The Illinois Fifth District Court of Appeals recently upheld a trial court judgment against a borrower on credit card debt because it ruled there was no of error in the admission of the evidence, that there was no evidence of judicial bias and that the judgment was not against the clear weight of the evidence.

The Court of Appeal also ruled that the borrower’s second notice of appeal was filed on time because a motion to set aside the judgment passed the deadline for filing the notice of appeal and that the first notice of appeal was ineffective because the motion for annulment was pending, which made the defendant a motion for voluntary dismissal of his first appeal in nullity.

A copy of the notice in Capital One Bank (United States) NA v. Tucker is available at: Link to Opinion.

A bank filed a lawsuit against a borrower alleging that the borrower had not paid his credit card debt as required by the credit card contract. A bank employee testified that when the borrower opened the credit account, a copy of the customer agreement was mailed to him at his address.

The employee also testified that the borrower’s daughter was on the list of authorized users of the borrower’s account and that a card had been issued to her and the borrower. In addition, the employee said that, based on the bank’s business records, the borrower never requested that the girl be removed as an authorized user.

The employee then testified that at one point the borrower contacted the bank stating that she believed there had been fraud on the account. However, records indicate that the fraud claim was dismissed because the borrower never provided the information necessary to investigate his fraud claim.

The borrower’s daughter testified on behalf of the borrower and disputed several charges on the account. However, the trial court ruled that the borrower was bound by the client agreement and the girl’s testimony was misleading. As a result, the lower court ruled in favor of the bank for the amount of credit card debt plus court costs.

The borrower first filed a notice of appeal of the judgment, but while the appeal was pending, the bank filed a petition in the trial court to set aside the judgment and put the case on l ‘appeal of the statute of the court of first instance because the lawyer of the bank had been informed that the borrower was again alleging fraud on the account.

Before the quashing motion was adjudicated, the borrower filed a motion to voluntarily dismiss his appeal, stating that the bank “quashed the judgment against me.” The Fifth District allowed the borrower’s request to voluntarily dismiss the appeal.

However, the borrower then filed a new notice of appeal, asking the Fifth District to quash 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 raised in the first appeal. For these reasons, the bank argued that the Fifth District did not have jurisdiction to hear the defendant’s appeal.

However, the Fifth District held that the bank’s argument failed to recognize that by the time the borrower requested to voluntarily dismiss his appeal, the notice of appeal had been rendered ineffective due to the bank filing. of a motion to quash the judgment. Ill. S. Ct. R. 303 (a) (2). Therefore, when the borrower filed a motion to voluntarily dismiss his first appeal, mistakenly believing that the judgment had been set aside, there was no effective appeal to voluntarily dismiss. Thus, the Court concluded that it had jurisdiction to review the judgment on the basis of the borrower’s second notice of appeal, which was timely filed within 30 days of registration by the trial court. that the bank had abandoned its motion to quash the judgment. See Ill. S. Ct. R. 303 (a) (1).

Further, the Fifth District considered that the second notice of appeal was sufficient to confer jurisdiction over the judgment because the defendant’s claim for relief clearly requested that the Court overturn the judgment. See Burtell v. First Charter Service Corp., 76 Ill. 2d 427, 433-34 (1979). Accordingly, the Court dismissed the bank’s motion to dismiss the second notice of appeal.

The borrower first argued on appeal that the trial court had erred in allowing the bank 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 civil case without a jury, a question not presented to the court of first instance is lifted. People c. A parcel of property commonly known as 1945 North 31st Street, Decatur, Macon County, Illinois, 217 Fig. 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 the information needed to authenticate the customer agreement and records. account that were admitted into evidence. See Timothy Whelan Law Associates, Ltd. vs. Kruppe, 409 Ill. App. 3d 359, 366 (2011). For these reasons, the Court found no error in admitting the testimony.

Second, the borrower argued that the trial court erred in “entering the courtroom with preconceived ideas because of an unrelated case”. Since the borrower did not raise the issue of judicial bias in the trial court, the Fifth District concluded that this argument was also rejected. See A parcel of property commonly known as 1945 North 31st Street, Decatur, Macon County, Illinois, 217 Fig. 2d to 503-04.

Even without waiver, the Fifth District held that a trial judge is presumed to be impartial and that the burden of overcoming this presumption rests with the party accusing the prejudice. Eychaner vs. Gross, 202 Ill. 2d 228, 280 (2002). As such, the party accusing the prejudice must present evidence of prejudicial conduct at trial and evidence of the judge’s personal bias. Identifier. In this case, the Court held that the borrower had presented neither. Accordingly, he did not overturn the trial court’s decision based on judicial bias.

Finally, the borrower argued that the trial court erred in failing to recognize that there were fraudulent charges on the bank’s billing statements and in concluding that the testimony of the daughter of the borrower was “dishonest”. The Fifth District pointed out that the trial court, when sitting as the trier of fact in a trial, makes findings of fact and assesses all the evidence to reach a conclusion. Staes & Scallan, PC v. Orlich, 2012 IL App (1st) 112974, ¶ 35. When a party challenges the decision of the court of first instance after a trial, the court of appeal relies on the factual findings of the court of first instance, unless they are not contrary to the manifest weight of the proof. Identifier.

Here, the Fifth District concluded that the judgment of the trial court was not contrary to the manifest weight of the evidence. The borrower’s allegations of fraud depended on her daughter’s credibility in denying that she had brought the charges in question, and the court ruled that it was for the trial court to determine her credibility. See identifier.

As a result, the Fifth District upheld the judgment of the court of first instance.


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