Magna Bank of McLean County v. Comer

• Decision Date: 13 October 1992
• Docket Number: No. 4-92-0020,4-92-0020
• Citation: 600 N.E.2d 855,232 Ill.App.3d 300
• Parties: , 175 Ill.Dec. 612 MAGNA BANK OF McLEAN COUNTY, Plaintiff-Appellant, v. Gilbert COMER, Jr., Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 855

600 N.E.2d 855

232 Ill.App.3d 300, 175 Ill.Dec. 612

MAGNA BANK OF McLEAN COUNTY, Plaintiff-Appellant, v. Gilbert COMER, Jr., Defendant-Appellee.

No. 4-92-0020.

Appellate Court of Illinois,

Fourth District.

Oct. 13, 1992.

Nunc pro tunc July 9, 1992.

George C. Wood, Luedtke, Hartweg & Turner, Bloomington, for plaintiff-appellant.

No Appearance for defendant-appellee.

Justice McCULLOUGH delivered the opinion of the court:

Plaintiff Magna Bank of McLean County appeals from an order of the circuit court of McLean County dismissing its cause of action against Gilbert Comer, Jr. Plaintiff sued to recover from defendant the balance due on a motor vehicle retail installment contract, plus interest, attorney fees, and costs. Determining defendant was a cosigner who was not a spouse or parent of the person who had possession of a 1984 Buick LeSabre automobile, the trial court decided section 18 of the Motor Vehicle Retail Installment Sales Act (Act) ( Ill.Rev.Stat.1989, ch. 121 1/2, par. 578) rendered defendant not liable since he did not also sign as a guarantor. The only issue presented on review is whether the trial court's application of the statute to this case was incorrect. We reverse and remand for further proceedings.

On appeal, the defendant has not filed an appellee's brief. However, this case is not being reversed for that reason. While this court will not act as an advocate for the appellee, the record is simple, and the claimed error is such that this court can decide the case on the merits without the aid of an appellee's brief. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill.2d 128, 133, 345 N.E.2d 493, 495.

Section 18 of the Act reads as follows:

"Each person, other than a seller or holder, who signs a retail installment contract may be held liable only to the extent that he actually receives the motor vehicle described or identified in the contract, except that a parent or spouse who co-signs such retail installment contract may be held liable to the full extent of the deferred payment price notwithstanding such parent or spouse has not actually received the motor vehicle described or identified in the contract and except to the extent such person other than a seller or holder, signs in the capacity of a guarantor of collection.

The obligation of such guarantor is secondary, and not primary. The obligation arises only after the seller or holder has diligently taken all ordinary legal means to collect the debt from the primary obligor, but has not received full payment from such primary obligor or obligors.

No provisions in a retail installment contract obligating such guarantor is valid unless:

(1) there appears below the signature space provided for such guarantor the following:

I hereby guarantee the collection of the above described amount upon failure of the seller named herein to collect said amount from the buyer named herein.'; and

(2) unless the guarantor, in addition to signing the retail installment contract, signs a separate instrument in the following form:

'EXPLANATION OF GUARANTOR'S OBLIGATION

You ... (name of guarantor) by signing the retail installment contract and this document are agreeing that you will pay ... (total deferred payment price) for the purchase of ... (description of goods or services) purchased by ... (name of buyer) from ... (name of seller).

Your obligation arises only after the seller or holder has attempted through the use of the court system to collect this amount from the buyer.

If the seller cannot collect this amount from the buyer, you will be obligated to pay even though you are not entitled to any of the goods or services furnished. The seller is entitled to sue you in court for the payment of the amount due.'

The instrument must be printed, typed, or otherwise reproduced in a size and style equal to at least 8 point bold type, may contain no other matter (except a union printing label) than above set forth and must bear the signature of the co-signer and no other person. The seller must give the co-signer a copy of the retail installment contract and a copy of the co-signer statement." (Ill.Rev.Stat.1989, ch. 121 1/2, par. 578.)

Section 2.2 of the Act defines a "buyer" in this way:

" 'Retail buyer' or 'buyer' means a person who buys a motor vehicle from a retail seller, primarily for personal, family, household or agricultural purposes in a retail installment transaction, but does not include a buyer for use in business (not including farming or a profession)." Ill.Rev.Stat.1989, ch. 121 1/2, par. 562.2.

In the trial court, the parties entered into the following stipulations:

"1. That the copy of the Retail Installment Contract, attached to the Complaint and referenced as Exhibit A, is a true and accurate copy/reproduction of the original document under which a 1984 Buick LaSabre automobile was purchased from Sam Leman Dodge City.

2. That under the retail Installment Contract, Linda Jenkins is listed as a buyer of the 1984 Buick LaSabre automobile and signed as a buyer on October 29, 1989.

3. That under the Retail Installment Contract, Gilbert S Comer, Jr., is listed as buyer of the 1984 Buick LaSabre automobile and signed as a buyer on October 29, 1989.

4. The title to the 1984 Buick LaSabre automobile, attached to the answer to Affirmative Defenses and referenced as Exhibit B, is a true and accurate copy/reproduction of the original.

5. On the title to the 1984 Buick LaSabre automobile, Linda Jenkins and Gilbert Comer, Jr., are listed as owners.

6. That the rights of Sam Leman Dodge City, under the Retail Installment Contract, were effectively assigned to Magna Bank of McLean County on November 2, 1989, under the 'assignment' clause/section of the Retail Installment Contract.

7. As of August 28, 1991, there is an outstanding balance due under the Retail Installment Contract of $4,027.87.

8. That Gilbert S. Comer, Jr., did not sign the Retail Installment Contract as a Guarantor. That Gilbert S. Comer, Jr., did not sign a separate instrument detailing the explanation of the guarantor's...