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Illinois App. Court (5th Dist) Rejects Borrower’s Challenges to Creditor’s Evidence at Trial

credit card agreementThe Appellate Court of Illinois, Fifth District, recently affirmed a trial court’s judgment against a borrower on a credit card debt because it ruled that there were no errors in the admission of evidence, there was no evidence of judicial bias, and the judgment was not against the manifest weight of the evidence.

The Appellate Court also held that the borrower’s second notice of appeal was timely filed because a motion to vacate the judgment tolled the deadline for filing the notice of appeal and the first notice of appeal was ineffective because the motion to vacate was pending, making the defendant’s motion to voluntarily dismiss her first appeal a nullity.

A copy of the opinion in Capital One Bank (USA) N.A. v. Tucker is available at:  Link to Opinion.

A bank filed a complaint against a borrower alleging that the borrower failed to pay her credit card debt as required by the credit card agreement. An employee for the bank testified that at the time the borrower opened the credit account, a copy of the customer agreement was mailed to her at her address.

The employee also testified that the borrower’s daughter was listed as an authorized user on the borrower’s account, and a card was issued to both her and the borrower. Additionally, the employee stated that, based on the bank’s business records, the borrower never requested that the daughter be removed as an authorized user.

The employee then testified that, at one point, the borrower contacted the bank indicating that she believed there was fraud on the account. However, records indicate that the claim for fraud was denied because the borrower never provided the information required to investigate her fraud claim.

The borrower’s daughter testified on the borrower’s behalf and disputed several charges on the account. However, the trial court held that the borrower was bound by the customer agreement and that the daughter’s testimony was disingenuous. Accordingly, the trial court entered judgment in favor of the bank in the amount of the credit card debt, plus court costs.

The borrower initially filed a pro se notice of appeal from the judgment, but while the appeal was pending, the bank filed a motion in the trial court to vacate the judgment and to set the matter on the trial court’s status call because the bank’s counsel had been informed that the borrower was again claiming fraud on the account.

Before the motion to vacate was ruled on, the borrower filed a motion to voluntarily dismiss her appeal, stating that the bank “has vacated the judgment against me.” The Fifth District granted the borrower’s motion to voluntarily dismiss the appeal.

However, the borrower then filed a new notice of appeal, asking that the Fifth District reverse the judgment finding her “guilty of the charges.” The bank, in turn, filed a motion to dismiss this appeal, arguing that the judgment was not appealable, and that the borrower’s second appeal did not revive the issues presented in the first appeal. For these reasons, the bank argued that the Fifth District lacked jurisdiction over the defendant’s appeal.

However, the Fifth District held that the bank’s argument failed to recognize that, at the time the borrower requested to voluntarily dismiss her appeal, the notice of appeal had been rendered ineffective due to the bank’s filing of a motion to vacate the judgment. Ill. S. Ct. R. 303(a)(2). Accordingly, when the borrower filed a motion to voluntarily dismiss her first appeal, mistakenly believing the judgment had been vacated, there was no effective appeal to voluntarily dismiss. Thus, the Court found that it had jurisdiction to review the judgment based on the borrower’s second notice of appeal, which was timely filed within 30 days of the trial court docketing that the bank had abandoned its motion to vacate the judgment. See Ill. S. Ct. R. 303(a)(1).

Additionally, the Fifth District found that the second notice of appeal was sufficient to confer its jurisdiction over the judgment because the defendant’s prayer for relief clearly requested that the Court reverse the judgment. See Burtell v. First Charter Service Corp., 76 Ill. 2d 427, 433-34 (1979). Therefore, the Court denied the bank’s motion to dismiss the second notice of appeal.

The borrower first argued on appeal that the trial court erred in allowing the bank’s employee to testify “as an expert witness.”  However, the Fifth District noted that the borrower did not object to the testimony at trial. In a nonjury civil case, an issue not presented to the trial court is waived. People v. A Parcel of Property Commonly Known as 1945 North 31st Street, Decatur, Macon County, Illinois, 217 Ill. 2d 481, 503-04 (2005).

Waiver aside, the Fifth District also observed that the bank did not call the employee as an expert witness, but rather, as a lay witness to provide information necessary to authenticate the customer agreement and account statements that were admitted into evidence. See Timothy Whelan Law Associates, Ltd. v. Kruppe, 409 Ill. App. 3d 359, 366 (2011). For these reasons, the Court found no error in the admission of the testimony.

Second, the borrower argued that the trial court erred by “coming into the courtroom with preconceived ideas because of an unrelated case.” Because the borrower did not raise the issue of judicial bias in the trial court, the Fifth District concluded that this argument was also waived. See A Parcel of Property Commonly Known as 1945 North 31st Street, Decatur, Macon County, Illinois, 217 Ill. 2d at 503-04.

Even without waiver, the Fifth District reasoned that a trial judge is presumed to be impartial, and the burden of overcoming this presumption rests on the party making the charge of prejudice. Eychaner v. Gross, 202 Ill. 2d 228, 280 (2002). As such, the party making the charge of prejudice must present evidence of prejudicial trial conduct and evidence of the judge’s personal bias. Id. Here, the Court held that the borrower presented neither. Accordingly, it did not reverse the trial court’s ruling based on judicial bias.

Lastly, the borrower argued that the trial court erred in not recognizing that there were fraudulent charges on the bank’s billing statements and finding the borrower’s daughter’s testimony to be “disingenuous.” The Fifth District pointed out that the trial court, when sitting as the trier of fact in a bench trial, makes findings of fact and weighs all the evidence in reaching a conclusion. Staes & Scallan, P.C. v. Orlich, 2012 IL App (1st) 112974, ¶ 35. When a party challenges the trial court’s ruling after a bench trial, the appellate court defers to the trial court’s factual findings unless they are against the manifest weight of the evidence. Id.

Here, the Fifth District concluded that the trial court’s judgment was not against the manifest weight of the evidence. The borrower’s claims of fraud hinged on the credibility of her daughter in denying she made the charges at issue, and the Court held that it was within the trial court’s province to determine her credibility. See id.

Accordingly, the Fifth District affirmed the trial court’s judgment.

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Daniel Miller is an associate in the Chicago office of Maurice Wutscher LLP, practicing in the firm’s Consumer Credit Litigation and Commercial Litigation groups. Daniel has substantial experience as a litigation attorney representing clients in both individual and class action cases involving the FDCPA, TCPA, FCRA, TILA, RESPA, Illinois Consumer Fraud Act, and various other federal and state statutes. He also has experience in representing corporate clients in commercial transactions and executive compensation agreements. Daniel earned his Juris Doctor from the University of Illinois College of Law, and his Bachelor of Arts in History from Durham University in the United Kingdom. He is admitted to practice law in Illinois and the U.S. District Courts for the Northern District of Illinois and the Southern District of Illinois.

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