Author: Alan Alop, LAF
Last updated: June 2006

Deficiency Cases

Notice of Disposition Required 810 ILCS 5/9-614

1. Notice to All Debtors and Obligors. 810 ILCS 5/9-611(b).

2. Notice of All Sales. Staley Employee Credit Union v. Christie, Ill. App3d 165, 443 N.E.2d 731 (4th Dist. 1982).

3.  Accurate Notice. First National Band of Decatur v. Wolfe, 92 Ill. Dec. 491, 485 N.E. 2d 46 (4th Dist.1985).

4.  Timely Notice. Sec. 612(a). In re Carter, 511 F.2d 1203 (9th Cir. 1975).

Commercially Reasonable Sale 810 ILCS 5/9-610

1. Sale at a Retail Outlet. Ford Motor Credit Co. v. Jackson, 126 Ill. App. 3d 1124, 466 N.E. 2d 1330 (3rd Dist. 1984).

2.  Insufficient Number of Bids. Westgate State Bank v. Clark, 231 Kan. 81, 33 UCC Rep. Serv. 1172,1187 (1982).

3.  Preparation of Secured Property for Resale. Franklin State Bank v. Parker, 18 UCC Rep. Serv.266 (N.J. D.C. 1975).

Wrongful Repossession

Security Agreement. In re Newman, 3 UCC Rep.2d 1143 (Bk. Kans. 1987).

Default. Margolin v. Franklin, 132 Ill. App. 2d 527,270 N.E.2d 140 (1st Dist. 1971).

Breach of the Peace. Chrysler Credit Corp. v. Koontz, 661 N.E.2d 1171 (5th Dist. 996). Purkett v. Key Bank U.S.A., 2001 U.S. Dist. LEXIS 6126 (N.D. Ill. 2001).     

Remedies. Kouba v. East Joilet Bank, 89 Ill. Dec. 774, 481 N.E.2d 325 (3rd Dist 1985). Gary - Wheaton Bank v. Gaughan, 655 N.E.2d 936, 942-944 (2d Dist. 1995).

Statutory Notice 810 ILCS  5/9-614

.......... (Name and address of secured party)

.......... (Date)

Notice of Our Plan to Sell Property

.......... (Name and address of any obligor who is also a debtor)

Subject: .......... (Identification of Transaction)

We have your .......... (describe collateral), because you broke promises in our agreement.

For a public disposition:

We will sell .......... (describe collateral) at public sale. A sale could include a lease or license.

The sale will be held as follows:

Date: ..........

Time: ..........

Place: ..........

You may attend the sale and bring bidders if you want.

For a private disposition:

We will sell .......... (describe collateral) at private sale sometime after .......... (date).  A sale could include a lease or license.

The money that we get from the sale (after paying our costs) will reduce the amount you owe.  If we get less money than you owe, you .......... (will or will not, as applicable) still owe us the difference. If we get more money than you owe, you will get the extra money, unless we must pay it to someone else.

You can get the property back at any time before we sell it by paying us the full amount you owe (not just the past due payments), including our expenses. The learn the exact amount you must pay, call us at .......... (telephone number).

If you want us to explain to you in writing how we have figured the amount that you owe us, you may call us at .......... (telephone number) or write us at .......... (secured party’s address) and request a written explanation.  We will charge you $ .......... for the explanation if we sent you another written explanation of the amount you owe us within the last six months.

If you need more information about the sale call us at .......... (telephone number) or write us at .......... (secured party’s address).

We are sending this notice to the following other people who have an interest .......... (describe collateral) or who owe money under your agreement:

.......... (Names of all other debtors and obligors, if any)

Affirmative Defense

Defendant's affirmative defense is as follows:

1.     On or about July 17, 1980, defendant entered into a motor vehicle retail installment sales contract ("contract") with DEALER (seller) for the purchase of a used 1969 Buick Skylark ("automobile"). A copy of the contract is attached to the Complaint.

2.     Defendant purchased and used the automobile primarily for personal, family and household purposes.

3.     On or about July 17, 1980, seller assigned the contract to plaintiff.

4.     On or about September 13, 1980, plaintiff repossessed defendant's automobile.

5.     On or about October 1, 1980, plaintiff sold defendant's automobile.

6.     Plaintiff failed to give defendant proper notification of the sale of the automobile in that:

a.     no notice was sent to defendant regarding the sale of the secured property;

b.     the defendant was not given notice regarding the date after which the sale of the secured property was to be held;

c.      the defendant was not given notice of the date, time and location of the public sale of the secured property;

d.     the actual date of the sale of the secured property differed from the date in the notice provided defendant;

e.      the defendant was given notice of a public sale when in fact the secured property was sold in a private sale;

f.      the defendant was not provided sufficient notice of the actual location of the sale of the secured property;

g.     the notice given defendant provided insufficient time to the defendant; and

7.     Plaintiff's sale of the secured property was commercially unreasonable in that:

a.    the secured property was sold by a private sale rather than a public sales;

b.    the secured property was sold on a wholesale basis rather than at retail;                       

c.    the price realized for the secured property was unreasonably low;

d.    the delay between repossession and the date of the sale of the secured property was unreasonably long;

e.    the secured property was sold at an unreasonable location;

f.     the secured property was not physically present at the location of the sales;

g.    the secured party failed to solicit and/or obtain a sufficient number of bids for the sales of the secured property;

h.    the method used by the secured party to solicit bids for the sale of the secured property was unreasonable;

i.     the secured party failed to sufficiently publicize and/or advertise the sale of the secured property;

j.     the secured party failed to repair the secured property or otherwise prepare the property for resale so that it could be sold at a reasonable price;

k.    the secured party was unfamiliar with the type of property which constituted the secured property in this case or with the market for such property, and failed to obtain an appraisal of the property, and;

l.     the secured party sold the secured property to itself or to another entity owned and/or controlled by the secured party.

WHEREFORE, defendant prays that this Court:

A.     Dismiss the complaint with prejudice; and

B.     Grant defendant her costs and such other relief as is just.

Counterclaim

Now comes counterplaintiff, CLIENT, and complains against counterdefendant, General Motors Acceptance Corporation, as follows:

COUNT I

1.         This is an action for statutory damages for violation of 810 ILCS 5/9-601 et seq.

2-8.      Counterdefendant realleges paragraphs 1 through 7 of the Affirmative Defense as paragraphs 2 through 8 of the Count.

9.         For the foregoing violations, counterplaintiff is entitled to recover, under 810 ILCS 5/9-625(c) not less than the finance charge plus ten percent of the cash price, or the loss caused by the counterdefendant's failure to comply, whichever is greater.

WHEREFORE, counterplaintiff prays that this Court:

A.        Enter a judgment in her favor for $1,500.00; and

B.        Grant such other relief as is just.

July 2002