Find Legal Information

THIRD DIVISION
June 25, 2003

No. 1-01-4233

PRESIDING JUSTICE SOUTH delivered the opinion of the court:

Defendant, third-party plaintiff, MidAmerica Bank, FSB (MidAmerica), appeals fromtwo orders entered by the circuit court of Cook County following a bench trial. The first orderwas a judgment in favor of plaintiff, Clean World Engineering (Clean World), and againstMidAmerica following a bench trial. The second order granted third-party defendant's, TCFBank Illinois (TCF), motion for reconsideration of the court's prior order denying its motion forsummary judgment as to count I of MidAmerica's third-party complaint and granting TCF'smotion for summary judgment against MidAmerica.

Count I of Clean World's complaint, which was directed against MidAmerica, allegedthat it violated section 4-401 of the Illinois Uniform Commercial Code (810 ILCS 5/4-401 (West2000)) by unlawfully charging its account for items (forged checks) that were not properlypayable. MidAmerica filed an amended third-party complaint against TCF Bank Illinois. CountI alleged that TCF breached its presentment warranties to MidAmerica pursuant to sections 3-417and 4-208 of the Illinois Uniform Commercial Code (810 ILCS 5/3-417, 4-208 (West 2000))when it presented the forged checks for collection. Count II of the complaint alleged a breach ofthe transfer warranties when MidAmerica paid TCF on checks that were presented to it forpayment when those checks were not authorized, and that TCF was not entitled to enforce thedraft or obtain payment in violation of sections 3-417(a)(1) and 4-208(a)(1) of the IllinoisUniform Commercial Code (810 ILCS 5/3-417(a)(1), 4-208(a)(1) (West 2000)). Count II is not asubject of this appeal.

The pertinent facts as adduced at trial are as follows: Clean World is an environmentalengineering company specializing in providing pollution control services to government andindustrial clients. Rita Kapur is Clean World's president, Victor Bhatia is its senior vicepresident, and Terri Schulz is its office manager.

On June 22, 1997, Nicholas Fredich placed an ad in the Denver Post classified sectionseeking applicants for a fictitious bookkeeping position. He used one of the resumes solicited bythis ad in order to obtain a date of birth and social security number of "Robert C. Landrum"whose identity and accounting background he assumed in order to apply for a bookkeepingposition with Clean World. He and Mario Carasco created a company called Vichor Corporationand opened a bank account for that company at TCF Bank. Fredich intended to use blank checksfrom Clean World's checking account with MidAmerica to make deposits into Vichor's accountat TCF and then withdraw those funds from that account for his personal use.

Kapur, in her capacity as president of Clean World, interviewed Fredich posing asLandrum for a bookkeeper's position with Clean World. She reviewed his application, checkedhis references, and obtained a credit report using the social security number that he had provided. She also called "Landrum's" prior employer, Mario Carasco, who reportedly was the president ofMid-Continental Investment. Carasco gave Kapur a very favorable recommendation of"Landrum."

Schulz, in her capacity as Clean World's office manager, conducted a credit check on"Landrum." Based upon the favorable background and credit checks, Kapur extended an offer ofemployment to "Landrum," and he began working at Clean World on September 2, 1997, as abookkeeper.

On Wednesday, September 17, 1997, "Landrum" left work early because he claimed hehad received an emergency phone call that his mother-in-law had just died. Later, Kapur left amessage on his home answering machine, expressing her condolences for his loss and requestingthat he inform her as to when he would be returning to work. "Landrum" called Kapur back onThursday, September 18, 1997, stating that he needed a couple of days off but would return towork on Saturday. Kapur told him that he could come back to work on Monday.

On Monday, September 22, 1997, after "Landrum" failed to show up for work, Kapurasked Schulz whether he had called in and said he was going to be late. Schulz did not have anyinformation because she had not spoken to or received a message from him. Kapur and Schulzmade several calls to "Landrum's" home and each time received a recorded message requesting amail code. Kapur attempted to call Carasco to determine if "Landrum" had gone back to workfor him, but she only reached an answering service.

By this time Kapur was becoming suspicious of "Landrum," so she checked her office todetermine if anything was missing. She unlocked the file cabinet and with Schulz's assistancediscovered that some checks were missing. She immediately informed Bhatia, and the two ofthem met with MidAmerica's manager, Kathy Filafusi, who informed them that the missingchecks had already been processed by the bank, and that deposits had been made into otheraccounts of which Kapur and Bhatia had no knowledge. Kapur and Bhatia immediately filed areport with the local police.

A total of $137,445.02 had been taken from Clean World's account at MidAmerica. MidAmerica recovered $85,516.82 on behalf of Clean World but refused to credit Clean World'saccount for the remaining $51,928.20, which included three checks totaling $31,900.20 and awire transfer in the amount of $20,020. Those checks were as follows: Check number 5150payable to Vichor Company in the amount of $21,326.52 and presented to TCF for deposit onSeptember 10, 1997; check number 5244 also payable to Vichor Company in the amount of$10,139.39 and presented to TCF for deposit on September 10, 1997; check number 5245 in theamount of $442.29 payable to Ameritech; and check number 5171 which evidenced a wiretransfer in the amount of $20,020.

Clean World's bank account with MidAmerica listed Bhatia and Kapur as the only twosignatories, and all of the checks purportedly bore Bhatia's signature. Bhatia later determinedthat the signatures on the missing checks and the unauthorized wire transfer application had beenforged. Fredich was ultimately arrested and prosecuted for his crimes and pled guilty to theforgeries in the United States District Court for the Northern District of Illinois.

At the close of the evidence, the trial court found in favor of Clean World and awarded it$41,485.91. MidAmerica then filed a motion for reconsideration.

On the third-party complaint, TCF filed a motion for summary judgment prior to trial, arguing that it was not in breach of its presentment warranty to MidAmerica because there wasno evidence that TCF knew that the drawer's signatures on the drafts were unauthorized orforged. MidAmerica filed its response, stating that it was not required to prove knowledge, andthat TCF bore the burden of establishing the validity of the drawer's signature. The court grantedTCF's motion as to count II, the transfer warranties, and granted MidAmerica's cross-motion forsummary judgment as to count I, the presentment warranties, and awarded it $31,465.91 for thetwo forged checks deposited with TCF. TCF subsequently filed a motion for reconsideration.

At the conclusion of the trial on Clean World's complaint against MidAmerica, the trialcourt granted TCF's motion for reconsideration as to count I, the presentment warranties, anddenied MidAmerica's motion to reconsider the judgment in favor of Clean World.

MidAmerica has raised two issues for our consideration: (1) whether the circuit courterred in entering judgment in favor of Clean World and against MidAmerica; and (2) whether thecircuit court erred in granting summary judgment in favor of TCF on MidAmerica's third-partycomplaint.

Initially, MidAmerica argues that the trial court's judgment in favor of Clean World wasagainst the manifest weight of the evidence because that evidence demonstrated that CleanWorld's negligence substantially contributed to the forged signatures. MidAmerica points toFredich's deposition, which was entered into evidence at trial. Fredich testified that while he wasworking at Clean World as "Landrum," he was given full and complete access to the checks andpayroll records, all of which were kept in Kapur's office. According to his testimony, whileKapur did, in fact, lock her office door at the end of the day, the credenza where she kept thechecks was never locked. Kapur told him that he could take blank checks from that credenza ashe needed them. Fredich also testified that he had access to the accounting computer programthat was used for printing checks, and that the computer system did not have security passwordsto prohibit his access to that system. According to Fredich, Clean World did not have a policywith respect to the safeguarding and security of its checking account.

MidAmerica maintains that Fredich's testimony proves that Clean World was negligent inmaintaining its checks and computer system, and that such negligence substantially contributedto the forgeries. MidAmerica also maintains that Fredich's testimony is substantiallycorroborated by the fact that he as a new employee who was only on the job a few days was ableto obtain access to the company checks and computer system with relative ease.

A reviewing court should not overturn a trial court's findings merely because it does notagree with the lower court or because it might have reached a different conclusion had it been thefact finder. Bazydlo v. Volant, 164 Ill. 2d 207, 214 (1995). The trial judge, as the trier of fact, isin a position superior to a reviewing court to observe witnesses while testifying, to judge theircredibility, and to determine the weight their testimony should receive. In re Application of theCounty Treasurer, 131 Ill. 2d 541, 549 (1989). Consequently, where the testimony is conflictingin a bench trial, the court's findings will not be disturbed unless they are against the manifestweight of the evidence. Green v. City of Chicago, 73 Ill. 2d 100, 110 (1978). A trial court'sjudgment is against the manifest weight of the evidence when its findings appear to beunreasonable, arbitrary, or not based on the evidence. Wildman, Harrold, Allen & Dixon v.Gaylor, 317 Ill. App. 3d 590, 599 (2000). A trial judge's conclusions on factual issues areentitled to the same weight as a jury verdict. Wildman, 317 Ill. App. 3d at 597.

The Illinois Uniform Commercial Code (Code) addresses the liabilities of parties in thetype of situation we have here. Section 3-406 of the Code provides in pertinent part:

"(a) A person whose failure to exercise ordinary caresubstantially contributes to *** the making of a forged signature onan instrument is precluded from asserting *** the forgery against aperson who, in good faith, pays the instrument or takes it for valueor for collection." 810 ILCS 5/3-406 (West 2000).

In Chicago Heights Currency Exchange, Inc. v. Par Steel Products & Service Co., 123 Ill.App. 3d 1054 (1984), one of the defendants, the general manager of Par Steel, was authorized tosign checks on the company checking account. After his employment was terminated and hisauthority to sign the company checks was cancelled, he signed and delivered two checks drawnon the company account. The plaintiff cashed the checks. When those checks were presented tothe drawee bank for payment, they were returned marked unpaid. The plaintiff brought theaction against defendant and Par Steel, alleging that Par Steel's failure to notify the plaintiff thatdefendant's authority to sign checks had been withdrawn and that defendant possessed checksthat he could no longer sign constituted negligence. Chicago Heights Currency Exchange, 123 IllApp. 3d at 1054-55. Par Steel asserted section 3-406 of the Code as a defense. This court heldthat the evidence in the record did not establish that Par Steel's actions constituted negligencethat substantially contributed to the making of the unauthorized signatures. Chicago HeightsCurrency Exchange, 123 Ill. App. 3d at 1056. The court stated:

" '[T]he meaning of sec. 3-406 is best reflected by precluding adrawer from recovery under these or similar circumstances only where his negligent conduct contributes to the forgery, not merely to the unwarranted issuance of the checks ***." (Emphasisomitted.) Chicago Heights Currency Exchange, 123 Ill. App. 3d at1056, quoting Bagby v. Merrill Lynch, Pierce, Fenner & Smith,Inc., 491 F.2d 192, 197 (8th Cir. 1974).

In order to prevail in the case at bar, MidAmerica was required to prove that CleanWorld's negligence substantially contributed to the forgery. At the close of the evidence, the trialcourt held that nothing Clean World did contributed to the forgeries. In its written order, thecourt referred to the testimonies of Bhatia, Kapur and Schulz as to how they safeguarded theirchecks in order to protect the security of those checks. Specifically, the court referred to Kapur'stestimony that the checks were always maintained in a file cabinet in her office, and that thecabinet was locked most of the time when its contents were not being used; that the office inwhich the file cabinet was located was locked whenever she was out of the office; and that thekey to the file cabinet was kept in her desk, which was locked whenever she was out of theoffice. The court found that all of plaintiff's witnesses, including Kapur, were credible and wasconvinced by a preponderance of the evidence that Clean World took reasonable steps tosafeguard the security of its checks which were ultimately misappropriated by "Landrum." Thecourt also found that plaintiff conducted a reasonable and thorough inquiry into "Landrum's"background before hiring him.

As to Fredich's testimony that plaintiff did not take reasonable measures to safeguard itschecks, the court did not find him to be a credible witness because he was a convicted felon whohad led a life of crime for several years before securing a job at Clean World and had admittedlystolen plaintiff's checks in an elaborate scheme to defraud it. In short, the court concluded that"an innocent employer *** was simply no match for an experienced, professional scam artist likeMr. Landrum."

Based upon our review of the record, we find there was sufficient evidence upon whichthe court could conclude that there was no negligence on the part of Clean World whichsubstantially contributed to the making of the forged signatures. The record is clear that CleanWorld took every precaution to maintain the security of its checks by keeping them in a lockedfile cabinet in Kapur's office. Although Kapur testified that the cabinet was unlocked when shewas in her office, she locked it and kept the key in her locked desk whenever she left her office. The court was convinced by a preponderance of the evidence that whatever security measures thecompany would have undertaken, "Landrum" would have devised a way to circumvent them inorder to follow through on his fraudulent scheme. We do not find that the judgment was againstthe manifest weight of the evidence, and, therefore, shall not disturb that judgment.

MidAmerica next contends that the court erred in granting TCF's motion for summaryjudgment on count I of its third-party complaint. A reviewing court conducts a de novo review ofthe evidence in summary judgment cases. Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill.2d 107, 113 (1995). The reviewing court must construe all evidence strictly against the movantand liberally in favor of the nonmoving party. Espinoza, 165 Ill. 2d at 113. Where the pleadings,depositions and affidavits shows that there is no genuine issue of material fact, the moving partyis entitled to judgment as a matter of law. First of America Trust Co. v. First Illini Bancorp, Inc.,289 Ill. App. 3d 276, 283 (1997).

To support its contention that the grant of summary judgment to TCF was error,MidAmerica maintains that TCF breached the presentment warranties when it sought andreceived payment from MidAmerica on the two forged checks, and that it was not required toprove that TCF had knowledge of those forgeries because knowledge is irrelevant to a finding ofa breach of presentment of warranties. TCF responds that MidAmerica was, in fact, required toprove such knowledge, and that there was no evidence establishing that it, TCF, knew that thesignature of the purported drawer of the draft was unauthorized or forged.

This issue is governed by the Code's sections dealing with presentment warranties: section 3-417, which addresses negotiable instruments; and section 4-208, which addresses bankdeposits and collections. 810 ILCS 5/3-417, 5/4-208 (West 2000). Section 3-417 of the Code,Presentment Warranties, provides in pertinent part:

"(a) If an unaccepted draft is presented to the drawee for payment or acceptance and the drawee pays or accepts the draft,(i) the person obtaining payment or acceptance, at the time of presentment, and (ii) a previous transferor of the draft, at the time of transfer, warrant to the drawee making payment or accepting thedraft in good faith that:

(1) the warrantor is or was, at the time the warrantortransferred the draft, a person entitled to enforce the draft orauthorized to obtain payment or acceptance of the draft onbehalf of a person entitled to enforce the draft;

(2) the draft has not been altered; and

(3) the warrantor has no knowledge that the signature of thepurported drawer of the draft is unauthorized." 810 ILCS5/3-417(a) (West 2000).

See also 810 ILCS 5/4-208(a) (West 2000) (substantially similar to section 3-417(a)).

Subsection (a)(3) retains the rule first announced in Price v. Neal, 3 Burrows Rep. 1354,97 Eng. 871 (1762), namely, that a drawee takes the risk that the drawer's signature isunauthorized unless the person presenting the draft has knowledge that the drawer's signature isunauthorized. 810 ILCS Ann. 5/3-417, Uniform Commercial Code Comment - - 1992, at 261(Smith-Hurd 1993).

In that case, the drawee in two forged bills, only one of which had been accepted prior topayment, sought to recover the monies paid to the parties producing the bills for payment. Bothbills had been endorsed to the defendant for a valuable consideration, and he acted without theleast suspicion of the forgeries. The forgeries were conceded, and the forger was hanged. Plaintiff brought an action for recovery of that money. Lord Mansfield in his written opinionsaid: "[T]he plaintiff can not recover the money, unless it be against conscience in the defendant,to retain it ***. But it can never be thought unconscientious in the defendant, to retain thismoney, when he has once received it upon a bill of exchange indorsed to him for a fair andvaluable consideration, which he had bona fide paid, without the least privity or suspicion of anyforgery. It was incumbent upon the plaintiff, to be satisfied 'that the bill drawn upon him wasthe drawer's hand' before he accepted or paid it." Price, 3 Burrows Rep. at 1357, 97 Eng. at 872.

The rule in Price has been generally accepted by the courts in this country and has beenfollowed in Illinois since as far back as 1874. See First National Bank of Quincy v. Ricker, 71Ill. 439 (1874) (the drawee of a bank check is presumed to know the signature of the drawer; ifthe drawee pays a forged check to the holder, he will not be entitled to recover the money sopaid, where there has been fraud practiced upon him). Moreover, it is generally stated that therule announced in Price states the law applicable in those states that adopted "an act in regard tonegotiable instruments ***" (Negotiable Instruments Law) (Ill. Rev. Stat. 1908, ch. 98, par. 19 etseq.). That act was adopted by the State of Illinois in 1907. Ill. Rev. Stat. 1908, ch. 98, par. 19 etseq. See also F.J. Lewis Manufacturing Co. v. Pennsylvania Railroad Co., 258 Ill. App. 216, 222(1930).

Section 23 of the 1907 Act provided as follows:

"Where a signature is forged or made without authority, itis wholly inoperative, and no right to retain the instrument or togive a discharge thereof, or to enforce payment thereof against anyparty thereto, can be acquired through or under such signature,unless the party against whom it is sought to enforce such right isprecluded from setting up the forgery or want of authority." Ill.Rev. Stat. 1908, ch. 98, par. 41.

Section 62 of that act provided as follows:

"The acceptor by accepting the instrument engages that hewill pay it according to the tenor of his acceptance, and admits:

1. The existence of the drawer, the genuineness of hissignature, and his capacity and authority to draw the instrument;and

2. The existence of the payee and his then capacity toindorse." Ill. Rev. Stat. 1908, ch. 98, par. 80.

The weight of authority indicates that the enactment of section 62 was the intention toadopt the doctrine of Price, and that said section is applicable to payment or acceptance by thedrawee of a forged bill or check. Lewis Manufacturing Co., 258 Ill. App. at 223. The court inthat case also held that the law as announced in Price was the law of this state. LewisManufacturing Co., 258 Ill. App. at 223.

It is thus clear that the doctrine of Price has long been the law within this state.

Applying the Price rule to the instant case, the record establishes that "Landrum" opened a bankaccount for his fictitious company, Vichor Corporation, at TCF Bank with the specific purpose todeposit Clean World's forged checks into that account. Two checks, No. 5150 in the amount of$21,326.52, and No. 5244 in the amount of $10,139.39, both made payable to Vichor, werepresented to TCF for deposit on September 10, 1997. In reviewing the record, we find noevidence from which it could reasonably be inferred that TCF knew that the signatures on thosechecks were forged.

MidAmerica, however, argues that TCF's knowledge of the forgery is irrelevant to afinding of a breach of presentment of warranties, and relies on this court's decision in FirstNational Bank of Chicago v. MidAmerica Federal Savings Bank, 303 Ill. App. 3d 175 (1999) assupport for that contention. We find that MidAmerica's reliance on First National is misplacedbecause that case involves a forged endorsement rather than a forged drawer's signature. FirstNational, 303 Ill. App. 3d at 182. In that case, this court held that the burden is "directly uponthe first bank in the collection chain to make sure that the endorsements are valid." FirstNational, 303 Ill. App. 3d at 182. The court's rationale behind that holding was that the first bankwas in a better position to insure that it is taking the item from someone with good title, and ispresumed to have had the best opportunity to have prevented the loss. First National, 303 Ill.App. 3d at 182.

That situation, however, is not the one with which we are faced in the instant case. Here,TCF was presented with checks which contained a forged drawer's signature from an account atMidAmerica. Those checks were subsequently presented to MidAmerica for payment, and fundswere then released from Clean World's account to honor the checks. When it initially deniedTCF's motion for summary judgment, the trial court relied on First National and found that TCFbreached its presentment warranty to MidAmerica, and that MidAmerica was not required toprove that TCF had knowledge that the signatures on the stolen checks were unauthorized. Uponreconsideration of that motion, the court concluded that it had erroneously relied upon FirstNational, and acknowledged that it should have relied upon section 3-417(a) of the Codepertaining to a forged drawer's signature rather than section 3-417(c), which pertains tounauthorized endorsements. We find that the trial court was correct in making that distinctionbecause this issue surrounds the forged drawer's signature.

Under sections 3-417(a)(3) and 4-208(a) of the Code, which apply to unauthorizeddrawers' signatures, in order for the warrantor, in this case TCF, to be in breach of itspresentment warranty, it must have knowledge that the signature of the drawer is unauthorized. 810 ILCS 5/3-417(a)(3), 4-208(a)(3) (West 2000). Inasmuch as no evidence was ever presentedthat TCF knew that the signature of the drawer, Bhatia, was unauthorized, it could not have beenin breach of its presentment warranty. Some evidence of TCF's knowledge of the forgedsignatures was required; however, MidAmerica did not present such evidence. The trial courtwas correct in its assessment that the applicable statute was section 3-417(a) rather than section3-417(c), and that, therefore, MidAmerica was required to prove TCF's knowledge of theunauthorized drawer's signatures, which it failed to do. For that reason, we conclude that the trialcourt correctly granted TCF's motions for reconsideration and summary judgment.

Lastly, TCF has asked us to determine that this appeal is frivolous and to imposesanctions upon MidAmerica and its attorneys. A frivolous appeal is one that is not reasonablywell-grounded in fact and not warranted by existing law or a good-faith argument for theextension, modification or reversal of existing law. 155 Ill. 2d R. 375(b); Gunthorp v. Golan,184 Ill. 2d 432, 441 (1998).

Rule 375(b) sanctions are penal and should be applied only to cases which fall strictlywithin its terms. Beverly v. Reinert, 239 Ill. App. 3d 91, 101 (1992). We find that MidAmericahas made a good-faith argument based upon a reasonable interpretation of the language of theCode, and that its appeal is not frivolous. For that reason, we decline to impose sanctions.

Based upon the foregoing analysis, the judgment of the circuit court is affirmed.

Affirmed.

HOFFMAN and WOLFSON, JJ., concur.