{ "id": 3183746, "name": "CHICAGO CITY BANK & TRUST CO., Plaintiff-Appellant, v. ROBERT L. WILSON, Defendant-Appellee", "name_abbreviation": "Chicago City Bank & Trust Co. v. Wilson", "decision_date": "1980-06-27", "docket_number": "No. 79-1363", "first_page": "452", "last_page": "457", "citations": [ { "type": "official", "cite": "86 Ill. App. 3d 452" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "380 N.E.2d 526", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "63 Ill. App. 3d 639", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3335840 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/63/0639-01" ] }, { "cite": "356 N.E.2d 524", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "64 Ill. 2d 434", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5429683 ], "pin_cites": [ { "page": "437" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/64/0434-01" ] }, { "cite": "383 N.E.2d 1310", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "66 Ill. App. 3d 534", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3316152 ], "pin_cites": [ { "page": "541-42" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/66/0534-01" ] }, { "cite": "303 N.E.2d 541", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "14 Ill. App. 3d 813", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 3402394 ], "year": 1979, "pin_cites": [ { "page": "142-43" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/54/0141-01" ] }, { "cite": "395 N.E.2d 1131", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "77 Ill. App. 3d 343", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3290695 ], "year": 1977, "pin_cites": [ { "page": "347" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/77/0343-01" ] }, { "cite": "389 N.E.2d 182", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "70 Ill. App. 3d 1039", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5574965 ], "pin_cites": [ { "page": "1042" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/70/1039-01" ] }, { "cite": "395 N.E.2d 69", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "76 Ill. 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App. 3d", "case_ids": [ 2767898 ], "weight": 2, "pin_cites": [ { "page": "793-94" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/8/0789-01" ] } ], "analysis": { "cardinality": 633, "char_count": 12537, "ocr_confidence": 0.861, "pagerank": { "raw": 4.2717559426216474e-07, "percentile": 0.9157528102989788 }, "sha256": "388a8e507a25ebfe68e7a0ce1d067522c213417857ddcd75791f21357e334a41", "simhash": "1:8f9ea01832c3fcd4", "word_count": 2106 }, "last_updated": "2023-07-14T21:36:08.867369+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "CHICAGO CITY BANK & TRUST CO., Plaintiff-Appellant, v. ROBERT L. WILSON, Defendant-Appellee." ], "opinions": [ { "text": "Mr. JUSTICE MEJDA\ndelivered the opinion of the court:\nPlaintiff brought this action as assignee of a retail installment contract to recover a deficiency due thereon. Defendant counterclaimed for damages he allegedly suffered. Following a bench trial, the court denied plaintiff any deficiency and ordered plaintiff to return defendant\u2019s down payment, to pay defendant\u2019s reasonable attorney\u2019s fees, and to pay for defendant\u2019s personal property loss. Plaintiff\u2019s motion for a new trial was denied and this appeal followed.\nIn the complaint plaintiff alleged that it was the assignee of a retail installment sales contract which had been executed by defendant. A copy of the contract was attached to the complaint. The copy showed that defendant purchased a new motor vehicle from a car dealership and agreed to make monthly payments for it. The contract also provided for repossession and resale of the vehicle upon defendant\u2019s default and for payment of reasonable attorney\u2019s fees by defendant if the contract was placed for collection. The complaint alleged that defendant had defaulted under the contract, that the vehicle had been repossessed and sold at auction, and that after all proper credits were made to defendant, a deficiency of $2347.99 including attorney\u2019s fees existed.\nIn his pleadings defendant admitted that he executed the contract in question and that it had been assigned to plaintiff but denied all of plaintiff\u2019s remaining allegations. Defendant counterclaimed for the price of the vehicle, for a calculator which was in the vehicle when it was repossessed and had not been returned to him, for attorney\u2019s fees, and for punitive damages. He alleged that he had attempted to make the required payments to plaintiff but his attempts were rejected, that plaintiff\u2019s agents seized the vehicle and threatened defendant and that their conduct was wilful, malicious, and in total disregard of defendant\u2019s contractual rights.\nThe case went to trial, but no transcript of the proceedings is contained in the record since, as plaintiff concedes, none was preserved. A week after trial the judge made his findings, a transcript of which is included in the record. The findings from the evidence can be summarized as follows: (1) the new vehicle was bought in December 1976 and was sold pursuant to the contract at a private dealer\u2019s auction in April 1977; (2) notice of the private auction was given to defendant; (3) plaintiff had a right to repossess the vehicle and did not act maliciously; (4) defendant did not show any attempt to redeem the vehicle or to protect his interest; (5) that according to the case of Tauber v. Johnson (1972), 8 Ill. App. 3d 789, 291 N.E.2d 180, a presumption exists that the value of the security is at least equal to the balance of the debt; (6) the amount realized at auction was approximately $3000 less than the vehicle originally cost; (7) in view of the recency of the original sale, it must be presumed that the value of the vehicle exceeded the amount due on the contract; (8) plaintiff had the burden of showing that the sale was commercially reasonable; and (9) the sale was not commercially reasonable. Based on these findings the court denied plaintiff any deficiency and denied defendant punitive damages on his counterclaim but ordered plaintiff to return defendant\u2019s down payment of $1900, to pay $325 for the calculator, and to pay defendant attorney\u2019s fees in the amount of $300. It is from this judgment that plaintiff appeals.\nOpinion\nPlaintiff contends that the denial of the deficiency by the trial court was erroneous as a matter of law and was against the manifest weight of the evidence. It also challenges the judgment entered for defendant on his counterclaim as being against the manifest weight of the evidence and erroneous as a matter of law. Defendant asserts that plaintiff has failed to provide this court with an adequate record on review and that all reasonable presumptions in favor of the judgment should be indulged to sustain the judgment of the trial court.\nPlaintiff has failed to provide a transcript of the trial proceedings or an acceptable substitute pursuant to Supreme Court Rule 323. (111. Rev. Stat. 1977, ch. 110A, par. 323.) It is well established, as defendant urges, that the burden is on the plaintiff, as appellant, to present a sufficiently complete record of the trial proceedings to establish the claimed error and that in the absence of an adequate record on appeal, it is presumed that the order entered conforms to the law and is based upon a sufficient factual basis. Mangiamele v. Terrana (1976), 42 Ill. App. 3d 305, 307, 355 N.E.2d 765; Student Transit Corp. v. Board of Education (1979), 76 Ill. App. 3d 366, 370, 395 N.E.2d 69.\nThe absence of a report of proceedings has been regarded as depriving a reviewing court of a basis for review of issues whose merits depend on the omitted matters, such as questions of the sufficiency of the evidence presented at trial. (Rosenblatt v. Michigan Avenue National Bank (1979), 70 Ill. App. 3d 1039, 1042, 389 N.E.2d 182.) Where the principal issue raised on appeal involves a question of law, the absence of a transcript or other substitute will not bar review. (Woodfield Ford, Inc. v. Akins Ford Corp. (1979), 77 Ill. App. 3d 343, 347, 395 N.E.2d 1131; Maynard v. Parker (1977), 54 Ill. App. 3d 141, 142-43, 369 N.E.2d 352, aff'd (1979), 75 Ill. 2d 73, 387 N.E.2d 298; see Van Walsen v. Blumenstock (1978), 66 Ill. App. 3d 245, 247, 383 N.E.2d 776.) However, a presumption in favor of the regularity of the trial court proceedings exists and is not overcome until it is shown that error has been committed. (Witvoet v. Berry (1977), 48 Ill. App. 3d 485, 488, 359 N.E.2d 1117; see Rosenblatt, at 1042.) Because plaintiff has failed to include a copy of the transcript of the evidence presented at trial or a suitable alternative, we are unable to review the evidence to determine whether the trial court\u2019s judgment was against the manifest weight of the evidence (see Investors Shelter Corp. v. Chernick (1978), 58 Ill. App. 3d 446, 447, 374 N.E.2d 786; Shoemaker v. Geiger (1975), 30 Ill. App. 3d 27, 29, 331 N.E.2d 637) and must confine our review to the alleged errors of law.\nPlaintiff does not question the sufficiency of the evidence presented at trial but contends that the error of law is established by the findings of the trial court which were transcribed and included in the record. From the findings made by the court, plaintiff contends that it is entitled to a deficiency as a matter of law.\nThe established rule in Illinois is that the creditor bears the burden of proving compliance with the notice provisions of section 9 \u2014 504 of the Uniform Commercial Code (111. Rev. Stat. 1977, ch. 26, par. 9 \u2014 504) before recovering a deficiency judgment. (Lake Shore National Bank v. McCann (1979), 78 Ill. App. 3d 580, 584, 396 N.E.2d 1301; General Foods Corp. v. Hall (1976), 39 Ill. App. 3d 147, 153, 349 N.E.2d 573; Tauber v. Johnson (1972), 8 Ill. App. 3d 789, 793-94, 291 N.E.2d 180.) Although a creditor\u2019s failure to provide adequate notice does not necessarily bar a deficiency judgment, such failure has been held to raise a presumption that the value of the secured collateral is equal to the amount of the debt and to place on the creditor the additional burden of rebutting the presumption and proving that the amount collected from the sale was commercially reasonable. (Lake Shore National Bank; General Foods Corp.; Tauber.) Additionally, section 9 \u2014 507(1) of the Uniform Commercial Code (111. Rev. Stat. 1977, ch. 26, par. 9 \u2014 507(1)) provides that the debtor has a right to recover from the secured party any loss caused by the failure to comply with the notice provisions.\nIn the instant case the trial court found that \u201cthere is no question that notice was given, that they gave notice of a private sale.\u201d With that proof, plaintiff was entitled to the deficiency judgment. The trial court, however, misconstrued the Tauber case as creating a presumption that the value of the security was equal to the amount due on the contract in all cases and not only in those cases in which the creditor failed to give the debtor adequate notice of the sale. The court implicitly required plaintiff to establish the commercial reasonableness of the price received and found that the price received was not commercially reasonable. This placed an additional burden on plaintiff and one which the aforementioned cases do not require. In so doing, the court committed an error of law. Plaintiff was entitled to the deficiency judgment upon the trial court\u2019s finding that notice was given.\nIn addition, the price element alone did not establish the commercial unreasonableness of the instant sale. Mere inadequacy of price in the absence of fraud, mistaken or illegal practices does not vitiate a sale. (In re Application of Bickel (1973), 14 Ill. App. 3d 813, 815, 303 N.E.2d 541.) This is recognized in section 9 \u2014 507(2) of the Uniform Commercial Code (Ill. Rev. Stat. 1977, ch. 26, par. 9 \u2014 507(2)), which provides in pertinent part:\n\u201cThe fact that a better price could have been obtained by a sale at a different time or in a different method from that selected by the secured party is not of itself sufficient to establish that the sale was not made in a commercially reasonable manner.\u201d\nIn Bickel, the sale of the security brought only about 67 percent of its equity value. In upholding the sale the court recognized that property does not bring its full value at forced sales and that a debtor must expect to take a loss. In this case the cash price of the vehicle when new was $7674 and $4761.10 or approximately 62 percent of the cash price was realized from the sale. Although the sale at auction occurred only three months after the original sale, it cannot be said that such a price was commercially unreasonable for an auto dealer\u2019s auction. The plaintiff established that he was entitled to a deficiency and should have recovered it.\nTurning to the defendant\u2019s counterclaim the trial court also erred in returning his down payment and awarding him attorney\u2019s fees. Recovery under the counterclaim was premised on the wrongful repossession of the vehicle and the malicious conduct of plaintiff\u2019s employees. The trial court specifically found that plaintiff had a right to repossess the vehicle and that its actions were not malicious. Defendant had not established any basis for his recovery of the down payment or attorney\u2019s fees. (See National Republic Bank v. Proctor (1978), 66 Ill. App. 3d 534, 541-42, 383 N.E.2d 1310.) The down payment would naturally be applied to reduce the amount of the deficiency to which plaintiff was entitled and should not have been returned to defendant.\nGenerally, in the absence of a statute or an agreement by the parties, a successful litigant may not recover attorney\u2019s fees or the costs of litigation. (Hamer v. Kirk (1976), 64 Ill. 2d 434, 437, 356 N.E.2d 524.) The award of attorney\u2019s fees in this case was error since, as defendant\u2019s attorney conceded in oral argument, the Uniform Commercial Code does not provide for an award of attorney\u2019s fees to a debtor, nor was there any other justification for the award. It was especially inappropriate here since defendant had agreed by contract to pay plaintiff\u2019s attorney\u2019s fees upon collection.\nFinally, the award of $325 for the calculator must be sustained since it is based on factual findings from the evidence and the record is inadequate to review the issue. Therefore, it must be presumed that the evidence justified the trial court\u2019s judgment.\nAccordingly, the judgment of the circuit court is reversed insofar as: (1) it denied plaintiff\u2019s deficiency; (2) granted the return of defendant\u2019s down payment; and (3) awarded attorney\u2019s fees to defendant. The award of the cost of the calculator is affirmed.\nReversed in parts; affirmed in part and remanded.\nSULLIVAN, P. J., and WILSON, J., concur.\nStensel v. Stensel (1978), 63 Ill. App. 3d 639, 380 N.E.2d 526, held that the failure to give the required notice was a bar to the recovery of a deficiency judgment. We merely note this divergence, since in the instant case the trial court expressly found that notice was given.", "type": "majority", "author": "Mr. JUSTICE MEJDA" } ], "attorneys": [ "Norman P. Wexler, of Wexler, Wexler & Heller, Ltd., of Chicago, for appellant.", "Todd C. Lyster, of Chicago, for appellee." ], "corrections": "", "head_matter": "CHICAGO CITY BANK & TRUST CO., Plaintiff-Appellant, v. ROBERT L. WILSON, Defendant-Appellee.\nFirst District (5th Division)\nNo. 79-1363\nOpinion filed June 27, 1980.\nNorman P. Wexler, of Wexler, Wexler & Heller, Ltd., of Chicago, for appellant.\nTodd C. Lyster, of Chicago, for appellee." }, "file_name": "0452-01", "first_page_order": 474, "last_page_order": 479 }