author: JUSTICE MAAG JUSTICE RARICK,

text:
    HOMER E. EIDSON et al., Plaintiffs, v. AUDREY’S C T L, INC., d/b/a Audrey’s Clifton Terrace Lounge, et al., Defendants (George Daiker, Counterplaintiff-Appellant; Homer E. Eidson, Counterdefendant-Appellee).
    Fifth District
    No. 5-92-0176
    Opinion filed September 15, 1993.
    — Rehearing denied October 28, 1993.

      RARICK, J., dissenting.
    Gail R. Gisy and Eric S. Pistorius, both of Jerseyville, for appellant.
    Gundlach, Lee, Eggmann, Boyle & Roessler, of Belleville (Timothy S. Richards and Karen E. Mason, of counsel), for appellee.
   JUSTICE MAAG

delivered the opinion of the court:

Oa December 21, 1986, the plaintiff, Homer E. Eidson, and one of the defendants, George Daiker, were together in a 1983 Plymouth Voyager van owned by Homer. The van left the roadway and hit a telephone pole in Jersey County, Illinois. Both Homer and George were injured in the collision with the pole, and both claim that the other was driving at the time of the collision.

On December 21, 1987, Homer filed a complaint pursuant to the Dramshop Act (Ill. Rev. Stat. 1985, ch. 43, par. 135) against Audrey’s CTL, Inc., d/b/a Audrey’s Clifton Terrace Lounge; Audrey.Fillback; Dennis M. Rouder; Fred Widman; Paul Schneider, d/b/a The Rubel Lounge; and Bob Singer, d/b/a Singer’s Tavern. On July 20, 1988, Homer filed an amended complaint adding George as a defendant.

On November 16, 1988, George filed an answer to Homer’s amended complaint and also filed a two-count counterclaim against Homer. In his verified answer, George denies that he.was driving the van. Count I of George’s counterclaim alleges that Homer was the driver of the van and alleges that it was Homer’s negligence in operating the van which caused the collision. Count II in the alternative alleges that George was the driver and Homer was negligent in allowing George to operate the van after purchasing alcohol for George and knowing that George was intoxicated and his driving ability was impaired.

Eventually Homer’s claims and the dramshop claims all settled, leaving only George’s two-count counterclaim pending. On August 31, 1990, George and Homer both gave discovery depositions.

In his deposition, George testified in part as follows:

“Q. But you were drunk, too?
A. Yes.
Q. You didn’t drive this car?
A. No.
Q. Because you testified earlier you never, you’d only driven twice before—
A. Yes.
Q. —because you don’t have a driver’s license—
A. Right.
Q. —because you were 17 years old?
A. Yes.
Q. You were 17 years old. Okay. What happened next?
A. That’s all I remember until—
Q. You fall asleep in the car—
A. Yes.
Q. —or you just don’t remember?
A. I fell asleep, and I woke up 3 days later in the hospital, on a Tuesday.
Q. No recollection of the accident, whatsoever?
A. No.”

On October 18, 1991, Homer filed a motion for partial summary judgment as to count II of George’s counterclaim, alleging that George in his pleadings and discovery deposition had made admissions that he was not driving the van at the time of the collision and, therefore, could not allege in count II that he was operating the van. After argument the trial court granted Homer’s motion and dismissed count II of George’s counterclaim. The trial court found that there was no just cause for delaying enforcement or appeal. The instant appeal ensued.

The sole issue raised on appeal is whether the trial court erred in granting Homer’s motion for partial summary judgment dismissing count II of George’s counterclaim. We answer in the affirmative.

Since the collision, both parties have alleged that the other was driving the van at the time of the collision. Homer argues that George’s deliberate and unequivocal deposition testimony and his verified answer that he was not driving the van at the time of the collision are judicial admissions.

A judicial admission is a deliberate, clear, unequivocal statement of a party, about a concrete fact, within the party’s peculiar knowledge. (Brummet v. Farel (1991), 217 Ill. App. 3d 264, 266, 576 N.E.2d 1232, 1234.) The frequently stated purpose of the doctrine of judicial admissions is to eliminate the temptation to commit perjury. (Smith v. Ashley (1975), 29 Ill. App. 3d 932, 935, 332 N.E.2d 32, 34.) A judicial admission may occur at a discovery deposition (Van’s Material Co. v. Department of Revenue (1989), 131 Ill. 2d 196, 211, 545 N.E.2d 695, 703), and the party making the admission is bound by that admission and cannot.contradict it. (Caponi v. Larry’s 66 (1992), 236 Ill. App. 3d 660, 667, 601 N.E.2d 1347, 1355.) It is also well accepted that a judicial admission will support a grant of summary judgment. Commonwealth Eastern Mortgage Co. v. Williams (1987), 163 Ill. App. 3d 103, 108-09, 516 N.E.2d 515, 518.

For testimony to be binding, it must also be peculiarly within the knowledge of the deponent. (Hansen v. Ruby Construction Co. (1987), 155 Ill. App. 3d 475, 482, 508 N.E.2d 301, 305.) Homer cites a number of cases in support of his argument that the word “peculiar” within the context of judicial admissions does not require the fact in question to lie exclusively • with the party against whom the judicial admission is charged. A reading of the cases cited reveals that “peculiar” did in those cases mean “exclusively.” See Schmahl v. A.V.C. Enterprises, Inc. (1986), 148 Ill. App. 3d 324, 331, 499 N.E.2d 572, 577 (only the deponent knew his financial situation); Tennes v. Tennes (1943), 320 Ill. App. 19, 33, 50 N.E.2d 132, 139 (only the deponent knew if he fell asleep at the wheel); Hansen, 155 Ill. App. 3d at 482, 508 N.E.2d at 305 (only plaintiff knew if he tripped over a rubber bumper or a loading dock because there were no eyewitnesses to the accident).

Nevertheless, we must agree with Homer that the word “peculiar” in the context of judicial admissions does, not necessarily mean “exclusively.” If both George and Homer agreed that George was driving, and George clearly and unequivocally so testified, this testimony by George could constitute a judicial admission. We believe that the proper construction of the term “peculiar” when referring to judicial admissions is that the information must be without question within the realm of information actually known to the witness although not exclusively known to him. In other words, the witness must be in a position to know the fact about which he "is testifying. Simply because others may also be in a position to know does not prevent the admission from rising to the level of a “judicial admission.”

However, this does not conclude our analysis, because George’s deposition testimony is hardly unequivocal. When read in context, it is clear that George was testifying about his intention regarding who was going to drive. However, he states that at the time of the accident he was asleep and had no recollection of the accident. He, therefore, could not unequivocally and clearly state who was driving when the accident took place if he was asleep and had no memory of the event itself. For this reason the deposition evidence cannot constitute a judicial admission.

A motion for summary judgment is proper if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. (735 ILCS 5/2 — 1005(c) (West 1992).) As we have determined that George’s statements in his testimony and pleadings are not judicial admissions, Homer is not entitled to judgment as a matter of law with respect to count II.

There is no dispute that George’s allegations as contained in counts I and II of his counterclaim are logically inconsistent fact patterns. The Illinois Code of Civil Procedure addresses the issue of logically inconsistent fact patterns and provides:

“When a party is in doubt as to which of two or more statements of fact is true, he or she may, regardless of consistency, state them in the alternative or hypothetically in the same or different counts or defenses. A bad alternative does not affect a good one.” 735 ILCS 5/2 — 613(b) (West 1992).

For the foregoing reasons, the trial court’s grant of partial summary judgment and dismissal of count II of the amended complaint is reversed and remanded.

Reversed and remanded.

GOLDENHERSH, J., concurs.

JUSTICE RARICK,

dissenting:

I respectfully dissent. The majority concludes that George Daiker’s deposition testimony cannot constitute a judicial admission because such testimony was hardly unequivocal. The majority reasons that because Daiker stated that he was asleep at the time of the accident and had no recollection thereof, he could not unequivocally and clearly state who was driving. I do not agree with this reasoning. In his deposition testimony, Daiker clearly and unequivocally states that he was not driving. When asked what happened next, Daiker said he did not remember because he fell asleep in the car and woke up three days later in the hospital. The majority’s conclusion that Daiker cannot unequivocally state that he was not driving because he was asleep makes sense only if we accept the possibility that, while asleep, Daiker took control of the car. That possibility I cannot accept. I believe that Daiker’s deposition testimony constitutes a judicial admission that he was not driving and would affirm the trial court’s grant of summary judgment with respect to count II.


source: Caselaw Access Project

author: JUSTICE WELCH

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ONE RESIDENCE LOCATED AT 1403 EAST PARHAM STREET, Defendant-Appellee.
    Fifth District
    No. 5—92—0056
    Opinion filed October 6, 1993.
    Charles Garnati, State’s Attorney, of Marion (Norbert J. Goetten, Stephen E. Norris, and Mary H. Doyle, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Therese H. Thien, of Robert A. Drew & Associates, of Marion, for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

On February 7, 1991, a complaint was filed in the circuit court of Williamson County pursuant to the authority of section 505 of the Illinois Controlled Substances Act. (Ill. Rev. Stat. 1991, ch. 56V2, par. 1505.) That section provides for the forfeiture to the State of, inter alia,

“all real property, including any right, title, and interest (including, but not limited to, any leasehold interest or the beneficial interest in a land trust) in the whole of any lot or tract of land and any appurtenances or improvements, which is used or intended to be used, in any manner or part, to commit, or in any manner to facilitate the commission of, any violation or act that constitutes a violation of Section 401 or 405 of this [Controlled Substances] Act or that is the proceeds of any violation or act that constitutes a violation of Section 401 or 405 of this [Controlled Substances] Act.” (Ill. Rev. Stat. 1991, ch. SG1^, par. 1505(a)(6).)

The complaint for forfeiture was filed by the State’s Attorney of Williamson County against the residence of JoEllen and Scott Brozowski alleging that the Brozowskis had used the residence for the unlawful delivery of controlled substances. The complaint prays that an order be entered by the circuit court of Williamson County forfeiting the residence to the State.

On May 10, 1991, the Brozowskis answered the complaint for forfeiture, asserting, inter alia, that the residence is their homestead and thus subject to the homestead exemption provided in section 12— 901 of the Code of Civil Procedure. (Ill. Rev. Stat. 1991, ch. 110, par. 12 — 901.) That section provides:

“Every individual is entitled to an estate of homestead to the extent in value of $7,500, in the farm or lot of land and buildings thereon, a condominium or in personal property, owned or rightly possessed by lease or otherwise and occupied by him or her as a residence, or in a cooperative that owns property that the individual uses as a residence; and such homestead, and all right and title therein, is exempt from attachment, judgment, levy or judgment sale for the payment of his or her debts or other purposes and from the laws of conveyance, descent and legacy, except as hereinafter provided ***.” Ill. Rev. Stat. 1991, ch. 110, par. 12-901.

Following hearing on the complaint, held July 30, 1991, the court found that the Brozowskis had, in fact, used their residence to unlawfully deliver controlled substances and that the home was, therefore, subject to forfeiture under section 505 of the Controlled Substances Act. (Ill. Rev. Stat. 1991, ch. 56V2, par. 1505.) The parties do not dispute this finding. The court asked counsel to submit written memoranda on the question of whether the homestead exemption was applicable to such a forfeiture.

After receiving the written memoranda of the parties, the court issued a memorandum of decision in which it held that the homestead exemption does apply in the case of a forfeiture of real estate pursuant to section 505 of the Controlled Substances Act. The court reasoned that the homestead exemption is old and revered and not easily divested or lost. Only clear and explicit statutory language can result in the loss of this homestead right. Because neither the Controlled Substances Act nor the Drug Asset Forfeiture Procedure Act (Ill. Rev. Stat. 1991, ch. 56x/2, par. 1671 et seq.), which sets forth the procedures to be followed in a forfeiture action under the Controlled Substances Act, explicitly provides for the forfeiture or extinguishment of this homestead right, the homestead exemption applies and any forfeiture is subject thereto. The final order of forfeiture subject to the homestead exemption was entered January 3, 1992. The State brings this appeal from the finding of the applicability of the homestead exemption.

The issue before us is a limited one: whether the homestead exemption provided by section 12 — 901 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 12 — 901) applies to real property forfeited to the State pursuant to the Controlled Substances Act (Ill. Rev. Stat. 1991, ch. 56x/2, par. 1505(aX6)) and the Drug Asset Forfeiture Procedure Act (Ill. Rev. Stat. 1991, ch. 56x/2, par. 1671 et seq.). The trial court held that it does, and we agree. The question is one of statutory construction, a question of law, and we may construe the statute independently of the trial court’s judgment. Village of South Elgin v. City of Elgin (1990), 203 Ill. App. 3d 364, 367, 561 N.E.2d 295, 297.

The fundamental rule of statutory construction, of course, is to give effect to the intent of the legislature. (State v. Mikusch (1990), 138 Ill. 2d 242, 247, 562 N.E.2d 168, 170.) We note, as did the trial court, that neither the Controlled Substances Act nor the Drug Asset Forfeiture Procedure Act (hereinafter Forfeiture Procedure Act) mentions the homestead exemption in any respect. Section 8 of the Forfeiture Procedure Act does set forth certain exemptions from forfeiture. (Ill. Rev. Stat. 1991, ch. 56x/2, par. 1678.) However, each of these exemptions is intended exclusively to protect the interests of an innocent owner of property which is otherwise subject to forfeiture. The section does not address exemptions available to the individual who has knowingly violated the Controlled Substances Act thus resulting in the forfeiture action. Thus, we find unconvincing the State’s argument that, by failing to include homestead as an exemption in this section, the legislature intended to exclude homestead as an exemption. While ordinarily the enumeration of certain exceptions in a statute will be construed as an exclusion of all others (State v. Mikusch (1990), 138 Ill. 2d 242, 250, 562 N.E.2d 168, 171), this is not a rule of law which is absolutely required to be applied in all cases. (Dixon v. O’Connor (1981), 94 Ill. App. 3d 656, 658, 419 N.E.2d 83, 85.) The homestead exemption is of a different nature than the exemptions addressed in section 8. It is not an additional exemption under the Forfeiture Procedure Act. The failure to include the homestead exemption in section 8 is not, therefore, reflective of legislative intent to exclude its application to forfeiture of real property under the Controlled Substances Act. We conclude, therefore, that both the Controlled Substances Act and the Forfeiture Procedure Act are silent as to the applicability of the homestead exemption to the forfeiture of real property thereunder.

In seeking to ascertain legislative intent, courts consider the statutes in their entirety, noting the subject they address and the legislature’s apparent objective in enacting them. State v. Mikusch (1990), 138 Ill. 2d 242, 247, 562 N.E.2d 168, 170.

The principal object to be effectuated by the creation of the homestead estate is to protect the homesteader in the enjoyment of a home and to secure to him a shelter beyond the reach of his improvidence or financial misfortune. (Holterman v. Poynter (1935), 361 Ill. 617, 625-26, 198 N.E. 723, 727.) Statutes relating to the homestead exemption have been construed liberally by our courts. (Bank of Illmo v. Simmons (1986), 142 Ill. App. 3d 741, 744, 492 N.E.2d 207, 211.) As the trial court found, the homestead estate is not easily lost or divested. A judgment debtor need not perform any act or manifest any intention in order to avail himself of his homestead exemption. (Holterman, 361 Ill. at 622, 198 N.E. at 725.) Even the fraudulent acts of the party entitled to a homestead are not allowed to divest that right. (Holterman, 361 Ill. at 625, 198 N.E. at 726.) Neither fraud nor the commission of a criminal offense can work a release or forfeiture of the right of homestead; such release or forfeiture can only be accomplished in the manner provided by the statute. Holterman, 361 Ill. at 625, 198 N.E. at 726.

The homestead exemption continues even after an individual’s death, for the benefit of the surviving spouse and/or children (Ill. Rev. Stat. 1991, ch. 110, par. 12 — 902) and can be released, waived, or conveyed only in writing. However,

“[i]n order that a deed shall pass the homestead right of the grantors it must contain a special release of that right. Where the homestead is not specifically named as conveyed, no general language in the deed, though it comprehend every claim, interest and estate, of whatever description, at law or in equity, in express terms, will pass the right or estop the householder from asserting it as against anyone claiming under the deed.” (Holterman, 361 Ill. at 627, 198 N.E. at 727.)

The homestead exemption can also be lost by abandonment of possession of the homestead property. (Ill. Rev. Stat. 1991, ch. 110, par. 12 — 904.) The doctrines of estoppel and laches do not effect release of homestead. Dixon v. Moller (1976), 42 Ill. App. 3d 688, 692, 356 N.E.2d 599, 604.

In In re Estate of Millhouse (1978), 60 Ill. App. 3d 549, 377 N.E.2d 382, it was held that an individual’s homestead exemption survived her death for the benefit of her surviving spouse even though prior to her death she had embezzled over $1 million from her employer and her estate was insolvent. Her surviving husband was awarded homestead upon the sale of the realty to pay debts. The court held that neither fraud nor the commission of a criminal offense can work a release or forfeiture of the right of homestead as such release or forfeiture can only be accomplished in the manner provided by the statute.

Thus, it appears that, while one may voluntarily relinquish or convey one’s homestead estate, that estate cannot be involuntarily taken away or divested for any purpose. Even the commission of a criminal act will not result in the loss of the homestead estate. Nor can the homestead estate be casually conveyed or waived voluntarily. Any conveyance of the estate must be made explicitly, specifically, and in writing.

The Drug Asset Forfeiture Procedure Act provides procedures to be followed in effecting the forfeiture of property for violation of the Controlled Substances Act. The legislative declaration of purpose of the Forfeiture Procedure Act states:

“The General Assembly finds that the civil forfeiture of property *** will have a significant beneficial effect in deterring the rising incidence of the abuse and trafficking of [controlled] substances within this State.” (Ill. Rev. Stat. 1989, ch. 561/s, par. 1672.)

The object of the forfeiture provisions of the Controlled Substances Act and the Forfeiture Procedure Act are, therefore, to deter individuals from trafficking in controlled substances by imposing a civil penalty in addition to the criminal penalties already provided.

It is presumed that the legislature, in enacting various statutes, acts rationally and with full knowledge of all previous enactments and, further, that the legislature will not enact a law which completely contradicts a prior statute without an express repeal of it. (State v. Mikusch (1990), 138 Ill. 2d 242, 247-48, 562 N.E.2d 168, 170.) For a later enactment to operate as a repeal by implication of the earlier one, there must be such manifest and total repugnance that the two cannot stand together. (Mikusch, 138 Ill. 2d at 248, 562 N.E.2d at 170.) A construction, if possible, of the two statutes which allows both to stand will be favored. Mikusch, 138 Ill. 2d at 248, 562 N.E.2d at 170.

In the instant case we find no irreconcilable conflict between the statutes pertaining to the homestead exemption and those pertaining to the forfeiture of real property for violation of the Controlled Substances Act. To the contrary, we find that, by giving effect to both statutes, the two statutes can be harmonized and the purposes and objects of both achieved. We hold, therefore, that the homestead exemption does apply to the forfeiture of real'property pursuant to section 505 of the Controlled Substances Act and the Forfeiture Procedure Act.

Examination of the language of the homestead exemption provision itself, as well as examination of the case law arising from that provision, supports our construction of the two statutory schemes. We see no indication in the language of the homestead exemption statute itself to indicate that it was not intended to apply to all involuntary takings of real property. Section 12 — 901 of the Code of Civil Procedure provides that the homestead estate is “exempt from attachment, judgment, levy or judgment sale for the payment of his or her debts or other purposes and from the laws of conveyance, descent and legacy.” (Emphasis added.) (Ill. Rev. Stat. 1991, ch. 110, par. 12 — 901.) By its own terms the homestead exemption is not limited only to the talcing of property in payment of debts. Instead, it applies to the involuntary taking of real property for any purpose. The instant forfeiture judgment results in the involuntary taking of the real property of the homesteaders, JoEUen and Scott Brozowski, and they are entitled to their homestead exemption.

Examination of relevant case law supports this view. As we have already discussed, even criminal acts cannot divest one of the homestead estate. (Estate of Millhouse, 60 Ill. App. 3d at 552, 377 N.E.2d at 385.) Nor is there any reason to believe that one whose property is forfeited pursuant to the Controlled Substances Act is not in need of shelter or the means to acquire shelter as much as one whose property is taken in payment of debts. As we have stated, the purpose of the homestead exemption is to secure to the homesteader a shelter beyond the reach of his improvidence. Holterman v. Poynter (1935), 361 Ill. 617, 625-26, 198 N.E. 723, 725.

Our conclusion that the homestead exemption applies to real property forfeited pursuant to the Controlled Substances Act and the Forfeiture Procedure Act does no violence to the purpose of those forfeiture statutes, as the State argues. The State argues that application of the homestead exemption to drug forfeitures would defeat the purpose of deterring the trafficking in controlled substances because drug dealers could avoid the impact of the drug forfeiture laws by selling drugs from real estate whose market value does not exceed the homestead exemption. However, in order to qualify for the homestead exemption, the real property must be occupied by the drug dealer as his or her residence. If a drug dealer chooses to reside in, as well as sell drugs from, a residence valued at less than $7,500, the State is correct that the property would not be subject to forfeiture under our construction of the statutes. However, we do not believe that this will defeat the deterrent purpose of the forfeiture statutes, and we do not see this as a serious argument against our construction of the statutes.

The State also argues that the language of section 505(aX6) of the Controlled Substances Act (Ill. Rev. Stat. 1991, ch. 56x/2, par. 1505(aX6)) clearly states that “all real property, including any right, title, and interest” therein, is subject to forfeiture and that this language is surely intended to include the homestead estate. We cannot agree. The State’s proposed construction of the two statutory schemes would result in a direct conflict between the two statutes and would, in effect, abrogate the homestead exemption statute, denying it effect in the case of a drug forfeiture. This we cannot accept in the absence of a clear expression in the forfeiture statutes that this is the legislative intent.

The homestead exemption is to be liberally construed to effect its remedial purpose. (Bank of Illmo v. Simmons (1986), 142 Ill. App. 3d 741, 744, 492 N.E.2d 207, 211.) By its own terms it applies to the involuntary taking of real property for any purpose. Furthermore, it has been held that the estate cannot be divested even by the commission of criminal acts. (In re Estate of Millhouse (1978), 60 Ill. App. 3d 549, 552, 377 N.E.2d 382, 385.) Where even a deed must contain specific and explicit language to convey the homestead estate (Holterman v. Poynter (1935), 361 Ill. 617, 627, 198 N.E. 723, 727), we cannot conclude that the legislature intended to deny the homestead exemption in the case of a drug forfeiture without clear and explicit language in the forfeiture statute to that effect.

Finally, our construction of the statutes is consistent with that principle of statutory construction that we must construe statutes which are in apparent conflict so as to give effect to both. (Welch v. Stocks (1987), 152 Ill. App. 3d 1, 5, 503 N.E.2d 1079, 1081-82.) Our construction of the statutes eliminates the perceived conflict between the homestead exemption and the forfeiture statutes and gives effect to the legislative intent and purposes expressed in both statutes. When two legislative schemes do not seem completely compatible, they should be interpreted so that meaning and effect is given to each statute. (Stephens v. Cozadd (1987), 159 Ill. App. 3d 452, 456, 512 N.E.2d 812, 814.) This we have done.

Finally, the State argues that the later enactment, the forfeiture provisions, control over the earlier enactment, the homestead exemption. We note, however, that this rule of construction applies only where the two statutes are irreconcilable. (People v. Williams (1989), 191 Ill. App. 3d 119, 120, 547 N.E.2d 668, 669.) We have already found that these two statutes are not irreconcilable.

For the foregoing reasons, we affirm the judgment of the circuit court of Williamson County holding that the homestead exemption of section 12 — 901 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 12 — 901) does apply to the forfeiture of real property under section 505(a)(6) of the Controlled Substances Act.

Affirmed.

CHAPMAN, P.J., and LEWIS, J., concur.


author: JUSTICE MAAG

text:
    FARM CREDIT BANK OF ST. LOUIS, Plaintiff-Appellee, v. HERSCHEL L. SCHWARM, Defendant-Appellant (Amber J. Schwarm et al., Defendants).
    Fifth District
    No. 5—93—0054
    Opinion filed October 18, 1993.

      Herschel L. Schwarm, of Loogootee, appellant pro se.

    William W. Austin and William B. Totten, both of Parker, Siemer, Austin & Resch, of Effingham, for appellee.
   JUSTICE MAAG

delivered the opinion of the court:

Herschel L. Schwarm appeals from a judgment evicting him from his farm and granting possession of it to the Farm Credit Bank of St. Louis and from an order denying his motion to modify the judgment and motion to vacate the judgment. Schwarm asserts (1) that he was denied due process by the trial court when the bank’s motion for judgment was heard on insufficient notice; (2) that the plaintiff lacked authority to use the courts of Illinois because it did not present proof that it qualified under State law to transact business and sue in State court; (3) that the trial court committed certain procedural errors in entering the foreclosure judgment against him; and (4) that the application of the Illinois Mortgage Foreclosure Law effective July 1, 1987, to the foreclosure of his mortgage, which predated the enactment, unconstitutionally impaired his rights of redemption. (See 735 ILCS 5/ 15 — 1101 et seq.) We disagree.

On February 8, 1983, Herschel and Amber Schwarm executed a $43,000 promissory note with interest payable at 12% to the Federal Land Bank of St. Louis and a real estate mortgage securing the note. Federal Land Bank of St. Louis was succeeded in interest by Farm Credit Bank of St. Louis (FCB). (See section 401(a) of the Agricultural Credit Act of 1987, Pub. L. 100 — 233, codified at 12 U.S.C.A. §2011 et seq. (West 1989).) In 1987, following a failure to make timely payments, the Schwarms reamortized the loan at a reduced rate of 10.5%. The new term ran from December 1, 1988, through November 30, 1991, and extended the maturity date of the loan. As a result, the original mortgage foreclosure action was voluntarily dismissed.

The Schwarms again defaulted, and on April 22, 1992, FCB sued the Schwarms in the circuit court of Fayette County to foreclose the mortgage.

On September 28, 1992, FCB and the Schwarms entered into an agreement granting the Schwarms additional forbearance from foreclosure for a period of 60 days. This agreement included a provision that in exchange for the FCB’s forbearance, the Schwarms, inter alia, waived any and all defenses, offsets, or counterclaims to the FCB’s foreclosure or enforcement of the loan documents.

The Schwarms failed to fulfill the terms of the agreement, and on December 23, 1992, the Bank moved for a judgment of foreclosure and gave notice to the defendants that a hearing would be conducted on the motion for judgment on “December 31,1993 [sic].”

On December 29, 1992, Herschel Schwarm (defendant) filed a pleading entitled an “answer in abatement.” It asserted that the trial court of Fayette County lacked subject matter jurisdiction, that the plaintiff was not entitled to maintain the action in a State court, and that the plaintiff was a nul tiel corporation and thus lacked the capacity to bring the action in State court.

On December 31, 1992, the bank filed an affidavit in support of its motion for judgment. This affidavit incorporated a statement of indebtedness and the agreement of September 28, 1992. The note and mortgage were also entered into evidence at the hearing.

The court heard argument on the defendant’s answer in abatement and ordered it stricken. At the same time, the court granted the bank’s motion for judgment and entered a judgment of foreclosure.

On January 13, 1993, the defendant filed a motion to vacate the court’s December 31, 1992, judgment of foreclosure. He also filed a motion to modify the judgment of foreclosure. These motions were heard and denied on January 21,1993. Herschel Schwarm appeals.

Initially, we note that the defendant has failed to provide a complete record on appeal. No transcripts of the December 31, 1992, and January 21, 1993, hearings have been provided despite the fact that a court reporter attended. It is the duty of the appellant to present a complete record to the reviewing court, so that the court may be fully informed about the issues that it must resolve. In the absence of such a record, it is presumed that the circuit court acted properly and that the evidence supported its rulings. (Kim v. Evanston Hospital (1992), 240 Ill. App. 3d 881, 888, 608 N.E.2d 371, 375.) Any doubts arising from an incomplete record on appeal must be resolved against the appellant. People v. Woidtke (1992), 224 Ill. App. 3d 791, 806, 587 N.E.2d 1101, 1112.

Defendant asserts that he was denied due process because the notice of the December 31, 1992, hearing on the bank’s motion for judgment erroneously stated that the hearing would be held December 31, 1993. He does not assert that he was in any way prejudiced by this scrivener’s error but merely maintains that the notice was “not adequate to declare Judgment [sic] by default on December 31, 1992.”

The complaint for foreclosure of the defendant’s mortgage was filed April 22, 1992, with personal service on the Schwarms on April 24, 1992. Neither the defendant nor his wife answered the complaint or otherwise appeared within 30 days after service as required by Supreme Court Rule 181(a). (134 Ill. 2d R. 181(a).) At the time defendant filed his answer in abatement, he had been in default for eight months. Mrs. Schwarm has never entered an appearance in this cause. The plaintiff did notify the Schwarms that it intended to seek a default judgment and informed them of the place and time that hearing would take place. Defendant appeared in court at the proper time and place, as shown by the docket sheet in the common law record despite the incorrect date on his notice.

The notice which defendant received was sufficiently full and clear. (Owens v. Second Baptist Church (1987), 163 Ill. App. 3d 442, 447, 516 N.E.2d 712, 715.) The record demonstrates that not only did defendant receive notice, albeit with a typographical error, he filed a motion in response to it. (See Owens, 163 Ill. App. 3d at 447, 516 N.E.2d at 716.) The record is devoid of any indication that the defendant either objected to the form of the notice or suffered any prejudice as a result of the technical defect in it. His arguments regarding this issue are without merit.

Defendant argues that the bank lacked authority to bring a cause of action in the circuit court of Fayette County. He states that the court erred because it did not require the bank to produce evidence of its legal capacity to sue in response to the defendant’s claim that the bank was a nul tiel corporation. We disagree.

Farm credit banks are federally chartered instrumentalities of the United States. (12 U.S.C.A. §2011 (West 1989).) Each farm credit bank is a “body corporate” and has the power to both sue and be sued. (12 U.S.C.A. §2013(4) (West 1989).) The Farm Credit System includes the Farm Credit Banks, the Federal Land Banks Associations, the Production Credit Associations, the Banks for Cooperatives, and such other institutions as may be made a part of this system, all of which are chartered by and subject to regulation by the Farm Credit Administration. (12 U.S.C.A. §2002(a) (West 1989).) The Farm Credit System is divided into Farm Credit Districts, designated by number. (12 U.S.C.A. §2002(b) (West 1989).) The States of Illinois and Missouri are in the seventh district of the Farm Credit System. Farm Credit Bank of St. Louis is located in Missouri, and the association bank through which the loan was originally negotiated was the Federal Land Bank Association of Southeastern Illinois. Each Federal Land Bank Association is also a “body corporate,” subject to the supervision of the Farm Credit Bank for the district. It is subject to the regulation of the Farm Credit Administration and has the power to sue and be sued. 12 U.S.C.A. §2093(4).

The North Dakota Supreme Court addressed the argument that farm credit banks are not authorized to sue in State court if they lack a certificate of authority to transact business in the State. It found that Federal Land Banks are federally chartered corporations and as such are not foreign corporations but have a legal existence in every State in which they may transact business pursuant to the authority conferred on them by Congress. (Farm Credit Bank v. Rub (N.D. 1992), 481 N.W.2d 451, 457.) This is but the most recent in a line of cases which reached a similar conclusion. (See Federal Land Bank v. Felt (S.D. 1985), 368 N.W.2d 592, 595 (and cases cited therein); Federal Land Bank v. Gefroh (N.D. 1986), 390 N.W.2d 46, 47.) We conclude that Farm Credit Bank is a federally chartered corporation and, as such, is not a foreign corporation under Illinois law. Therefore, it need not obtain a certificate of authority from the State to transact business or sue in Illinois.

Defendant’s assertion that the trial court improperly struck his answer in abatement is without merit not only because of the foregoing discussion but because it was an unverified document. The bank’s complaint for foreclosure was a verified complaint. Therefore, every subsequent pleading in that cause of action must also be verified. (735 ILCS 5/2 — 605 (West 1992).) If a complaint is verified, an unverified answer must be disregarded. Therefore, filing an unverified answer has the same effect as if no answer had been filed at all. (Charter Bank v. Eckert (1992), 223 Ill. App. 3d 918, 924, 585 N.E.2d 1304, 1309.) Defendant’s answer in abatement was unverified and untimely. It was therefore appropriate that the trial court strike defendant’s answer in abatement.

Defendant also argues that the trial court improperly granted the plaintiff’s motion for judgment because the affidavit in support of the motion was not filed until the day of the hearing. He claims this deprived him of the chance to “check it for accuracy” prior to entry of the judgment. He does not, however, suggest how he was harmed by this action, nor does he claim the affidavit was inaccurate. He has cited no authority to demonstrate any error by the trial court in this regard. The claim is without merit. Additionally, the claim is waived due to defendant’s failure to cite authority to support his argument as required by Supreme Court Rule 341(e)(7) (134 Ill. 2d R. 341(e)(7)). Holmstrom v. Kunis (1991), 221 Ill. App. 3d 317, 325, 581 N.E.2d 877, 882.

Defendant also argues that after the court struck his answer in abatement, it improperly granted the bank’s request for a default judgment without allowing defendant to answer or otherwise plead. (See 735 ILCS 5/2 — 1301(b) (West 1992).) We disagree with defendant’s position. Section 2 — 1301(b) of the Code of Civil Procedure contemplates that any defense in abatement be filed in a timely fashion. An adverse determination on a defense would not preclude a defendant who has timely raised a defense in abatement from being allowed to answer or otherwise plead. Defendant in the case at bar failed to file an answer within 30 days of service of the complaint and summons. In fact, he did not file his answer in abatement until he had been in default for eight months.

A court may, in its discretion, set aside any default on motion filed within 30 days after the entry of the order. (See 753 ILCS 5/2— 1301(e) (West 1992).) In the absence of a transcript of the hearing on motion to vacate the judgment order, we have no basis on which to determine whether the trial court abused its discretion in denying defendant’s motion. (Foutch v. O’Bryant (1984), 99 Ill. 2d 389, 394, 459 N.E.2d 958, 960.) The docket sheet entry by the trial court, denying defendant’s motion to vacate the judgment and motion to modify the judgment of foreclosure, indicates that defendant was present, as was counsel for the bank, for the hearing on the pending motions. It must be presumed that the denial of the motion was in conformity with the law and was properly supported by the evidence. Foutch, 99 Ill. 2d at 394, 459 N.E.2d at 960.

Although the primary concern of the court in ruling on a motion for default judgment is to insure that substantial justice between the parties is achieved, the doing of substantial justice must also respect the rights of the plaintiff and other litigants whose case has merited the attention of the court. (Wilkin Insulation Co. v. Holtz (1989), 186 Ill. App. 3d 151, 155, 542 N.E.2d 157, 160.) Defendant failed to respond to the service of the complaint and summons in a timely fashion. The answer in abatement was filed many months after he was served with the complaint, apparently in response to the bank’s motion for judgment on the complaint for foreclosure. Although defendant appeared pro se, a pro se litigant is not entitled to any special consideration and is required to comply with the rules of procedure. (People v. Fowler (1991), 222 Ill. App. 3d 157, 163, 583 N.E.2d 686, 691.) The trial court properly denied defendant’s last-ditch effort to further protract the foreclosure proceedings.

Defendant’s final claim is that the trial court improperly applied the redemption provisions governing mortgage foreclosures, which became effective July 1, 1987 (735 ILCS 5/15 — 1603 (West 1992)), to his indebtedness, which was incurred prior to that date. He maintains that he was entitled to application of redemption and sales statutes in effect on February 8, 1983. This was the date he signed his mortgage. He argues that the application of the statute in effect at the time of the default judgment, which provides for a shorter redemption period and other procedural changes, was improper. We disagree.

Federal Land Bank v. Bergmann (1989), 190 Ill. App. 3d 779, 546 N.E.2d 1171, held that those mortgage foreclosure complaints filed after July 1, 1987, were governed by the new law, despite the fact that the mortgages sought to be foreclosed were entered into prior to the effective date of the new law. This conclusion was based on the court’s interpretation of section 15 — 1106 of the Code of Civil Procedure. (Ill. Rev. Stat. 1987, ch. 110, par. 15 — 1106 (now 735 ILCS 5/ 15 — 1106 (West 1992)).) That section provides that in complaints for foreclosure filed after the July 1, 1987, effective date, the new law would apply. The Act was amended effective November 23, 1987, in response to concerns about foreclosures which were commenced prior to that effective date. (See, e.g., Bender & Lindberg, The Illinois Mortgage Foreclosure Law, 76 Ill. B.J. 800 (1987).) This amendment provided that a complaint to foreclose a mortgage filed before July 1, 1987, and all proceedings and third-party actions in connection with such a complaint, were to be adjudicated pursuant to the Illinois statutes and applicable law in effect immediately prior to July 1, 1987. See Ill. Rev. Stat. 1987, ch. 110, par. 15 — 1106(f) (now 735 ILCS 5/ 15 — 1106(f) (West 1992)).

Defendant claims that the application of the 1987 amendments to mortgages entered into prior to that , date constitutes a retroactive application of law which affects his substantive rights. We disagree. We noted in Federal Land Bank v. Bergmann that when application of a new procedural rule destroys a right, the statute or amendment affecting the right is not to be applied retrospectively. (Federal Land Bank v. Bergmann, 190 Ill. App. 3d at 785, 546 N.E.2d at 1175.) Here, however, the change embodied in the amended statute was procedural, and no one has a vested right in any particular procedure. (Schuttler v. Ruark (1992), 225 Ill. App. 3d 678, 685, 588 N.E.2d 478, 482.) In the absence of a savings clause, an amended statute may apply retroactively where the legislature so intended and where the statute affects the remedy or matters of procedure. (In re Marriage of Macino (1992), 236 Ill. App. 3d 886, 889, 603 N.E.2d 105, 108.) By the explicit language of the statute, the procedures and remedies are to apply retroactively to instances such as the case at bar. The trial court properly applied the amended statute to the situation in the present case.

The orders of the trial court granting judgment for plaintiff, striking defendant’s answer in abatement, and denying defendant’s motion to vacate are affirmed.

Affirmed.

CHAPMAN, P.J., and LEWIS, J., concur.


author: JUSTICE DOYLE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARK T. GENGLER, Defendant-Appellant.
    Second District
    No. 2—91—0199
    Opinion filed September 29, 1993.

      G. Joseph Weller and Patrick M. Carmody, both of State Appellate Defender’s Office, of Elgin, for appellant.
    David R. Akemann, State’s Attorney, of Geneva (William L. Browers, Marshall M. Stevens, Stephen E. Norris, and Scott A. Manuel, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE DOYLE

delivered the opinion of the court:

Defendant, Mark Gengler, was found guilty of the unlawful possession of a converted vehicle (Ill. Rev. Stat. 1989, ch. 951k, par. 4— 103(a)(1) (now codified, as amended, at 625 ILCS 5/4 — 103(a)(1) (West 1992))), and the trial court sentenced him to a term of probation. Defendant appeals his conviction and raises two issues for review: (1) whether the jury instructions failed to state correctly the elements of the offense; and (2) whether the trial court improperly responded to the jury’s question during its deliberations.

Defendant was charged with attempted murder (Ill. Rev. Stat. 1989, ch. 38, pars. 8 — 4(a), 9 — 1(a)(1) (now codified, as amended, at 720 ILCS 5/8 — 4(a), 5/9 — 1(a)(1) (West 1992))) and robbery (Ill. Rev. Stat. 1989, ch. 38, par. 18 — 1(a) (now 720 ILCS 5/18 — 1(a) (West 1992))), in addition to possession of a converted vehicle.

At the jury trial, the victim, Lawrence Zengri, testified that on July 21, 1990, he met defendant in front of a tavern in Aurora. Defendant suggested that he get a movie and the two would go to Zengri’s home and have a few beers. Zengri agreed, and defendant picked up a videotape from his apartment. Zengri drove defendant to Zengri’s apartment in West Chicago, where they drank alcohol and watched the videotape movie “Deep Throat.” After the movie, Zengri drove defendant back to Aurora, sometime in the early morning hours of July 22. Defendant did not want to go home because it was so late and his mother would have asked questions. Defendant requested that Zengri drop him off at a friend’s home. Zengri drove defendant to the west side of Aurora, and they drove around for about an hour.

Zengri further testified that defendant then directed him to park by a trail walk on Jericho and Edgelawn Roads. Zengri pulled the car into a parking area, and defendant demanded the keys to the car. When Zengri resisted, defendant punched him in the face, loosening three of Zengri’s teeth. Defendant also choked him and threatened to kill him if he did not give defendant the keys. Zengri stated that he drove into a gas station while defendant was choking him. Zengri felt himself blacking out, so he gave defendant the car keys. After Zengri got out of the car, defendant demanded his wallet, and Zengri complied. Defendant began driving the car and hit Zengri in the chest with the car. Defendant drove behind the gas station, came around, and hit Zengri again, striking him in the thigh and knocking him to the ground. Defendant drove off, and Zengri got up and walked to a house to call for help. It was around 5 a.m. Zengri was taken to the hospital by an ambulance, and he was hospitalized for 11 days.

On cross-examination, Zengri first stated that all he and defendant did at Zengri’s apartment was watch the movie, but later admitted that he had sex with defendant. Also on cross-examination, Zengri admitted that he had a “billy club” in his car under the seat and he hit defendant with it while defendant was in the driver’s seat and Zengri was out of the car. Zengri also admitted that he “accidentally” smashed the rear window of the car with the billy club. Somehow, defendant gained possession of the billy club, but he did not hit Zengri with it. Zengri did not notice anything unusual about defendant’s leg or that he walked with a limp. Zengri could not recall if defendant stopped to ask him if he wanted to go to the hospital, nor could Zengri recall if he told a police officer that defendant did so.

Around noon on July 22, 1990, the police found Zengri’s car parked in Aurora about a block from defendant’s apartment. The car had only a rear license plate, which was registered in defendant’s name. In the trunk of the car was a box containing Zengri’s VCR, a calculator, and some of his jewelry. The police also recovered the videotape movie “Deep Throat” from defendant’s apartment.

Kane County Sheriff’s Deputy Mike Anderson testified that when he interviewed Zengri in the hospital Zengri could not recall the name of the movie and remembered it later the following day, after the police had found the videotape. Anderson stated that Zengri told him that after the fight was over defendant offered to take Zengri to the hospital and that Zengri informed Anderson that defendant had taken the billy club from Zengri, but did not use it. Anderson also impeached Zengri’s testimony that he was not hit in the grassy area behind the gas station and that defendant had driven behind the gas station. Finally, Anderson related that, although Zengri did not tell one of the other police officers, Zengri told Anderson that he and defendant had sex.

According to the owner of the gas station, there was a pay phone near the gas station, and there were lights by the phone.

Defendant presented the testimony of several witnesses, including his treating physician, which showed that at the time of the incident defendant wore a leg brace which immobilized his right knee. A couple of months before the incident, defendant had been hit by a car, breaking his right leg. The brace went from the mid-thigh to his ankle and held his knee straight, causing defendant to limp. The nurse at the Kane County jail also testified that, in addition to defendant’s swollen right knee, defendant also had bite marks on his forearm and finger.

Defendant testified that he was in a bar next to his apartment building drinking tequila and beer when Zengri approached him. Zengri complimented defendant on his tattoos. The two then discussed defendant’s leg and how he lost his job because of the injury. Zengri told defendant that he could get defendant a job at the company where Zengri worked. Zengri suggested that defendant accompany him and he would show defendant where the business was so that defendant could apply for work there. Zengri also suggested that they “go party.” Defendant agreed.

Upon leaving the bar, defendant went to his apartment to tell his mother he was going out. The two men then stopped at a store and bought beer. Zengri drove to his place of work in St. Charles. They stopped there and talked for 15 minutes, after which they drove for about two hours, “[j]ust cruising around and drinking beer.” They ended up on the west side of Aurora at the nature trail.

Zengri parked the car, and they drank and talked. Defendant mentioned that it was getting late and he needed to go home. Zengri asked defendant if he liked “partying.” Defendant assumed Zengri meant getting “a buzz,” drinking, or smoking marijuana, so defendant said yes. Zengri put his arm around the back of defendant’s seat, put his other hand on defendant’s crotch, and grabbed defendant by the back of the neck, pulling him toward Zengri. Defendant punched Zengri in the face because he believed that Zengri was going to assault him sexually. Defendant had been molested by a foster parent when he was a teenager.

After defendant punched Zengri, defendant tried to get out of the car, but could not find the door handle. Zengri then hit defendant in the back of the head with a billy club. Defendant got the billy club away from Zengri and threw it in the backseat. Before defendant had a chance to open the car door, Zengri put the car in gear and drove out of the nature trail parking lot. Defendant grabbed the steering wheel in an attempt to turn the car off the road. The car pulled into a gas station parking lot, with defendant and Zengri still fighting for control of the steering wheel. The car’s gear shift was on the console, so defendant “slammed it into park.” The car slid sideways, while the two fought over the gear shift. The car went back in gear, and they resumed fighting over the steering wheel. Defendant tried to push Zengri to the side, but Zengri bit him.

The car struck the gas station wall, and they flew forward. The driver’s door of the car opened, but defendant was not sure whether the impact forced it open or whether Zengri opened it. Defendant pushed Zengri out of the car. Zengri was halfway in and out of the car and trying to get back up, so defendant reached over with his left foot and pressed the accelerator to the floor. Defendant shifted the car into reverse, and the car backed up. At some point Zengri was no longer in the car, and defendant assumed that he had been dragged by the car. Defendant slammed the car back into park, and it stopped. The driver’s door swung shut, so defendant reached over to lock the door. Just then Zengri smashed the back window. Zengri was standing on the driver’s side of the car, reaching in trying to grab defendant. Defendant put the car back in drive and pulled away. The car ran into something, possibly a post. Defendant drove through a grassy area and ended up in the parking lot of a strip mall next to the gas station.

Defendant saw Zengri sitting on the ground in the middle of the gas station parking lot. He appeared to be hurt. Defendant got out of the car and took a few steps toward Zengri, offering to take him to the hospital. Zengri told defendant to leave. When Zengri started to get up, defendant got back in the car and drove home.

When defendant arrived home, he went inside and drank a couple of beers. He then decided that he ought to notify the police. When he went back outside the .sun was rising, and he was able to see that the car did not have any license plates on it. Defendant had not noticed whether there were plates on the car earlier in the evening. Defendant was afraid he would get pulled over if he drove to the police station without license plates on the car, so he put his own license plate on the back of the car.

Defendant then drove to the Aurora police department. He sat in the parking lot for about an hour, but decided not to go in because he could not bring himself to tell the police what happened to him. Defendant drove the car back to his street and parked it. He took all of his things out of the car and mistakenly took a videotape which was not his.

In rebuttal, Zengri testified that the items found in the box in the trunk of his car were in his apartment when he drove defendant back to Aurora, but were missing from the apartment when Zengri was released from the hospital following the incident. Zengri also stated that the car had license plates on it the night of the incident. Deputy Anderson admitted, on rebuttal, that the police did not dust the box or the items in it for fingerprints.

The jury acquitted defendant of attempted murder and robbery, but found him guilty of possession of a converted vehicle. Following sentencing, defendant timely appealed.

Defendant first contends that his conviction should be reversed because the trial court incorrectly instructed the jury regarding the elements of the charged offense.- Specifically, defendant argues that a conviction for the offense of possessing a “converted” motor vehicle requires proof that the motor vehicle in question was taken with an intent to permanently deprive the owner of its use or benefit.

Initially, it is noted that defendant neither objected at trial to the elements instruction given to the jury, nor offered any alternative version proposing to remedy the defect now complained of on appeal. At defendant’s request and over the State’s objection, the following substantive instruction was given which incorporated the defense of necessity:

“A person commits the offense of possession of a converted vehicle when that person, not acting out of necessity, possesses a vehicle when not entitled to possession of the vehicle and when knowing it to have been converted.
Property has been converted if a person lawfully entitled to possession of the property has been wrongfully deprived of it.
* * *
To sustain the charge of possession of a stolen or converted vehicle, the State must prove the following propositions:
First: That the [defendant possessed a vehicle; and,
Second: That the [defendant was not entitled to possession of the vehicle; and,
Third: That the [defendant knew that the vehicle was converted; and,
Fourth: That the [defendant did not act out of necessity.
If you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, you should find the [defendant guilty.
If you find from your consideration of all the evidence that any one of those propositions has not been proved beyond a reasonable doubt, you should find the [defendant not guilty.”

While failing to object to jury instructions at the time of trial generally waives any claim of error, substantial defects are not waived by a failure to make a timely objection thereto if the interests of justice require. (See 134 Ill. 2d R. 451(c); People v. Pasch (1992), 152 Ill. 2d 133, 171.) Instructions on the elements of the offense charged fall within that category of instructions to which the concept of waiver will not be employed to bar reversal if a defendant is convicted in the absence of a necessary instruction. (See Pasch, 152 Ill. 2d at 171; People v. Reddick (1988), 123 Ill. 2d 184, 198.) Because defendant argues that the instructions given did not properly state the elements of the offense, we will review the issue in spite of his failure to raise the issue during trial.

The instructions given here were modified forms of Illinois Pattern Jury Instructions, Criminal, Nos. 23.14, 23.15, 23.15A (Supp. 1989) (IPI Criminal 2d Nos. 23.14, 23.15, 23.15A (Supp. 1989) (now IPI Criminal 3d Nos. 23.35, 23.36, 23.35A, respectively (1992))). An IPI instruction should be given, rather than a non-IPI instruction, if the IPI instruction accurately states the law. (134 Ill. 2d R. 451(a).) Defendant asserts that the IPI instructions given did not accurately state the law because they did not inform the jury that the conviction “requires proof that defendant intended to permanently convert the car and deprive the owner of its use.” Defendant relies on People v. Sergey (1985), 137 Ill. App. 3d 971, in support of his contention.

In Sergey, the defendant was convicted of possessing a converted motor vehicle. The defendant claimed he took a car which he mistakenly believed was owned by his employer. The keys had been left in the vehicle’s ignition. He did not first obtain permission of the employer to borrow a car, but the evidence was undisputed that defendant’s employer would have granted him permission to use a vehicle. The defendant went to a tavern for 20 minutes, and as he was heading back to return the car, he was arrested for driving under the influence of alcohol. In considering whether the defendant possessed a converted vehicle, the court determined the meaning of the term “converted” as used in section 4 — 103(a)(1) of the Illinois Vehicle Code (Vehicle Code) (625ILCS 5/4 — 103(a)(1) (West 1992)). The court stated:

“Illinois case law generally defines civil conversion of a chattel as an unauthorized and wrongful assumption of the right to possession or ownership in the property which deprives the owner of his rights as owner. [Citations.] The measure of damages for conversion is the full value of the chattel, so the tort of conversion is usually confined to those major interferences with a chattel or the owner’s rights therein which are so egregious as to merit what is, in essence, a forced judicial sale of the property. [Citations.] Both the Restatement and Prosser and Keeton’s text agree that a brief unauthorized use of a car left undamaged by the defendant, such as his driving it only 10 miles, as opposed to a trip of hundreds of miles, should not be held to be a conversion.” Sergey, 137 Ill. App. 3d at 975.

After reviewing the use of the term “conversion” in the civil context, the court concluded that no conversion had occurred because “there was not proof of damage to the car and the owner did recover it. Also, defendant had no intent to permanently deprive the owner, and it is unrefuted that the defendant’s employer, whom defendant believed was the owner, would have given him permission to use the vehicle had he owned it. And *** defendant here only temporarily used the property without causing any harm to it.” (Sergey, 137 Ill. App. 3d at 975-76.) Subsequent to our decision in Sergey, IPI Criminal 2d was supplemented to include an instruction defining the term “converted” as it is used in section 4—103(a). See IPI Criminal 2d No. 23.15A (Supp. 1989) (“Property has been ‘converted’ if a person lawfully entitled to possession of that property has been wrongfully deprived of it”). (Emphasis added.)

In People v. Washington (1989), 184 Ill. App. 3d 703, we were asked to consider an instruction defining the phrase “converted property” to mean “property over which unauthorized control has been obtained by the act of actually appropriating the property of another to his own beneficial use and enjoyment.” (Washington, 184 Ill. App. 3d at 709.) The defendant complained on appeal that, in the context of section 4 — 103(a)(1), conversion requires an intent to permanently deprive the owner of his property and a failure to so instruct requires reversal. We rejected this argument, specifically noting that “Sergey is not authority that a jury must be instructed as to intent to permanently deprive.” (Washington, 184 Ill. App. 3d at 709.) We approved the use of the above IPI Criminal 2d No. 23.15A (Supp. 1989) for defining the term “conversion,” as well as the non-IPI instruction which the trial court had given instead. Washington, 184 Ill. App. 3d at 709.

Washington held that intent to permanently deprive is not an element of the offense of possessing a stolen or converted motor vehicle. (Washington, 184 Ill. App. 3d at 708.) We recognized, however, that a conviction under section 4 — 103(a)(1) may be predicated upon possession by the same individual who allegedly committed a previous theft of the motor vehicle, and, in such a case, proof of a defendant’s mental state inconsistent with that required for theft would prevent a conviction of possession of a stolen motor vehicle. See Washington, 184 Ill. App. 3d at 708.

Two other decisions of this court have also recently dealt with this issue. In People v. Pozdoll (1992), 230 Ill. App. 3d 887, and People v. Cozart (1992), 235 Ill. App. 3d 1076, we reexamined the holding in Washington and Sergey. In Pozdoll, we noted that “[t]he court [in Sergey] reversed defendant’s conviction on the conversion claim because defendant justifiably thought he was borrowing his employer’s car, defendant had no intent to criminally deprive the owner, and it was unrefuted that defendant’s employer would have granted permission to use the vehicle.” (Emphasis added.) (Pozdoll, 230 Ill. App. 3d at 889.) Sergey’s case required reversal because the defendant lacked knowledge that the vehicle he possessed was converted and, accordingly, lacked mens rea. We have specifically rejected the assertion that conversion cannot be found where there is only a temporary use of property without causing harm to it. Pozdoll, 230 Ill. App. 3d at 890.

In Cozart, the defendant was charged with possession of a stolen, rather than a converted, motor vehicle. The evidence revealed that the defendant himself had taken the car originally, but the circumstances under which the car was taken were disputed. Relying on Washington, we again held “that intent to permanently deprive is not an element of the offense of possession of a stolen motor vehicle, and defendant’s mental state in that regard was irrelevant.” (Cozart, 235 Ill. App. 3d at 1082.) In those cases, however, where the defendant charged with possession of a stolen motor vehicle is also the person who allegedly committed the underlying theft, proof that the defendant’s mental state was inconsistent with that required for theft would prevent a conviction under section 4 — 103(a). (Cozart, 235 Ill. App. 3d at 1082.) This conclusion flows from a plain reading of the section’s language. A person may be charged with the possession of a stolen motor vehicle even if he is the one who has stolen it, but in such a case the defendant would have to know he had stolen it. (Cozart, 235 Ill. App. 3d at 1080, citing People v. Cramer (1981), 85 Ill. 2d 92, 100.) Cozart recognized that, in such a case, a defendant’s proposed instruction defining the elements of theft, including the requisite intent to permanently deprive, was tantamount to a requested instruction on the defendant’s theory of the case. (See Cozart, 235 Ill. App. 3d at 1082-83.) A party is entitled to have the jury instructed on his theory of the case, and it is an abuse of discretion for the court to refuse to instruct the jury on the defendant’s theory of the case if it has some foundation in the evidence. Cozart, 235 Ill. App. 3d at 1083; People v. Swartz (1989), 186 Ill. App. 3d 399, 401.

We hold that the principles delineated in Cozart and its predecessors are also applicable in those cases in which a defendant who is charged with possessing a converted motor vehicle is also the individual accused of committing the initial “conversion.” The act of conversion, as it is understood in the context of section 4 — 103(a), has been adequately defined by IPI Criminal 2d No. 23.15A (Supp. 1989) and the line of cases discussed above as requiring a wrongful deprivation of the vehicle. It is possible, as was arguably the case in Sergey, for an individual to “convert” a motor vehicle, for purposes of civil liability, without knowledge of the fact that he or she had done so; however, because the crime of possession of a converted motor vehicle requires the accused be proven to have known that the vehicle was converted, a defendant in the foregoing Sergey illustration would not be guilty of violating section 4 — 103(a)(1) because that individual lacked knowledge that the person lawfully entitled to possession of the motor vehicle had been wrongfully deprived of it.

The facts of the present case, however, do not resemble the facts presented in Sergey. Here, defendant admitted taking the victim’s car without consent, but claimed that the taking was justified under a “necessity” theory. (See Ill. Rev. Stat. 1989, ch. 38, par. 7— 13 (now 720 ILCS 5/7 — 13 (West 1992)).) For the defense of necessity to be applicable, defendant must admit he committed the offense since necessity merely justifies an otherwise criminal act. (People v. Pickett (1991), 217 Ill. App. 3d 426, 428.) In view of defendant’s admitted version of the incident, there was no possibility that the jury might reject his necessity defense and at the same time find that he did not intend a wrongful conversion. Defendant’s testimony established that his actions in taking the vehicle were intentional and would necessarily have constituted a wrongful taking, absent circumstances justifying his actions as necessary. The necessity theory of defense was presented to the jury through instructions submitted by defendant, and the jury rejected it based upon the evidence. We conclude that the trial court correctly instructed the jury on this question.

The second issue raised by defendant is whether the trial court’s actions in responding to a jury inquiry coerced a verdict. During deliberations, the jury sent a written question to the trial court asking whether it could return a verdict on two of the three charged counts. Relying on Jenkins v. United States (1965), 380 U.S. 445, 13 L. Ed. 2d 957, 85 S. Ct. 1059, defendant argues that the trial court erred in responding that the jury was required to return verdicts on all three counts. Defendant’s case, however, must be distinguished from Jenkins, where the jury had advised the trial court that it was unable to agree on a verdict “because of insufficient evidence,” and the trial court had responded that the jury had to reach a decision. (Jenkins, 380 U.S. at 446, 13 L. Ed. 2d at 958, 85 S. Ct. at 1060.) The United States Supreme Court, per curiam, held, under these circumstances, that the trial court had coerced guilty verdicts. Jenkins, 380 U.S. at 446, 13 L. Ed. 2d at 958, 85 S. Ct. at 1060.

In defendant’s case the jury’s note gave no indication that the jury was deadlocked. When the jury is not deadlocked, it is not coercive to inform the jury that it must return verdicts on all counts. (People v. Rollins (1982), 108 Ill. App. 3d 480, 486.) Also, it is only through speculation that defendant concludes that the count at issue in the jury’s question was the possession of a converted motor vehicle charge. Such speculation is insufficient to demonstrate any actual prejudice to defendant. (See People v. Reid (1990), 136 Ill. 2d 27, 40-42.) We conclude that the trial court committed no error in its response to the jury’s inquiry.

For the foregoing reasons, the judgment of the circuit court of Kane County is affirmed.

Affirmed.

UNVERZAGT and McLAREN, JJ., concur.