Background
Bank of America sued Calvin Carter to recover $7,599.65 allegedly due on a credit-card account. The bank alleged that the account was opened in February 2016, received its last payment in February 2022, and closed in October 2022 with the claimed balance unpaid. Carter filed identity-theft affidavits under Illinois Supreme Court Rule 280.5, but his filings focused on events and communications occurring after the account had been opened, used, and closed.
The circuit court struck Carter’s Rule 280.5 affidavit, denied his later motion for substitution of judge, and conducted a bench trial. Relying on an account-stated theory, the court entered judgment for the bank for $7,599.65 plus $458.21 in costs. On appeal, Carter also challenged the certified bystander’s report and sought to replace it with his own uncertified version.
The Court’s Holding
The appellate court denied Carter’s motion to supplement the record and affirmed the judgment. It held that the trial court did not abuse its discretion by certifying the bank’s proposed bystander’s report after considering both parties’ submissions. Although the report omitted the hearing on the motion to strike, the common-law record contained enough material to review that legal issue; any uncertainty about other unrecorded proceedings was resolved against Carter as the appellant.
The court explained that the bank’s motion to strike was not the sworn rebuttal affidavit contemplated by Rule 280.5. Nevertheless, striking Carter’s affidavit was not reversible error because the affidavit did not allege identity theft concerning the $7,599.65 debt being collected. It left blank the portions identifying the creditor, disputed account number, and disputed amount, and addressed alleged misconduct occurring only after the account’s use and closure.
The court also upheld the denial of substitution because Carter sought it after the trial judge had made a substantive ruling, defeating substitution as of right. Finally, the bank proved an account stated through evidence that it sent periodic statements reflecting the balance, Carter did not dispute those statements while the account was active, and Carter admitted opening the account.
Key Takeaways
- A Rule 280.5 identity-theft affidavit must dispute the debt actually at issue; allegations concerning later collection-related activity are insufficient.
- A creditor’s motion to strike is not a substitute for the sworn rebuttal affidavit contemplated by Rule 280.5, although that defect did not require reversal here.
- An appellant cannot displace a certified bystander’s report with a conflicting, uncertified report rejected by the trial court.
- A substitution request filed after a substantive ruling does not qualify for substitution as of right.
Why It Matters
The order shows that Illinois courts will examine whether a Rule 280.5 filing genuinely attributes the underlying debt to identity theft, rather than merely invoking identity theft in connection with later collection conduct. Creditors should still follow the rule’s affidavit procedure because an ordinary motion to strike does not itself satisfy the rule’s sworn-response requirement.
The decision also underscores the importance of preserving an adequate appellate record and promptly objecting to account statements. The order was issued under Illinois Supreme Court Rule 23 and is nonprecedential except in the limited circumstances permitted by Rule 23(e)(1).