Assigning A Breach of Contract Claim In Illinois and The Available Defenses

Contract rights are assigned fairly often, especially in the mortgage loan and credit card contexts.  In the former mortgage scenario, it’s common for a promissory note to be assigned multiple times during the note’s lifespan.  When there’s eventually a note default, it becomes a challenge for the noteholder to trace how it came into the note’s possession.  Repeated note assignments also provide the note maker (person who signed the note) a ready-made defense to a lawsuit based on the note.  The noteholder plaintiff then has the burden of proving to the court that it has the right to sue on the note.

Because assignments are so prevalent and confusion often results as to who can enforce contract rights, it’s important from both plaintiff and defense sides to have a working knowledge of what claims can be assigned and what defenses are available to a a defendant sued by an assignee of a contract claim.

The basics: a person that has a claim against another has a “chose in action.”  Classic examples of a chose in action include a claim for money owed on a debt, a right to stock shares or a claim for damages in tort.  Black’s Law Dictionary 258 (8th ed. 2004)

Choses in action are generally assignable. An assignment transfers title to the chose in action to the assignee, who becomes the real party in interest.  The assignee of the chose in action may then sue on the claim in his or her own name.

An action brought by an assignee is subject to any defense or set-off existing before notice of the assignment is given to the defendant.  735 ILCS 5/2–403(a).  But the set-off or defense must relate specifically to the assigned claim.  It can’t pertain to something extraneous to that claim.

Example, if Company X assigns its 2015 breach of contract claim against Person Y to me and I sue Person Y, Person Y can’t raise as a defense a $1,000 claim Person Y has against Company X from a 2013 contract.  The two contracts are different and involve different underlying facts. Person Y can only defend based on the same 2015 contract Company X assigned.

Puritan Finance Corp. v. Bechstein Const. Corp. 2012 IL App(1st) 112261 illustrates what defenses a defendant has versus a contract claim assignee under the common law and under Article 9 of the UCC.

The plaintiff was the assignee of a bankrupt trucking company (the Assignor) that had previously done business with the defendant.  The Assignor was owed monies by the defendant and assigned its claim to the plaintiff, a secured creditor of the Assignor.

After the plaintiff sued, the defendant asserted defenses based on an unrelated claim it had against the Assignor before the plaintiff’s involvement.  The court granted judgment for the plaintiff after a bench trial for the full amount of its claim (about $22,000) and the defendant appealed.

Affirming the judgment for the assignee, the court first rejected the defendant’s set-off claim under Code Section 2-403(a).  Since the defendant’s set-off involved a contract that was separate from the one being sued on, the defendant couldn’t use this separate contract as a defense to the assignee’s lawsuit.

The defendant’s Article 9 defense was a closer call.  UCC Article 9 governs security interests in personal property as collateral to secure a debt.  Section 9-404(a) of the UCC (810 ILCS 5/9-404) provides that an account debtor can assert against the assignee (1) any defense he (the debtor) had against the assignor “arising from the transaction” giving rise to the assignee’s claim; and (2) any other defense the debtor has against the assignor that accrues before the debtor received notice of the assignment.

Here, the defendant argued that under paragraph (2) of 9-404, it could assert defenses that related to a separate contract between it (the defendant) and the Assignor.  The court disagreed and gave a narrow reading to Section 9-404.

It held that since the defendant didn’t and couldn’t yet file suit against the Assignor before the assignment of the contract to the assignee/plaintiff, the defendant’s claim hadn’t “accrued” within the meaning of Section 9-404.  As a result, judgment for the plaintiff was affirmed.


– Where a defendant is sued by an assignee of a contract claim, it will be difficult to challenge the claim unless the defendant has claims or defenses against the assignor that are transactionally related to the assigned claim.  If the defendant’s defense relates to a separate, unrelated transaction, the defense or set-off will likely fail;

– Under Section 9-404, a defense “accrues” where the defendant actually has a viable cause of action against the assignor, such as where there has been a default in assignor’s payment obligations, instead of just a bare claim that a defendant is owed money on an unpaid invoice.

Summary of Business Records Allowed Into Evidence In Ponzi Scheme Claw-back Hearing – 11th Cir.

The interplay between Federal Rules of Evidence 1006 (summaries) and 803(6)(business records) is examined by the 11th Circuit Court of Appeals in In re International Management Associates, LLC, 2015 WL 1245503 (C.A.11 Ga.), a case where a trustee was able to admit a summary of bulky business records into evidence and avoid a $200K transfer from the debtor and Ponzi scheme operator (IMA) to the investor defendants.

(A Ponzi scheme typically involves a business entity that doesn’t really operate any legitimate business and that uses the principal investments of newer investors to pay older investors.  In reality though, the investors are being paid their own principal or that of other investors.)

The defendants in the IMA case received over $600K in payouts from IMA over a several-year period.  IMA’s trustee sought to avoid (recover) the most recent $200K payment to the defendants.

At the hearing, the trustee offered summaries of the debtor’s business records in evidence to support the avoidance claim.  The bankruptcy court allowed the summaries into evidence and entered judgment for the trustee.  The Georgia district court affirmed and the defendants appealed to the 11th Circuit on the basis that the summaries should have been excluded since the underlying records weren’t authenticated or offered into evidence at the hearing.

Held: affirmed

Q: Why?

A: Federal Rule of Evidence 1006 allows a “summary, chart or calculation” to be used in evidence to prove the content of voluminous writing (or photographs or recordings) that can’t be conveniently reviewed by the court.

The main qualification is that the actual records underlying the summary must be made available to the opponent for copying and examination.  The summary evidence proponent doesn’t have to offer the underlying documents into evidence but he must establish that those documents would have been admissible in evidence if he did offer them.  FRE 1006.

To make the requisite showing for admissibility under Rule 1006, the person offering the summary must establish that the underlying documents are authentic and meet the requirements for admissibility as business records under FRE 803(6) – the business records rule.

The authenticity burden is light.  All the proponent must show is that the documents are what they appear to be and he can do this through the testimony of a witness who is knowledgeable about the documents.

To meet the business record admissibility test under FRE 803(6), the offering party must show (1) that the record was made at or near the time by – or from information transmitted by someone with knowledge; and (2) the record was kept in the course of a regularly conducted activity, and (3) making the record was a regular practice of a given business.  FRE 803(6)(A)-(C).

A qualified witness to testify on business records is one who can explain the system of record keeping utilized by a business.  He does not have to have firsthand knowledge or be the author of the records, though. As long as the movant establishes enough circumstantial evidence to show the documents are trustworthy, the record can be admitted in evidence.

Here, the court found that the trustee’s evidence summary was supported by trustworthy business records.  While the trustee didn’t author or maintain IMA’s records in the first instance, he engaged in thorough examination and investigation into the records’ preparation and storage and interviewed multiple witnesses who played integral roles in the creation of the underlying records.  The trustee also cross-referenced IMA’s records with those of various financial institutions that did business with IMA.

Considered cumulatively, this was enough circumstantial evidence for the court’s avoidance judgment for the trustee.


– Summaries of business records are admissible where the underlying documents are voluminous and are themselves admissible as business records under FRE 803(6);

– A witness testifying as to business records doesn’t have to be the creator of a given record.  It’s enough that the witness is familiar with a company’s process utilized to create and store the records in question;

– the more meticulous a third party’s (like a trustee or receiver) efforts are to verify the accuracy of business records, the more likely that third party can defeat a hearsay objection at trial or hearing.


Lost Profits and the ‘New Business Rule’ – A Case Snapshot

The Northern District of Illinois recently denied a foreign truck parts supplier’s claim for lost profits in a contract dispute involving an Illinois-based global truck manufacturer.  In doing so, the court expansively applied the “new business rule” to the plaintiff despite its forty-year history in the automotive parts industry.

In Clutch v. Navistar, 2015 WL 1299281 (N.D.Ill. 2015), the plaintiff parts supplier sued the manufacturing giant for breaching an agreement to help plaintiff unload a multi-million dollar surplus of clutches that plaintiff made for the defendant under a cancelled supply contract.  The plaintiff alleged that defendant didn’t adhere to its promise to help plaintiff market the unsold clutches.

The court granted summary judgment for the defendant since the plaintiff failed to prove damages under Illinois contract law.

The reasons:

An Illinois breach of contract plaintiff must show (1) the existence of a contract, (2) performance by the plaintiff, (3) breach by the defendant and (4) resulting damages.

Damages don’t have to be shown with laser-like precision.  Instead, a plaintiff must show a “reasonable basis for computing” the damages and must show lost sales damages to a “reasonable degree of certainty.”  Otherwise, a plaintiff’s recovery is limited to nominal damages (typically, $1).

Lost sales damages generally require expert testimony since those damages usually require “specialized knowledge” derived from detailed financial and marketing analyses.  If a plaintiff offers “lay” lost profits damages testimony (“I would have earned $1 million in sales if the defendant didn’t breach the contract”) without any sufficient foundation for that testimony, the testimony can be excluded under Federal Rule of Evidence 701.

Lost profits are especially hard to prove with new businesses that lack a financial track record with which to gauge estimated profits.  Under the new business rule, a new business or, like here, an established business selling new products, can’t recover lost profits.

In this case, the plaintiff’s procurement director testified via affidavit of the millions in lost profits damages and ancillary expenses.  The court found that the testimony lacked foundation.  The director never conducted a market analysis and failed to provide evidence that established a basis for his lost sales testimony.  As a result, the testimony was viewed as conclusory and stricken by the court.

The court also found that the new business rule defeated plaintiff’s damages.  While plaintiff had a decades-long history in making and selling truck clutches, the specific clutches that were the subject of the suit were a different kind than plaintiff usually makes and sold under a different brand name.  Because the plaintiff hadn’t previously supplied the clutches that were specific to the suit, the court viewed the plaintiff as new and found the plaintiff lacked a sufficient sales history for the clutches to support lost profits damages.

Finally, the court rejected the plaintiff’s claim for over $1M in expenses incurred including inventory, storage and insurance payments for the clutch surplus.  The court viewed these expenses more akin to “ordinary overhead” charges that would have been incurred in the ordinary course of plaintiff’s business.  Since overhead, by definition, is incurred regardless and not the result of a specific contract breach, the plaintiff was precluded from recovering the expense damages.  As a result, the plaintiff’s expenses weren’t imputed to the defendant.


Even a well-established business can be considered “new” if the particular product or market is one the business hasn’t previously serviced

On summary judgment, the proverbial put up or shut up litigation moment, a respondent must do more than offer conclusory affidavit testimony.  Here, the plaintiff’s principal’s failure to conduct a market analysis for the clutch surplus was fatal to the plaintiff’s breach of contract suit.