Thursday, December 27, 2012

Misnomer? Or Mistaken Identity? Which is which and does it matter?

In my relatively short time in private practice I have already encountered a surprising number of complaints that get the defendant(s) name wrong.  Sometimes the plaintiff is obviously unsure who to sue and over does it, listing a slew of (possibly) related entities and individuals in hopes of hitting the right one.  Sometimes a shorter list of defendants is used but the complaint confuses who participated in the transaction/event and how.  Sometimes the plaintiff just plain gets the defendant wrong. 

The impact of these mistakes depends on whether the error is a Misnomer or Mistaken Identity.  A misnomer is fixed “at any time, before or after judgment, on motion, upon any terms and proof that the court requires.”  (735 ILCS 5/2-401(b)).  Mistaken identity makes any judgment entered void ab initio.

A recent Fifth District opinion addresses the difference between the two and the impact of the error.  American Express sued “Ron Kosydor and HighRPMracer, Inc.” for $150k in credit card debt.  Summons was issued and finally served on “Ron Kosydor” and a default judgment was entered against “Ron Kosydor.”  But two people – father and son – named Ron Kosydor live on the same street in Alto Pass, Illinois.  The Son was served with the lawsuit and was the registered agent of the corporation.  But in post-judgment collection proceedings citation documents were sent to the Father and these documents identified the last four digits of a SS# that apparently belonged to the Father.   

The Son sued AmEx and its law firm for collecting a debt from him that was not his.  AmEx argued that res judicata barred the lawsuit: there was a final judgment in the prior collection lawsuit which was between the same parties and involved the same transaction.  In deciding that res judicata barred the lawsuit against AmEx, the court analyzed the difference between a misnomer and mistaken identity.    

Relying on Capital One Bank, N.A. Vs Czekal, 379 Ill App 3d 737 (2008) the Kosydor court explained that the misnomer statute only applies when the party is correctly joined and served but merely called by the wrong name and in such cases the court had jurisdiction over the party and the judgment is good.  But with mistaken identity the wrong person is joined and served and the court has not acquired personal jurisdiction over this person

To determine whether the error is a simple misnomer or a case of the judgment-killing mistaken identity the question is the plaintiff’s intent: who did the plaintiff intend to sue?  And the best evidence of this subjective intent is any objective manifestations of the plaintiff’s intent when the lawsuit was filed.

The Kosydor court found objective evidence that AmEx intended to sue the Son: his name and address were on the summons, the AmEx account was connected to this address, no evidence existed of the Father’s involvement with the account or the corporation.  The confusion which brought the Father into the post-judgment proceedings was not persuasive.  Because the error was a mere misnomer, this meant Son - the plaintiff - had been a party to the underlying lawsuit and res judicata applied to the Son’s lawsuit against AmEx.

Compare this to the Capital One case where the court found both a misnomer and mistaken identity: naming the defendant as a DBA, “Joseph Czekala DBA Sealand Foods,” when its contract was with a corporation, Sealand Foods, Inc., was a misnomer; linking Czekala to the account was a mistake because the objective evidence showed the relevant documents were signed by Czekala as the corporation’s president.  Because it was a case of mistaken identity, the judgment Capital One had obtained against Czekala was void ab initio.  

Kosydor v American Express Centurion Services Corporation, American Express Bank F.S.B, and Baker, Miller, Markoff & Krasny, LLC, 2012 Ill App 5th 120110.
Submitted by Brian D. Moore, Class of ’92.

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