Judgments By Confession: How to Open (Not Vacate) Them (IL Law)

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The two key rules that govern challenging  a confessed judgment in Illinois are Supreme Court Rule 276 and  Code Section 2-1301 (735 ILCS 5/2-1301).  The latter provides that “any person for a debt bona fide due may confess judgment by himself or herself or attorney duly authorized, without process” and that the “application to confess judgment shall be made in the county in which the note or obligation was executed or in the county in which one or more of the defendants reside or in any county in which is located any property, real or personal, owned by any one or more of the defendants.”  735 ILCS 5/2-1301(c).

Confession of judgment provisions in consumer transactions are void.  A “consumer transaction” is a sale, lease, assignment, loan, or other disposition of an item of goods, services, or intangibles where the primary purpose is for personal, family, or household use.  Id.

Rule 276 provides that a motion to open a judgment by confession (“JBC”) shall be supported by (1) affidavit in the manner provided by Rule 191 for summary judgments, and be accompanied by a (2) verified answer the defendant proposes to file.

Rule 276 states that if the motion to open and supporting affidavit disclose a prima facie defense on the merits to all or part of plaintiff’s claim, the court shall set the motion for hearing. The plaintiff (the party opposing your motion to open the JBC) may file counter-affidavits.

Rule 276 continues: “If, at the hearing upon the motion, it appears that the defendant [the moving party] has a defense on the merits to the whole or a part of the plaintiff’s [the party that entered the JBC] claim and that he has been diligent in presenting his motion to open the judgment, the court shall sustain the motion either as to the whole of the judgment or as to any part thereof as to which a good defense has been shown, and the case shall thereafter proceed to trial upon the complaint, answer, and any further pleadings which are required or permitted”.  Ill. Sup. Ct. R. 276.

The defendant (or party opening a confessed judgment) can also assert counterclaims.  SCR 276.  Even if the moving party fails to establish a defense, he can still proceed on a counterclaim if the court finds that the moving party pled facts to support a counterclaim.

The burden on a party moving to open a JBC is lighter than on a summary judgment or  Section 2-619 motion to dismiss.  In fact, all the trial court does is determine whether the moving party’s motion and affidavits disclose a prima facie defense.  Kim v. Kim, 247 Ill.App.3d 910, 913-14 (2nd Dist. 1993).

On a motion to open a JBC, the court doesn’t look into disputed facts.  Instead, the court accepts as true all facts asserted by the moving party in his affidavits.

While a plaintiff (or party contesting the motion to open) may file counter-affidavits in opposition to a motion to open, the trial court may not try the merits of the case on the affidavits or counter-affidavits because this would encroach on the right to trial by jury.

A motion to open a confessed judgment is addressed to the sound discretion of the trial court and will not be overturned on review absent an abuse of discretion.

Take-aways: Rule 276 provides clear and simple requirements for a motion to open a JBC.  The moving party must attach a supporting affidavit and a proposed responsive pleading (which is verified).  The movant must also show meritorious defense and diligence in bringing the motion (similar to Section 2-1401 standards).

Once the JBC is opened, it proceeds like any other civil lawsuit, with motion practice, oral and written discovery and ultimately a trial.  I have to stress again that opening a JBC shouldn’t be a cause for too much (premature) celebration.  All it means is you can now defend a suit on the merits.  I say this because I have seen multiple instances where a defendant successfully opened a JBC, acted like he won the case (and taunted me too!), only to lose on a 2-619 motion or summary judgment motion a very short time later.

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PaulP

Litigation attorney at Fisher Kanaris, P.C. representing businesses and individuals in all types of commercial disputes.

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