                                                                             FOURTH DIVISION
                                                                                  June 29, 2007




No. 1-06-1858


GENERAL MOTORS ACCEPTANCE CORPORATION, )                            Appeal from
                                       )                            the Circuit Court
     Plaintiff-Appellant,              )                            of Cook County.
                                       )
  v.                                   )
                                       )
LULA STOVAL,                           )                            Honorable
                                       )                            Sanjay T. Tailor,
     Defendant-Appellee.               )                            Judge Presiding.


       PRESIDING JUSTICE QUINN delivered the opinion of the court:

       This case arises out of a cause of action filed by plaintiff General Motors Acceptance

Corporation (GMAC) against defendant Lula Stoval, seeking the entry of a replevin order to

recover an automobile and damages for breach of contract. GMAC appeals from orders of the

circuit court granting judgment in favor of defendant and denying GMAC’s motion to stay the

circuit court’s findings and reopen evidence. On appeal, GMAC contends that the circuit court

erred in granting judgment in favor of defendant where the court improperly applied notice

provisions under section 9-611 of the Uniform Commercial Code (UCC) (as enacted by Illinois,

810 ILCS 5/9-611 (West 2002)); the court improperly found that GMAC was required to

produce a copy of a notice allegedly sent to defendant; and the court improperly held that the

failure to provide such notice under section 9-611 of the UCC was an absolute bar to the entry of

a deficiency judgment against defendant. GMAC also contends that the circuit court abused its

discretion by denying GMAC’s motion to stay the judgment and reopen evidence in this case. For
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the following reasons, we affirm in part, reverse in part, and remand.

                                            I. Background

        On July 8, 2005, GMAC filed a verified complaint against defendant seeking to recover a

2002 Chevrolet Cavalier automobile and money damages.1 Count I of the complaint asserted a

cause of action for replevin pursuant to section 19-101 of the Code of Civil Procedure (Code)

(735 ILCS 5/19-101 (West 2002)). Count II sought damages for breach of contract against

defendant for the full amount claimed to be due to GMAC pursuant to a sales contract for the

vehicle at issue and interest, attorney fees and costs incurred by GMAC.

        Defendant was served with process on August 3, 2005 and a replevin hearing was

scheduled for October 11, 2005. On or about September 12, 2005, the vehicle at issue was

recovered from Birdie Moore, whose address was provided by defendant. On October 11, 2005,

count I of GMAC’s verified complaint was voluntarily dismissed with prejudice. The vehicle was

sold for $5,300 at a public auction on October 13, 2005.

        On March 21, 2006, the circuit court held a bench trial as to count II of GMAC’s

complaint. The parties submitted a bystander’s report of the proceedings, which showed that

Mike Pappas testified for GMAC and defendant testified on her own behalf. The circuit court

received into evidence: (1) a copy of the retail installment contract executed by defendant in

conjunction with the purchase of the vehicle at issue; (2) a copy of the certificate of title for the


        1
            Birdie Moore was also named as a defendant in count I of the complaint. The record

shows that she was not served with summons and apparently did not appear in this case. Count I

was subsequently voluntarily dismissed with prejudice.

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vehicle at issue; and (3) a copy of the "Post-sale Calculation of Surplus or Deficiency Notice"

(Deficiency Letter), which was sent by GMAC to defendant.

        Mike Pappas testified for GMAC that he was an account collection manager and was

responsible for collecting defendant’s delinquent account. Pappas testified that on August 22,

2002, defendant executed a retail installment contract in conjunction with the purchase of the

vehicle. Pappas testified that pursuant to the terms of the retail installment contract, GMAC was

granted a security interest in the vehicle purchased and GMAC perfected its security interest by

recording its lien of the vehicle’s certificate of title. Pappas testified that, on or about April 6,

2005, defendant defaulted on the payments required of her pursuant to the retail installment

contract and failed to cure the default at any time subsequent thereto. Pappas then testified that

on July 8, 2005,GMAC filed suit to recover the vehicle and collect on the balance due to GMAC

pursuant to the retail installment contract. Pappas testified that GMAC obtained possession of

the vehicle on or about September 12, 2005, from Birdie Moore, whose address was provided by

defendant.

        Pappas testified that based upon his review of GMAC’s records regarding the events in

question, after recovering the vehicle GMAC sent to defendant a “Notice of Our Plan to Sell

Property” (Notice). Pappas testified that the Notice informed defendant that GMAC had

recovered possession of the vehicle due to defendant’s default under the retail installment contract

and would sell the vehicle at public auction on a date certain if defendant did not redeem the

vehicle by making certain payments to defendant. Pappas testified that the vehicle was

subsequently sold at a public auction at Milwaukee Auto Auction, in a commercially reasonable


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manner on or about October 13, 2005.

       Pappas testified that the method of sale employed by GMAC was calculated, over the

course of the many thousands of transaction that GMAC was involved in, to recover the greatest

amount of money for the vehicles sold at the lowest average cost to GMAC. Pappas testified that

at the time of the vehicle’s sale, defendant’s account had an unpaid balance of $16,153.97.

Pappas testified that the vehicle was sold for $5,300. Pappas testified that prior to the sale,

GMAC spent $310 to repossess the vehicle and transport it to the Milwaukee Auto Auction,

spent $120 to store the vehicle at the Milwaukee Auto Auction and recondition the vehicle in

preparation for sale, and spent $30 on sale costs incurred by the Milwaukee Auto Auction.

Pappas testified that after the sale, defendant was entitled to, and did receive, as credits against

her account the sums of $131.61 as a rebate of unearned insurance premiums and $325.78 as a

refund of defendant’s unearned service contract. Pappas testified that after all appropriate debits

and credits were applied, defendant owed GMAC the sum of $10,856.58.

       On cross-examination by defendant’s attorney, Pappas testified that he did not have a copy

of the Notice to show the court nor had he seen a copy of the Notice prior to testifying. Pappas

also testified that the Notice was generated automatically by GMAC’s automated billing and

collection software at the time that the vehicle was voluntarily surrendered to GMAC.

       Defendant then testified on her own behalf. Defendant testified that she signed the retail

installment contract admitted into evidence and that she was listed as an owner of the vehicle on

the certificate of title. Defendant testified that upon being served with GMAC’s lawsuit, she

agreed to voluntarily surrender possession of the vehicle and assisted GMAC in the recovery


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thereof. Defendant testified that she did not dispute the calculation of the deficiency balance

claimed by GMAC but did dispute that GMAC was entitled to collect the claimed balance.

Defendant testified that she received the Deficiency Letter and stipulated to the foundation

necessary for its introduction into evidence. Defendant testified that she did not receive the

Notice.

          Prior to closing arguments, the circuit court asked the parties to address the following

issues: (1) whether GMAC was obligated, as a matter of law, to send the Notice to defendant; (2)

if GMAC was so obligated, whether GMAC satisfiedf its burden of proof that it had, in fact, sent

the Notice to defendant; and (3) if GMAC had not satisfied its burden of proof on this issue, what

was the resulting consequence thereof.

          During closing arguments, GMAC argued that defendant had conceded that a valid

contract existed which defendant had breached and that defendant was not contesting the legality

of the repossession of the vehicle, the commercial reasonableness of the vehicle’s sale method or

the damages claimed to be due to GMAC. GMAC argued that it was not obligated, as a matter of

law, to send the Notice to defendant. GMAC argued that the requirement to send the Notice was

codified in section 9-611 of the UCC (810 ILCS 5/9-611 (West 2002)), and that the terms of that

statute were applicable only when a secured creditor resorted to “self-help” in order to recover

collateral which had gone into default. GMAC argued that it did not resort to “self-help” in order

to recover the vehicle at issue. Rather, GMAC had filed a lawsuit invoking replevin provisions

under the Code (735 ILCS 5/19-101 et seq. (West 2002)), which contained no requirement to

send the Notice. GMAC also argued that during the pendency of the lawsuit, defendant had


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voluntarily surrendered possession of the vehicle to GMAC.

       Thus, GMAC argued that there were two independent reasons why there was no

obligation to send the Notice. First, the requirement to send the Notice under section 9-611 of

the UCC (810 ILCS 5/9-611 (West 2002)) was inapplicable in a lawsuit brought pursuant to the

Code (735 ILCS 5/19-101 et seq. (West 2002)). Second, there was no requirement to send the

Notice where GMAC did not have to resort to “self-help” in order to recover the collateral at

issue where defendant voluntarily surrendered the vehicle to GMAC.

       In addition, GMAC argued that it did not matter whether GMAC was required to send the

Notice because the uncontroverted testimony of Mike Pappas was that the Notice had, in fact,

been sent. GMAC maintained that the fact that defendant testified that she did not receive the

Notice was immaterial to the question of whether GMAC sent the Notice. Further, GMAC

argued that it did not matter that GMAC was unable to produce a copy of the Notice at trial

because it was not a document that was central to GMAC’s claim.

       Defendant argued that GMAC was required to send the Notice, whether or not GMAC

was proceeding under the replevin statutes of the Code (735 ILCS 5/19-101 et seq.) (West 2002))

and whether or not defendant had voluntarily surrendered possession of the vehicle to GMAC.

Defendant argued that GMAC could not meet its burden of proof on this issue without producing

a copy of the Notice for the court’s inspection. Defendant maintained that due to GMAC’s

failure to produce a copy of the Notice, defendant’s liability for the deficiency balance claimed to

be due after the sale of the vehicle was limited to the proceeds of the sale realized by GMAC, as

set forth in section 9-626 of the UCC (810 ILCS 5/9-626 (West 2002)). Therefore, defendant


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argued that GMAC was not entitled to any additional damages from defendant.

       Both GMAC and defendant stated at trial that they were unaware of any decisions of any

court of review on these issues.

       The circuit court found that defendant had executed the retail installment contract and had

defaulted on that contract. After being served with GMAC’s complaint, defendant provided

information regarding the location of the vehicle and GMAC obtained possession of the vehicle

which secured defendant’s obligations. The circuit court also found that the sale of the vehicle

was conducted in a commercially reasonable manner and accepted GMAC’s calculations of the

deficiency balance resulting from the sale of the vehicle.

       The circuit court held that the requirement to send the Notice set forth in section 9-611 of

the UCC was applicable to the present case. The circuit court further held that without a copy of

the Notice, and despite the testimony of Mike Pappas that the Notice had been automatically

generated and sent to defendant, GMAC was unable to meet its burden of proof that it complied

with section 9-611. Therefore, GMAC’s calculation of the deficiency balance due after the sale of

the vehicle was limited, as a matter of law, to the proceeds of the sale already collected by

GMAC, as set forth in section 9-626 of the UCC. Accordingly, the circuit court entered

judgment in favor of defendant.

       On April 20, 2006, 30 days after trial, GMAC filed a motion to stay the circuit court’s

findings and reopen evidence. In that motion, GMAC sought to introduce a copy of the Notice

which GMAC claimed was sent to defendant prior to the sale of the vehicle. GMAC argued that

introduction of a copy of the notice was of the utmost importance to its case because it showed


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that defendant was on notice of GMAC’s intention to sell the vehicle and that GMAC had

complied with section 9-611 of the UCC. GMAC also argued that the failure to introduce a copy

of the Notice at trial was inadvertent, where GMAC’s counsel requested the copy from GMAC

but did not receive it prior to trial. GMAC further argued that introduction of a copy of the

Notice would not cause defendant any prejudice where the Notice was discussed at trial.

       In its response to GMAC’s motion, defendant argued that the circuit court should decline

to reopen the evidence and consider a copy of the Notice where GMAC was, in essence, seeking

to introduce newly discovered evidence without showing, pursuant to section 2-1203 of the Code

(735 ILCS 5/2-1203 (West 2002)), that it had been diligent in trying to obtain the evidence and

that the evidence was unavailable at the time of trial. Defendant also argued that GMAC’s failure

to forward the Notice to its counsel was merely inadvertent and to allow the introduction of a

copy of the Notice would prejudice defendant.

       On June 13, 2006, the circuit court denied GMAC’s motion to stay the court’s findings

and reopen evidence. In its order, the circuit court adopted the reasoning in defendant’s response

to GMAC’s motion. GMAC now appeals.

                                            II. Analysis

                              A. The Judgment in Favor of Defendant

                                       1. Standard of Review

GMAC first challenges the circuit court’s order granting judgment in defendant’s favor.

" 'The standard of review we apply when a challenge is made to a trial court’s ruling following a

bench trial is whether the trial court’s judgment is against the manifest weight of the evidence.' "


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Avenaim v. Lubecke, 347 Ill. App. 3d 855, 861 (2004), quoting Judgment Services Corp. v.

Sullivan, 321 Ill. App. 3d 151, 154 (2001). A judgment is against the manifest weight of the

evidence only when an opposite conclusion " 'is apparent or when findings appear to be

unreasonable, arbitrary, or not based on evidence.' " Avenaim, 347 Ill. App. 3d at 861, quoting

Judgment Services Corp., 321 Ill. App. 3d at 154.

                              2. Applicability of Article 9 of the UCC

       GMAC argues that the circuit court’s judgment was against the manifest weight of the

evidence where it erroneously applied the notice provisions under the UCC to the present case.

GMAC argues that the notice requirement in section 9-611 and other provisions in Article 9 of

the UCC did not apply in this case because GMAC sought an order of replevin pursuant to

section 19-101 of the Code. GMAC maintains that there is no indication in section 19-101 of the

Code that the legislature intended a “mutuality of obligation” between a replevin action under the

Code and the “self-help repossession statutes (in which 810 ILCS 5/9-611) is a part.” We

disagree.

       The record shows that GMAC filed a two-count complaint against defendant. Count I

was entitled “Replevin” and count II was labeled “Breach of Contract” and sought damages for

defendant’s breach of the retail installment sales contract. Prior to the circuit court’s scheduled

replevin hearing, GMAC repossessed the vehicle from Birdie Moore whose address was provided

by defendant. The replevin count was subsequently voluntarily dismissed with prejudice prior to

trial. Defendant argues that due to this dismissal, GMAC could not have been proceeding under a

cause of action for replevin and that Article 9 of the UCC applied in this case.


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        Replevin is strictly a statutory proceeding. Gunn v. Sobucki, 216 Ill. 2d 602, 613 (2005);

735 ILCS 5/19-101 et seq. (West 2002). To prevail, a plaintiff must recover on the strength of

his or her own title or right to immediate possession. One who has no right to possession of the

property cannot maintain replevin. Gunn, 216 Ill. 2d at 613. Section 19-101 of the Code

provides that “[w]henever any goods or chattels have been wrongfully distrained, or otherwise

wrongfully taken or are wrongfully detained, an action of replevin may be brought for the

recovery of such goods or chattels, by the owner or person entitled to their possession.” 735

ILCS 5/19-101 (West 2002). Accordingly, an action of replevin seeks possession of property

which has been wrongfully detained. 735 ILCS 5/19-101, 19-104 (West 2002). If an order of

replevin is issued, section 19-109 provides that “[t]he order for replevin shall require the sheriff,

or other officer to whom it is directed to take the property, describing it as in the complaint, from

the possession of the defendant, and deliver the same to the plaintiff unless such defendant

executes a bond.” 735 ILCS 5/19-109 (West 2002). Section 19-123 then provides that “[i]f the

plaintiff in an action of replevin fails to prosecute the action with effect, or allows a voluntary or

involuntary dismissal, or if the right of property is adjudged against the plaintiff, judgment shall be

entered for a return of the property if such property has been delivered to the plaintiff.” 735 ILCS

5/19-123 (West 2002).

        While GMAC’s complaint included a count for replevin, the vehicle was subsequently

repossessed by GMAC and the circuit court did not issue an order for replevin under the Code in

this case. GMAC also sought damages for breach of the retail installment sales contract and sold

the vehicle, which was the collateral in this case. Section 20 of the Motor Vehicle Retail


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Installment Sales Act provides that: “Unless otherwise limited by this Act, the parties shall have

the rights and remedies provided in Article 9 of the Uniform Commercial Code with respect to

default and disposition and redemption of collateral.” 815 ILCS 375/20 (West 2002). This court

has previously held that under section 20 of the Motor Vehicle Retail Installment Sales Act,

buyers and sellers subject to that Act have the rights and remedies provided in article 9 of the

UCC. See Boulevard Bank, N.A. v. Moore, 271 Ill. App. 3d 315, 320 (1995); see also

Continental Bank of Buffalo, N.A. Grove v. Krebs, 184 Ill. App. 3d 693, 697 (1989) (the

provisions of Part 5 of article 9 of the UCC govern the rights and remedies under motor vehicle

security agreements). In addition, article 9 of the UCC “applies to any transaction which is

intended to create a security interest in personal property, including goods, documents,

instruments, general intangibles, chattel paper or accounts.” Ryder v. Bank of Hickory Hills, 242

Ill. App. 3d 1042, 1045 (1993). Accordingly, we find that the circuit court properly determined

that Article 9 of the UCC, which includes the section 9-611 notice requirement, applied to this

case.

        We also note that, contrary to GMAC’s assertion, nothing in article 9 of the UCC limits its

application to instances where a creditor resorts to “self-help.” To the contrary, section 9-609(a)

of the UCC provides that after default, a secured party “(1) may take possession of the collateral;

and (2) without removal, may render equipment unusable and dispose of collateral on a debtor's

premises under Section 9-610.” 810 ILCS 5/9-609(a)(West 2002). Section 9-609(b) then

provides that the secured party may proceed either “(1) pursuant to judicial process; or (2)

without judicial process, if it proceeds without breach of the peace.” 810 ILCS 5/9-609(b) (West


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2002). Accordingly, article 9 of the UCC is not limited to a secured party that uses “self-help” to

obtain possession of the collateral.

                                  3. Proof of Notice to Defendant

       GMAC next contends that the circuit court’s judgment was against the manifest weight of

the evidence where the court found that GMAC could not show that it complied with the notice

requirement set forth in section 9-611 of the UCC without producing a copy of the notice sent to

defendant.

       As previously discussed, article 9 of the UCC governs the foreclosure of security interests

and is applicable to the instant action. In the case of defaults, section 9-610(a) of the UCC

provides that a secured party “may sell, lease, license, or otherwise dispose of any or all of the

collateral in its present condition or following any commercially reasonable preparation or

processing” in order to satisfy the indebtedness. 810 ILCS 5/9-610(a) (West 2002). "Unless

there is an agreement to the contrary, the debtor is liable for any deficiency that results from the

sale. [Citation.] Absent such an agreement, the only defenses available to a debtor against a

deficiency judgment are lack of reasonable notice of the sale and commercial unreasonableness of

the sale." Standard Bank & Trust Co. v. Callaghan, 177 Ill. App. 3d 973, 977 (1988) (discussing

Ill. Rev. Stat. 1983, ch. 26, par. 9-504 (now 810 ILCS 5/9-611(West 2002)).

       Section 9-611(b) of the UCC provides that a secured party that disposes of collateral

under section 9-610 “shall send” to the debtor “a reasonable authenticated notification of

disposition.” 810 ILCS 5/9-611(b) (West 2002). "This section does not require proof of 'actual

receipt' by the debtor to satisfy the reasonable notice requirement. [Citation.]" Ryder, 242 Ill.


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App. 3d at 1048. "To send a reasonable notice, the notification must be deposited in the mail

with postage prepaid and properly addressed." Ryder, 242 Ill. App. 3d at 1048; 810 ILCS 5/1-

201(38) (West 2002). The burden of proving compliance with the notice requirement is on the

creditor. Walczak v. Onyx Acceptance Corp., 365 Ill. App. 3d 664, 680 n.2 (2006), citing First

National Bank of Decatur v. Wolfe, 137 Ill. App. 3d 929, 932 (1985); A .A. Store Fixture Co. v.

Kouzoukas, 87 Ill. App. 3d 631, 634 (1980).

       Section 9-613 provides that the contents of a notification of disposition are sufficient if the

notification: “(A) describes the debtor and the secured party; (B) describes the collateral that is

the subject of the intended disposition; (C) states the method of intended disposition; (D) states

that the debtor is entitled to an accounting of the unpaid indebtedness and states the charge, if

any, for an accounting; and (E) states the time and place of a public disposition or the time after

which any other disposition is to be made.” 810 ILCS 5/9-613 (West 2002).

       GMAC argues that Pappas’s testimony was sufficient to show that GMAC sent the Notice

to defendant and that it was not necessary for GMAC to show that defendant received the Notice

in order to sustain its burden of proof under section 9-611(b). The record shows that defendant

testified that the Notice was never received. Pappas testified that based upon his review of

GMAC’s records regarding the events in question, after recovering the vehicle GMAC sent the

Notice to defendant. Pappas testified that the Notice informed defendant that GMAC had

recovered possession of the vehicle due to defendant’s default under the retail installment contract

and would sell the vehicle at public auction on a date certain if defendant did not redeem the

vehicle by making certain payments to defendant. However, Pappas testified that he did not have


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a copy of the Notice to show the court nor had he seen a copy of the Notice prior to testifying.

Pappas also testified that the Notice was generated automatically by GMAC’s automated billing

and collection software at the time that the vehicle was voluntarily surrendered to GMAC.

Furthermore, no copy of such notice or evidence of its contents was presented.

Based on these facts, we find that the circuit court’s conclusion that GMAC failed to prove notice

was not against the manifest weight of the evidence. A. A. Store Fixture Co., 87 Ill. App. 3d at

634.

                               4. Effect of Failure to Provide Notice

       GMAC next contends that the circuit court’s judgment was against the manifest weight of

the evidence where the court found that GMAC’s failure to provide notice acted as an absolute

bar to the entry of a deficiency judgment against defendant.

       Section 9-626 explicitly states consequences that are to follow a failure to comply with the

provisions of part 6, relating to default, of the UCC. This section provides in relevant part:

               “In an action in which the amount of a deficiency or surplus is in issue, the

               following rules apply:

                       ***

                       (2) If the secured party's compliance is placed in issue, the secured

                       party has the burden of establishing that the collection,

                       enforcement, disposition, or acceptance was conducted in

                       accordance with this Part.

                       (3) Except as otherwise provided in Section 9-628, if a secured


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                       party fails to prove that the collection, enforcement, disposition, or

                       acceptance was conducted in accordance with the provisions of this

                       Part relating to collection, enforcement, disposition, or acceptance,

                       the liability of a debtor or a secondary obligor for a deficiency is

                       limited to an amount by which the sum of the secured obligation,

                       expenses, and attorney's fees exceeds the greater of:

                               (A) the proceeds of the collection, enforcement,

                               disposition, or acceptance; or

                               (B) the amount of proceeds that would have been

                               realized had the noncomplying secured party

                               proceeded in accordance with the provisions of this

                               Part relating to collection, enforcement, disposition,

                               or acceptance.

                       (4) For purposes of paragraph (3)(B), the amount of proceeds that

                       would have been realized is equal to the sum of the secured

                       obligation, expenses, and attorney's fees unless the secured party

                       proves that the amount is less than that sum.” 810 ILCS 5/9-626

                       (West 2002).

       In First Galesburg National Bank & Trust Co. v. Joannides, 103 Ill. 2d 294, 299-301

(1984), our supreme court held that the failure of a secured party to give the required prior notice

of sale of collateral to the debtor under the UCC will result in a rebuttable presumption that the

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amount received from the sale was equal to the amount owed by the debtor. To rebut the

presumption, the secured party must prove that the sale was conducted in a commercially

reasonable manner and that the amount received from the sale was less than the amount owed on

the debt. First Galesburg, 103 Ill. 2d at 300-01; Walczak, 365 Ill. App. 3d at 680 n.2. As GMAC

correctly notes, our supreme court held that none of the UCC’s provisions provide that a lack of

notice bars a deficiency judgment. The court has rejected an absolute-bar view, under which a

secured creditor is precluded from bringing a deficiency action against the debtor unless the

debtor was given notice of the proposed sale of collateral. First Galesburg, 103 Ill. 2d at 299-

301. In the court’s view, the absolute-bar rule, by barring a deficiency action regardless of

whether the debtor has suffered damage from the lack of notice, provides a windfall to the debtor

and arbitrarily penalizes the creditor. First Galesburg, 103 Ill. 2d at 300. Walczak, 365 Ill. App.

3d at 680-81 n.2.

       In this case, the record shows that Pappas testified to the amount that the vehicle was sold

for at auction, the various costs associated with the sale of the vehicle, and credits given to

defendant after the sale. The parties also agreed before this court that the vehicle was sold at an

auction facility which handles thousands of vehicles and there was no reason to believe that the

amount received from the auction of the vehicle in this case would have been different had the

notice requirement been satisfied. The circuit court determined that the sale of the vehicle was

conducted in a commercially reasonable manner and accepted GMAC’s calculations of the

deficiency balance resulting from the sale of the vehicle. However, the court further held that

GMAC was unable to meet its burden of proof that it complied with the UCC notice requirement


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and GMAC’s calculation of the deficiency balance due after the sale of the vehicle was limited, as

a matter of law, to the proceeds of the sale already collected by GMAC. We read this as an

absolute bar to a deficiency action based on GMAC’s failure to comply with the notice

requirement in this case. Because the circuit court applied an erroneous standard, we remand this

case for the court to apply the rebuttable-presumption standard in determining the consequence

of a failure of notice to the debtor, as articulated by our supreme court in First Galesburg, 103 Ill.

2d 294.

                        B. GMAC’S Motion to Stay and Reopen Evidence

       GMAC lastly contends that the circuit court erred in denying its motion to stay the court’s

findings and reopen evidence so that GMAC could introduce a copy of the Notice it claimed was

sent to defendant. GMAC argues that it should have been allowed to introduce the Notice where

GMAC’s witness testified and was cross-examined at length regarding the Notice.

       "The denial of a motion to reopen proofs is within the sound discretion of the trial court

and will not be disturbed absent a clear abuse of that discretion." Chicago Transparent Products,

Inc. v. American National Bank & Trust Co. of Chicago, 337 Ill. App. 3d 931, 942 (2002). "In

rendering its decision, the trial court should consider whether the moving party has provided a

reasonable excuse for failing to submit the additional evidence during trial, whether granting the

motion would result in surprise or unfair prejudice to the opposing party, and if the evidence is of

the utmost importance to the movant's case." Dowd and Dowd, Ltd. v. Gleason, 352 Ill. App. 3d

365, 389 (2004). "If evidence offered for the first time in a posttrial motion could have been

produced at an earlier time, the court may deny its introduction into evidence." Chicago


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Transparent Products, 337 Ill. App. 3d at 942.

       In its motion, GMAC merely alleged that upon reviewing defendant’s affirmative defenses

in her March 7, 2006, answer to the complaint, including defendant’s statement that she did not

receive the Notice, “counsel for GMAC immediately requested that GMAC transmit a copy of the

notice to counsel for use at trial. Unfortunately, a copy of said notice was not received by

GMAC’s counsel prior to the trial [on March 21, 2006].” GMAC does not allege that the copy of

the Notice could not have been produced at trial and has not set forth a reasonable excuse for

failing to submit the evidence at trial. We therefore find that the circuit court did not abuse its

discretion in denying the motion to reopen proofs in this case.

       GMAC, nonetheless, cites A-Tech Computer Services, Inc. v. Soo Hoo, 254 Ill. App. 3d

392 (1993), and Dunahee v. Chenoa Welding & Fabrication, Inc., 273 Ill. App. 3d 201 (1995), in

support of its contention that the circuit court should have reopened the evidence to allow GMAC

to introduce a copy of the Notice. However, we find GMAC’s reliance on these cases unavailing.

       In A-Tech Computer Services, this court found no abuse of discretion where the circuit

court reopened evidence after the plaintiff rested at a preliminary injunction hearing. The purpose

of reopening the evidence was to pare down and clarify evidence already before the circuit court

concerning a list of clients of the former employee. In that case, the former employee had already

stipulated to the evidence of the original list of clients, had not objected to the admission of the

subsequent, pared down list, and had the opportunity to cross-examine the witness as to any client

names on both lists. A-Tech Computer Services, 254 Ill. App. 3d at 402-03. Unlike A-Tech

Computer Services, the copy of the Notice in this case was not already before the circuit court


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and GMAC was not seeking to merely clarify such evidence. In addition, GMAC was seeking to

reopen the evidence not during a hearing, but after judgment was already entered in this case.

       In Dunahee, this court found that the circuit court abused its discretion by refusing to

reopen the case to receive evidence before the judgment was rendered; where the plaintiff’s failure

to introduce the evidence was because of inadvertence; where the admission of the evidence

would not result in any prejudice or unfair surprise; and where the new evidence was of the

utmost importance to the plaintiff’s case. Dunahee, 273 Ill. App. 3d 210-11. Unlike Dunahee,

GMAC sought to introduce the copy of the Notice after judgment was rendered in this case.

GMAC also failed to offer a reasonable excuse for its failure to introduce the copy of the Notice

and did not allege that the Notice was new evidence that was not available at trial.

       GMAC also argues that the circuit court erred in denying its motion to stay the court’s

findings and reopen evidence by adopting defendant’s reasoning that GMAC’s motion was

essentially a motion to reconsider judgment under section 2-1203 of the Code (735 ILCS 5/2-

1203 (West 2002)).

       Section 2-1203 of the Code provides that “[i]n all cases tried without a jury, any party

may, within 30 days after the entry of the judgment or within any further time the court may allow

within the 30 days or any extensions thereof, file a motion for rehearing, or a retrial, or

modification of the judgment or to vacate the judgment or for other relief.” 735 ILCS 5/2-1203

(West 2002). The decision to grant or deny a motion for reconsideration lies within the discretion

of the circuit court and will not be reversed absent an abuse of that discretion. North River

Insurance Co. v. Grinnell Mutual Reinsurance, Co., 369 Ill. App. 3d 563 (2006). The intended


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purpose of a motion to reconsider is to bring to the court’s attention newly discovered evidence,

changes in the law, or errors in the court’s previous application of existing law. North River

Insurance, 369 Ill. App. 3d 563. “Newly discovered” evidence is evidence that was not available

prior to the hearing and trial courts should not allow litigants to stand mute, lose a motion, and

then frantically gather evidentiary material to show that the court erred in its ruling. North River

Insurance, 369 Ill. App. 3d at 572. Here, GMAC did not bring any newly discovered evidence to

the circuit court’s attention. It had been aware of defendant’s affirmative defense that she did not

receive the Notice since at least March 7, 2006, and failed to obtain a copy of the Notice by the

time the trial began on March 21, 2006. Further, GMAC did not cite to any changes in the law or

errors in the court’s previous application of the law in its motion. Therefore, we find that the

circuit court’s denial of GMAC’s motion pursuant to section 2-1203 of the Code was not an

abuse of discretion.

                                         III. Conclusion

       For the above reasons, we affirm the circuit court’s application of the notice provisions

under the UCC to the present case and the circuit court’s determination that GMAC failed to

prove notice in this case. We reverse the circuit court’s judgment and remand for the court to

apply the rebuttable-presumption standard in this case. We also affirm the circuit court’s denial of

GMAC’s motion to stay the court’s findings and reopen evidence.

       Affirmed in part and reversed in part; cause remanded.

       CAMPBELL and MURPHY, JJ., concur.




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