RESURGENCE CAPITAL, LLC, Plaintiff-Appellee, v. THOMAS KUZNAR, Defendant-Appellant.
No. 1-16-1853
APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT
May 26, 2017
2017 IL App (1st) 161853-U
JUSTICE LAMPKIN delivered the judgment of the court. Presiding Justice Gordon and Justice Reyes concurred in the judgment.
FIFTH DIVISION. NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
¶1 Held: In this action arising from plaintiff‘s complaint to collect a credit card debt from defendant, the circuit court properly granted judgment to plaintiff, denied defendant‘s request for sanctions and petition for discovery, found that defendant had submitted to the jurisdiction of the court, denied defendant‘s motions to dismiss alleging failure to obtain timely service on defendant and failure to file the complaint within the statute of limitations, sustained plaintiff‘s objections to irrelevant testimony, and found that no evidence supported defendant‘s allegations of fraud.
¶3 For the reasons that follow, we affirm the judgment of the circuit court.
I. BACKGROUND
¶4 On January 23, 2012, plaintiff Resurgence Capital, LLC (Resurgence) filed a complaint against defendant Thomas Kuznar, seeking payment on a Chase Bank USA, N.A. (Chase) credit card account with a balance of $3,614.97. Resurgence attached to its complaint bills of sale demonstrating it was the ultimate assignee of all right, title and interest in Kuznar‘s Chase account pursuant to Resurgence‘s purchase of the account in September 2011, the card member agreement governing the use of the account, and an affidavit attesting that Resurgence had all right, title and interest in the account.
¶5 In February 2012, the Sheriff‘s Office of Cook County indicated it was unable to serve Kuznar with process at his residence, 4309 West Henderson Street, Unit 1, in Chicago. Resurgence issued an alias summons directing service upon Kuznar at his residence, but in May 2012, the special process server, Marshall Grady, indicated he was unable to serve Kuznar due to Kuznar‘s “threatening nature” and requested that Resurgence seek alternate service on Kuznar. Specifically, Grady stated that the landlord confirmed Kuznar lived in the unit and, on Grady‘s third attempt, someone came to the door and looked at the him through the peephole. Grady left
¶6 Resurgence moved for alternate service, and in October 2012 the trial court allowed Resurgence to serve Kuznar by certified and first class mail. Accordingly, Kuznar was served on November 16, 2012, by alternative service as directed by the court. In January 2013, Resurgence moved for a default and judgment against Kuznar.
¶7 On February 11, 2013, at the 2 p.m. presentment on the motion for default, the court entered judgment in Resurgence‘s favor in the amount of $3,614.97 plus court costs. However, later that same day, at approximately 3:42 p.m., Kuznar filed a motion to quash service and set aside the default judgment. The motion was typed and included citations to statutes and case law. Although the motion was filed on February 11, 2013, it alleged Kuznar “first learned about this action on February 15, 2013 upon checking the online Court Docket.” In his attached affidavit, Kuznar stated that he was not served by certified or “U.S. Mail.” Meanwhile, on February 13, 2013, Resurgence sent Kuznar a letter informing him that a judgment had been entered against him. On March 12, 2013, the court quashed the summons and vacated the default judgment against Kuznar, who was the only party present. Resurgence did not receive a copy of Kuznar‘s motion to quash or the March 12 order vacating the default judgment, and the trial court would find in later proceedings that Kuznar failed to notify Resurgence of these matters.
¶9 Kuznar filed his petition for sanctions in January 2016, and Resurgence filed its response in February 2016. In March 2016, Kuznar filed a reply and also moved to substitute the judge as of right and to conduct discovery concerning the authenticity of the signature of Resurgence‘s counsel on the citation. Resurgence filed a sur-reply and Kuznar filed an objection and request to strike Resurgence‘s sur-reply. Kuznar‘s motion to substitute the judge was granted in April 2016.
¶10 On April 29, 2016, the trial court (1) denied Kuznar‘s petition for sanctions, (2) struck Kuznar‘s petition for discovery, (3) found that Kuznar had submitted to the jurisdiction of the court, (4) stated that Kuznar has been tendered a copy of Resurgence‘s complaint in open court, and (5) set the case for trial on July 7, 2016. Kuznar moved the court to reconsider this order and thereafter moved to quash the subpoena served on Chase for records of Kuznar‘s account and issue a protective order. The trial court denied Kuznar‘s motions.
¶11 On July 5, 2016, Kuznar moved to dismiss Resurgence‘s claims but failed to obtain the requisite leave of court to file such a motion in a small claims case. Kuznar also filed his answer, which denied all of Resurgence‘s allegations relating to the account and raised as affirmative defenses the statute of limitations, failure to state a claim, lack of standing, contributory
¶12 On July 7, 2016, the trial court heard testimony and received evidence from the parties, stated that it had weighed the credibility of Kuznar as a witness, and entered judgment in Resurgence‘s favor in the amount of $3,238.74 plus costs. According to its written order, the trial court found that (1) Resurgence‘s complaint stated a cause of action, (2) Resurgence filed the complaint within the five-year statute of limitations, (3) Resurgence diligently prosecuted its case and any delay was caused by Kuznar‘s failure to give Resurgence notice that the trial court had vacated the default judgment; (4) Kuznar did not present and the court did not find any evidence of fraud, (5) contributory negligence was not an applicable defense, (6) there was no breach of the consumer fraud statute; (7) there was no evidence of unclean hands, estoppel, unjust enrichment or laches, and (8) Resurgence established that it was the owner of the account at issue by showing a valid chain of title from the original issuer to Resurgence. No court reporter was present at the trial to record the proceeding, and the record on appeal does not include a bystander‘s report.
¶13 Kuznar timely appealed.
II. ANALYSIS
¶14 On appeal, Kuznar first argues the trial court erred in denying his petition for sanctions against Resurgence for filing a fraudulent third party citation after the default judgment entered against him had been vacated. Kuznar asserts Resurgence falsely claims that it was not properly notified of his motion to quash service and vacate the default judgment, the hearing on that motion, and the trial court‘s order granting the motion. Kuznar argues sanctions against Resurgence are appropriate under
¶15 The decision whether or not to impose sanctions for a party‘s failure to comply with the rules or orders of the court lies within the sound discretion of the trial court and will not be reversed absent an abuse of discretion. See Sullivan v. Edward Hospital, 209 Ill. 2d 100, 110 (2004). An abuse of discretion occurs when the trial court‘s decision is arbitrary, fanciful or unreasonable or where no reasonable person would take the view adopted by the trial court. Emrikson v. Morfin, 2012 IL App (1st) 111687, ¶ 14; Spiegel v. Hollywood Towers Condominium Ass‘n, 283 Ill. App. 3d 992, 1002 (1996). Sanctions under
¶16 The trial court did not abuse its discretion by denying Kuznar‘s petition for sanctions against Resurgence. According to the record, Resurgence informed the court that it did not receive a copy of either Kuznar‘s typed February 2013 motion to quash, which was filed less than two hours after the default judgment was entered, or the court‘s March 12, 2013 order vacating the default judgment. Resurgence stated that Kuznar did not mail a copy of the order
¶17
¶18 Second, Kuznar argues the trial court erred in denying his motion to conduct discovery on whether Resurgence‘s counsel issued a “robo-signed” third party citation. Kuznar claims that a “robo-signed” citation would violate section 1.15 of the Statute on Statutes (
¶19 This case involved a small claim because Resurgence sought to recover less than $10,000 from Kuznar.
¶20 We find that the trial court‘s decision to deny Kuznar‘s discovery request was not an abuse of discretion.
¶21 Third, Kuznar argues the trial court did not have jurisdiction to adjudicate Resurgence‘s complaint against Kuznar. Kuznar argues that Resurgence‘s actions forced him to take part in the court proceedings but his participation did not constitute submitting to the court‘s jurisdiction.
¶22 We review de novo the trial court‘s decision regarding personal jurisdiction. BAC Home Loans Servicing, L.P. v. Mitchell, 2014 IL 116311, ¶ 17. Personal jurisdiction can be established by service of process in accordance with statute, or by a party‘s voluntary submission to the court‘s jurisdiction. Id. ¶ 18.
¶23 We find that Kuznar had submitted to the court‘s jurisdiction. When the trial court ruled on April 29, 2016, that Kuznar had submitted to its jurisdiction, the service of process by certified and first class mail had been quashed in March 2013. However, Kuznar had filed his petition for sanctions in January 2016, his motion for substitution of judge as of right in March 2016, his reply to Resurgence‘s response to the petition for sanctions in March 2016, his petition for discovery in March 2016, and his objection to and request to strike Resurgence‘s sur-reply to the petition for sanctions in March 2016. None of these listed motions and filings after March 2013 were motions to dismiss based on alleged insufficiency of service of process and established that Kuznar waived all objections to the court exercising personal jurisdiction over him according to the plain terms of
¶24 Fourth, Kuznar argues the trial court should have dismissed the complaint under
¶25
¶26 We find no abuse of discretion in the trial court‘s denial of Kuznar‘s motion to dismiss under Rule 301(b). According to the record, Resurgence presented evidence showing that it did not receive a copy of either Kuznar‘s motion to quash, which was filed less two hours after the default judgment was entered, or the court‘s March 12, 2013 order vacating the default judgment. Resurgence also presented evidence at the hearing showing that Kuznar had failed in another case to provide an attorney with notice of Kuznar‘s motion to quash and a copy of the court order quashing service. Furthermore, when Resurgence learned on January 14, 2016, that its default judgment against Kuznar had been vacated, it voluntarily dismissed its third party citation the next day and ensured that Kuznar‘s assets of 36 cents held by the bank were released and the account was unfrozen. The trial court stated that it had weighed the credibility of Kuznar as a witness and determined that he failed to give Resurgence notice that the default judgment had been vacated. The record supports the trial court‘s determination that any delay in
¶27 Fifth, Kuznar argues the trial court failed to dismiss Resurgence‘s complaint for failure to state a cause of action. Kuznar argues Resurgence failed to state a cause of action for breach of contract because Resurgence failed to attach the alleged contract to the complaint and establish that Chase had issued credit to Kuznar and a balance was due under that account. Kuznar also argues Resurgence failed to state an account stated cause of action because Resurgence merely made conclusory allegations that Kuznar defaulted on his payment obligations on the alleged account and a balance allegedly was due. Kuznar also contends Resurgence failed to establish its standing to pursue this claim by setting forth under oath how and when it acquired title to the Chase account debt. In addition, Kuznar asserts the trial court should have stricken Resurgence‘s affidavit concerning the Chase balance and interest because the affiant was incompetent to testify to the information contained in the affidavit where Resurgence could not testify to the authenticity, accuracy or completeness of Chase‘s business records.
¶28 After the hearing, the trial court ruled in favor of Resurgence, finding, inter alia, that it had pled and proved its cause of action and proved a valid chain of title concerning the credit card account debt from the original issuer to Resurgence. The record on appeal does not contain any transcript of the trial, bystander‘s report of the proceedings certified in accordance with
¶29 Sixth, Kuznar argues the trial court should have dismissed Resurgence‘s complaint with prejudice because it was filed after the three-year statute of limitations had expired on January 12, 2012. Kuznar contends that the Chase credit card member agreement attached to Resurgence‘s complaint provided that, to the extent state law applied, the law of Delaware would govern the terms and enforcement of the agreement and account. Kuznar asserts Delaware‘s three-year statute of limitations started running on January 12, 2009, the date of the last activity in the account. Kuznar argues that Resurgence‘s January 23, 2012 complaint was filed after the statute of limitations had expired on January 12, 2012.
¶30 We disagree. Statutes of limitations are procedural, and the law of the forum state governs, even when a choice of law provision is part of the contract. Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d 325, 351-52 (2002). Accordingly, Illinois law governs the timeliness of Resurgence‘s claim, and the appropriate statute of limitations to be applied to Resurgence‘s cause of action involving a defaulted credit card debt is five years. Portfolio Acquisitions, LLC v. Feltman, 391 Ill. App. 3d 642, 652 (2009). Resurgence‘s claim was timely filed within the five-year statute of limitations.
¶31 Seventh, Kuznar argues the trial court improperly sustained Resurgence‘s objections to Kuznar‘s questions at the evidentiary hearing concerning how much Resurgence had paid to acquire all rights, title and interest to Kuznar‘s Chase credit card debt.
¶32 We review a trial court‘s decisions concerning the admission of evidence under an abuse of discretion standard. Bulger v. Chicago Transit Authority, 345 Ill. App. 3d 103, 110-11 (2003). However, we have no way of determining this issue because the record does not contain any trial transcript or bystander‘s report. In the absence of a proper record, we must presume that the missing transcript supports the trial court‘s evidentiary ruling and resolve any doubts against Kuznar. In re Marriage of Rogers, 213 Ill. 2d at 140 n. 2.
¶33 Finally, Kuznar argues the court erroneously found that Resurgence did not violate the Consumer Fraud and Deceptive Business Practices Act,
¶34 The standard of review in a bench trial is generally whether the judgment is against the manifest weight of the evidence. Reliable Fire Equipment Co. v. Arredondo, 2011 IL 111871, ¶¶ 12-13. It is the trial court‘s duty to determine the credibility of the witnesses, the weight to be accorded their testimony, and to resolve inconsistencies and conflicts. Goldenberg v. Bazell, 219 Ill. App. 3d 672, 678 (1991).
¶35 The trial court stated that it had weighed the credibility of Kuznar as a witness, Kuznar had failed to present any evidence of fraud, the trial court did not find any evidence of fraud, and Resurgence did not violate the Consumer Fraud and Deceptive Business Practices Act. In the absence of a proper record containing a hearing transcript or bystander‘s report, we resolve any doubts arising from the incomplete record against Kuznar and presume that the trial court‘s order
III. CONCLUSION
¶36 For the foregoing reasons, we affirm the judgment of the trial court.
¶37 Affirmed.