced by Roderick as being unfair and unreasonable. Imposition of such a burden on the secured party would actually impede a debtor\u2019s ability to work out its own financial difficulties. See 1A U.C.C. Serv. (MB) sec. 8.01A[2][b] (1984).\nWe also observe that while the purpose of the default provisions seems to be the prevention of overreaching on the part of the secured party after default (see generally Ill. Ann. Stat., ch. 26, par. 9 \u2014 501, U.C.C. Comment 1, at 321 (Smith-Hurd 1974)), Roderick asks us to expand the protection afforded him in section 9 \u2014 504 to include protection from Roderick\u2019s own business arrangements and associates. We note, however, that even if plaintiff had complied with the statutory notice requirement, Roderick would be in no better position. He correctly states in his brief that the parties may determine the standards by which the fulfillment of their rights and duties under part 5 of article 9 is to be determined if such standards are not manifestly unreasonable (see Ill. Rev. Stat. 1983, ch. 26, par. 9 \u2014 501(3)), and he points out that the parties here agreed that all debtors would receive notice by mail at least five days before the sale or disposition. He neglects to point out, however, that the note also provides that reasonable notice would be met if the notice was mailed to the address of the debtors as shown on the note, or to any other address of the debtors appearing on the records of plaintiff. The only address listed on the note is the business address of Connie\u2019s Pizza, at 920 Ridge Avenue in Lombard, and thus, even if plaintiff had sent statutory notice \u2014 which we believe it was not required to do \u2014 Roderick would not have been protected from the actions of his own corporation.\nAdditionally, in its recent decision which rejected the absolute-bar rule in favor of the rebuttable-presumption rule where the selling party has sold the collateral without notice to all debtors, the Illinois Supreme Court indicated that the absolute-bar rule provided a windfall for the debtor and arbitrarily penalized the creditor (First Galesburg National Bank & Trust Co. v. Joannides (1984), 103 Ill. 2d 294, 469 N.E.2d 180), and we believe such a result is equally undesirable with respect to the notice requirement. This is particularly so in the present case, where the windfall for Roderick would seem to result either from his own lack of attention to his business or from his own business arrangements and partners rather than from any overreaching on the part of the secured creditor. There is no basis in the statute for the expanded application proposed by defendant, and we therefore cannot apply the statutory notice requirement to a secured creditor who did not actually make the sale but merely consented to a debtor\u2019s sale of the collateral and then applied the proceeds of that sale to the outstanding loan.\nFinally, we observe that it is possible to approach this case from an entirely different perspective. The default provisions of article 9 allow a secured creditor to pursue any other remedies he may have (Ill. Rev. Stat. 1983, ch. 26, par. 9 \u2014 501(1); see also Ill. Ann. Stat., ch. 26, par. 9 \u2014 501, U.C.C. Comment b, at 322 (Smith-Hurd 1974)), and the secured creditor is therefore not required to proceed under part 5 of article 9. Here, plaintiff had the contractual right to demand payment on the note from Roderick, a co-maker (Ill. Rev. Stat. 1983, ch. 26, par. 3 \u2014 413), and where it neither repossessed nor sold the collateral, it appears that plaintiff did not elect to proceed under article 9, but, rather, proceeded under article 3. We have previously stated that it is the exercise of the article 9 right to dispose of collateral which obligates a secured creditor to comply with the notice provision (State National Bank v. Northwest Dodge, Inc. (1982), 108 Ill. App. 3d 376, 438 N.E.2d 1345), and under either analysis, then, the bank was under no obligation to notify Roderick of Connie\u2019s sale of its equipment.\nFor the foregoing reasons, the judgment of the trial court is reversed, and this cause is remanded for further proceedings consistent with this opinion.\nReversed and remanded.\nMEJDA, P.J., and LORENZ, J., concur.\nIn support of his argument, Roderick refers us to Gillham v. Troeckler (1940), 304 Ill. App. 596, 26 N.E.2d 413, where the co-maker initiated suit on the note after the assignment. The critical time period, however, is the commencement of the suit (see Locks v. North Toume National Bank (1983), 115 Ill. App. 3d 729, 451 N.E.2d 19), and we are not referred to any authority which states that a subsequent transfer by assignment renders the issue on appeal moot. The general rule is that transfer of an instrument vests in the transferee such rights as the transferor had. (Ill. Rev. Stat. 1983, ch. 17, par. 602; Ill. Rev. Stat. 1983, ch. 26, par. 3 \u2014 201.) The effect of the subsequent assignment is more appropriately decided in the trial court after briefing and argument by the parties.\nRoderick argued in the trial court that failure to give notice constituted an absolute bar to a deficiency judgment. After the trial court ruling in the present case, however, the Illinois Supreme Court rejected the absolute-bar concept in favor of the rebuttable-presumption rule, which allows the creditor who sold the collateral without notice to rebut the presumption that the value of the collateral sold was equal to the indebtedness. (First Galesburg National Bank & Trust Co. v. Joannides (1984), 103 Ill. 2d 294, 469 N.E.2d 180.) Although the bank here argues that it should have been allowed to file an amended complaint in keeping with the rebuttable-presumption rule, we do not reach that issue as a result of our finding on the notice requirement.\nIt is not significant for purposes of the issue on appeal that the bank did not join Connie\u2019s as a defendant in the action or that it did not serve Stolfe, because the bank had the right to proceed against only one of the co-makers. Ill. Rev. Stat. 1983, ch. 17, par. 606; Ill. Rev. Stat. 1983, ch. 110, par. 2 \u2014 403.", "type": "majority", "author": "JUSTICE SULLIVAN" } ], "attorneys": [ "Mardyth E. Pollard, Douglas Drenk, and David Drenk, all of Guerard, Konewko & Drenk, Ltd., of Chicago, for appellant.", "Raymond A. Fylstra and Stephen H. Pugh, Jr., both of Chapman & Cutler, of Chicago, for appellee Ronald Roderick." ], "corrections": "", "head_matter": "MIDWEST BANK & TRUST COMPANY, Plaintiff-Appellant, v. RONALD RODERICK et al., Defendants-Appellees.\nFirst District (5th Division)\nNo. 84\u20141724\nOpinion filed March 29, 1985.\nMardyth E. Pollard, Douglas Drenk, and David Drenk, all of Guerard, Konewko & Drenk, Ltd., of Chicago, for appellant.\nRaymond A. Fylstra and Stephen H. Pugh, Jr., both of Chapman & Cutler, of Chicago, for appellee Ronald Roderick." }, "file_name": "0463-01", "first_page_order": 485, "last_page_order": 494 }