Board of Managers of Dominion Plaza One Condominium Ass'n No. 1-A v. Chase Manhattan Bank, N.A.

452 N.E.2d 382, 116 Ill. App. 3d 690, 72 Ill. Dec. 257, 1983 Ill. App. LEXIS 2091
CourtAppellate Court of Illinois
DecidedJuly 27, 1983
Docket82-835
StatusPublished
Cited by31 cases

This text of 452 N.E.2d 382 (Board of Managers of Dominion Plaza One Condominium Ass'n No. 1-A v. Chase Manhattan Bank, N.A.) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Board of Managers of Dominion Plaza One Condominium Ass'n No. 1-A v. Chase Manhattan Bank, N.A., 452 N.E.2d 382, 116 Ill. App. 3d 690, 72 Ill. Dec. 257, 1983 Ill. App. LEXIS 2091 (Ill. Ct. App. 1983).

Opinion

JUSTICE REINHARD

delivered the opinion of the court:

Defendant, Chase Manhattan Bank, N.A., a national banking association, appeals, pursuant to Supreme Court Rule 306 (87 Ill. 2d R. 306), from the denial of its motion to quash service of process and to dismiss, as to it, the complaint of plaintiff, Board of Managers of Dominion Plaza One Condominium Association No. 1-A. The only issue raised on appeal is whether section 94 of the National Bank Act (12 U.S.C. sec. 94 (1976)) renders venue improper in Du Page County in a suit against defendant, a national banking association, not chartered or located in Illinois.

Plaintiff filed suit against defendant and others on January 11, 1982, alleging various theories of recovery for damages arising from the construction of the Dominion Plaza Condominium Building No. 1-A (Dominion). Defendant held the mortgage on Dominion pursuant to an assignment it had received from Chase Manhattan Mortgage and Realty Trust (Chase Trust) on May 6, 1977. Prior to this assignment Chase Trust had been operating as a mortgagee in possession pursuant to a February 1, 1976, agreement with NEI, Corp., the developer of Dominion.

Defendant filed a special appearance under section 20 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 20), recodified as section 2—301 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2—301), objecting to the jurisdiction of the court, and a motion to quash service of process and to dismiss the complaint. Defendant filed the affidavit of Howard N. Gorham, defendant’s vice-president, with its motion. This affidavit stated that defendant’s principal place of business was New York City, New York; that defendant was not qualified to transact business in Illinois; and that it did not transact business in Illinois. Defendant argued that its motion to quash service and to dismiss should be granted because defendant was not located in Illinois and that, therefore, venue was improper under section 94 of the National Bank Act (12 U.S.C. sec. 94 (1976)). On September 22, 1982, the trial court denied defendant’s motion, finding that defendant had waived the section 94 venue privilege by accepting the assignment from Chase Trust. The court found that Chase Trust was not entitled to assert the section 94 privilege and that therefore its assignee, defendant, was not entitled to assert this privilege because an assignee cannot assert “any defense or statutory privilege” not available to its assignor.

Defendant filed a motion for leave to appeal in this court pursuant to Supreme Court Rule 306 (87 Ill. 2d R. 306) on October 22, 1982. We granted leave on December 16,1982.

Plaintiff does not deny that defendant is a national banking association. At the time plaintiff initiated this suit, and at the time the trial court denied defendant’s motion to quash and to dismiss, venue in suits against national banking associations was governed by section 94 of the National Bank Act (12 U.S.C. sec. 94 (1976)), which provided that:

“Suits, actions, and proceedings against any association under this chapter may be had in any district or Territorial court of the United States held within the district in which such association may be established, or in any State, county, or municipal court in the county or city in which said association is located having jurisdiction in similar cases.”

Effective October 15, 1982, Congress amended section 94 to provide that:

“Any action or proceeding against a national banking association for which the Federal Deposit Insurance Corporation has been appointed receiver, or against the Federal Deposit Insurance Corporation as receiver of such association, shall be brought in the district or territorial court of the United States held within the district in which that association’s principal place of business is located, or, in the event any State, county, or municipal court has jurisdiction over such an action or proceeding, in such court in the county or city in which that association’s principal place of business is located.” (Garn-St. Germain Depository Institutions Act of 1982, Pub. L. No. 97—320, sec. 406, 96 Stat. 1469, 1512, 12 U.S.C.A. sec. 94 (West Supp. 1983).)

The language of this amendment, as well as its legislative history (S. Rep. No. 536, 97th Cong., 2d Sess. 28, reprinted in 1982 U.S. Code Cong. & Ad. News 3054, 3082) indicate that Congress intended to repeal the special venue provision that had previously existed for national banks. Under the new section 94, defendant would not have the venue privilege it asserts here. Thus, our initial inquiry is whether the new or the old section 94 applies to this case.

The general rule in Illinois is that statutory changes that relate only to procedural or remedial provisions apply immediately to pending cases in the absence of a savings clause. (Maiter v. Chicago Board of Education (1980), 82 Ill. 2d 373, 390, 415 N.E.2d 1034; Songer v. State Farm Fire & Casualty Co. (1980), 91 Ill. App. 3d 248, 254, 414 N.E.2d 768.) Here, a Federal statute is involved and we note that the Federal rule on the retroactivity of procedural statutes is the same as the Illinois rule. (Denver & Rio Grande Western R.R. Co. v. Brotherhood of R.R. Trainmen (1967), 387 U.S. 556, 563, 18 L. Ed. 2d 954, 960, 87 S. Ct. 1746, 1750; United States v. Vanella (5th Cir. 1980), 619 F.2d 384, 386.) No savings clause is contained in the new section 94.

Venue statutes have been held to be procedural by both Federal and Illinois courts (Denver & Rio Grande Western R.R. Co. v. Brotherhood of R.R. Trainmen (1967), 387 U.S. 556, 563, 18 L. Ed. 2d 954, 960, 87 S. Ct. 1746, 1750; Baltimore & Ohio R.R. Co. v. Mosele (1977), 67 Ill. 2d 321, 328, 368 N.E.2d 88), and the United States Supreme Court has expressly held that an amendment to subsection (a) of the general Federal venue statute (28 U.S.C. sec. 1391(a) (1976)) is to be applied retroactively. (Denver & Rio Grande Western R.R. Co. v. Brotherhood of R.R. Trainmen (1967), 387 U.S. 556, 563, 18 L. Ed. 2d 954, 960, 87 S. Ct. 1746, 1750.) Thus, we hold that the new section 94 is applicable to cases pending at the time of its enactment.

We deem Vaughan v. Empresas Hondurenas, S.A. (5th Cir. 1948), 171 F.2d 46, which is relied on by defendant and which held a Federal venue statute not to have a retroactive application, to be inconsistent with the United State’s Supreme Court’s subsequent decision in Denver & Rio Grande Western R.R. Co. v. Brotherhood of R.R.

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452 N.E.2d 382, 116 Ill. App. 3d 690, 72 Ill. Dec. 257, 1983 Ill. App. LEXIS 2091, Counsel Stack Legal Research, https://law.counselstack.com/opinion/board-of-managers-of-dominion-plaza-one-condominium-assn-no-1-a-v-chase-illappct-1983.