## I LLINOIS 

## O FFICIAL 

## R EPORTS Appellate Court

Cornerstone Bank & Trust, N.A. v. Consolidated Grain & Bar ge Co. , 2011 IL App (4th) 100715

Appellate Court Caption CORNERSTONE BANK AND TRUST, N.A., Plaintiff-Appellant and Cross-Appellee, v. CONSOLI DATE D GRAIN AND BARGE COMPANY, a Missouri Corporation; CAR GIL L, I NC., a Delaware C orporation; C ARROLLTO N FARMERS ELEV

ATOR, a Corporation ; TRI COUNTY F S, INC ., a Co rpor ation; PHI FIN ANCI AL SER VICE S, INC., a Corporation; and COMMODI TY CR EDIT CORPORATION,

a Corpor atio n Acting Through the United States Depar tment of Agric ulture, D efenda

nts-Appe llees an d Cross-A

ppellant s.

District & No. Fourth District Docket No. 4–10–0715

Filed June 27, 2011

Held ( N ote: Thi s syllabu s constitutes no part

of the opinion of the court but has been prepared by th e Reporter of Decisions for the conven ie nc e of the reader. ) Where plaint iff bank did not comply with notice requirements of section 9–320(f) of the Uniform Commercial Code, it did not “perfe ct its security interest” in the grain a farmer sold to defenda nt grain elevator, and section 1631 of the Food Security Act preempted the portions of the Code that conflicted with the Act’s expressed purpose of removin g obstructions to interst

ate commerce; therefore, the g rain elevator’s protected interest as a purchaser of farm product prevailed.

Decision Under Review Appeal from the Circuit Court of Greene County , No. 10–L–5; the Hon. Jame s W. D ay, Judge , pres idin g.-2-

Judgment Affirmed.

Counsel on Appeal Charles E. The ivagt (argue d), of Gu stine, The ivagt, D avis & Collins, Ltd., of Carro llton, for

appella nt.

Mark S. Co chran (argued), of B ellatti, Barton & Cochran, L LC, of Springf ield, for appelle es.

Panel JUSTICE STEIGMANN delivered the judg ment of th e court, with opinion. Presiding J us tice Knecht and Justice McCullough concurred in the judgment and opinion.

OPINION

¶ 1 This case presents the question of whether section 1631 of the F ood Security Act of

1985 (7 U.S.C. § 163 1 (2006)) , which seeks to re move burd

ens and o bstructio n s to inters tate

commerce in farm products, preem pts th e pertinent portions of the Uniform Commercial Code (UCC) (810 I LCS 5/1–103 through 13–101 (West 2008)) that conflict with the expresse d purpose

of the Ac t. We conc lude that in this cas e, the Act preemp ts the UCC. ¶ 2 Following a July 201 0 hearin g, the tr ial cour t entere d an orde

r that (1) denie d th e summary-judgment

motion of plainti ff, Corne rstone B ank and T

rust, N.A . (the B ank), asto count I and (2) g

ranted the summary -judgment motion of defendant, Consolidated Grain and Barge Company

(Consolida

te d), with regard to the competing interests the B ank and Consolidated had in ce

rtain fa rm products. Specifically, the c ourt found that (1) section1631 of the Act did not

preempt the appli cation of

Illin ois law to r

esolve the partie s’ dispute and (2) by fa iling to comply

withthe notice requirements of section 9–320(f) of the UCC (810 IL CS 5/9–320(f

) (West 200 8)), the

Bank did not “per fect its s ecurity

interest ” and, thu s, Consolidated’s protected interest as a purchaser of farm products prevailed. I n August 2010, the Bank fi led a motio n for lea ve to file an amend

ed count I
, which the trial court later denied. ¶ 3 The Bank appeals, arguing that the trial court erred

by ( 1) deny

ing its summary-judg ment motion, (2) granting summary judgment in Consolidated’s favor, and (3) deny ing its motion for leave to fil e an ame nde d co unt I. Consolidated cross-appeals, arguing tha t the court erred by finding that section 1631 of the Act did not pree mpt the pe rtinent po rtions of t he UCC that conf lict with th

e express ed purpo se of the Act. ¶ 4 Becau se we conclude that theBank fa iled to protect its pe

rfecte d security

interest under-3-

the expre ssed ter

ms of sec tion 1631( e) of the Act (7 U. S.C. § 1631( e) (2006 )), we a ffirm.

¶ 5 I. BACKGROUND ¶ 6 The following fac ts were gleaned fro m the parties’ pleadings and other supporting document s filed in t

he trial c ourt. ¶ 7 At

five diff erent tim es betw ee n M ay 2 00 1 a nd Ma y 2 007, the Bank loaned Rick Beiermann, a farme

r, and hiswife (c ollective ly
, the Beie

rmanns) a total of

$985,143 t

o finance their

farm operations. In exchang e, the Beiermanns executed five promissory notes that were each secured, in par t, by the following f

arm products: “All crops [and] equipment

now owned or

hereaf ter acq uired.” To perfe

ct its cont

inuing security

interest in the fa rm products, the Bank filed the appropriate financing statements pursuant to section 9–310(a) of the UCC (810 IL

CS 5/9–310(a) (West 2006)). ¶ 8 In 2005 and 2 006, Rick e ntered i nto six separa

te contr acts to se ll a total of 55,000 bushels of corn to Consolidated for delivery between De cem ber 200 5 an d De cem ber 200 7. In exchange, Consolidated, which was engaged in the business of buying fa

rm products from local farmers, agree d to purchase the corn from Rick at a predete rmined price. ¶ 9 At the start

o f the 2008 crop y ear, Rick planted soy beans on farmland he rented. In August 2008–after defaulting on their promissory no tes to the Bank–a confession of judgment in the amount of $748, 779 w as filed against the Beiermanns a nd in favor of the Bank. During the time that the Beiermanns were addressing their fin ancial p roblems w ith the Bank, Consolidated was taking various actions to accommodate Rick’s failure to deliver the 55,000 bus hels of corn by f irst orally e

xtending a

nd modify

ing the e xisting g rain con tracts and then c ancelling and imp lementing new gr ain contr acts. ¶ 10 In July 2008, the Bank sent Consolidated a “Notice of Security

Interest” by

certified mail. In particular, the Bank’s notice contained the following information: (1) the Bank, identified by name and address, as the secured party ; and (2) the Beiermanns, identified by individual
name, address, and a single social-secur ity number, as debtors to the Bank. In addition, the noti ce stat ed the follo wing: “The Debtor has named you asa potential buyer, c ommission merchant or selling agent of farm products. You are hereby givennotice pursuant to the Food Security Act of 1985 that the Debtor has given a security interest to the secured

party in (1) the farm pro ducts d escribed bel ow and (2 ) any procee ds from the

sale of s uch far

m product s. This is effective for 1 y

ear from the date you receive it.” Thereafter, the notice identified the farm products subject to the Bank’s perfected

security interest as “all” the “corn, soy beans, and wheat” from the 2008 crop y ear. ¶ 11 In December

2008, Rick

deliver ed 953 bus hels of c orn and 6 ,082 bushe ls of soybeansto Consolidated, which it later sold for $2,370 and $59,392, respectively . After pay ing Rick’s farmlan d-r ental lien, Consolidated credited (1) $2,370 to Rick’s existing contracts and (2) $45,266 to the contracts Rick had previously defaulted on. ¶ 12 In April 2010, Corners tone filed a four-count complaint, suing (1) Consolidated; (2) Cargill, I nc.; (3) Carrollton Farmers Elevator; and (4) Tri County FS, I nc., Phi Financial-4-

Service s, and Commodity Credit Corporation. Count I sought to en force the Bank’ s perfected

se curity i nterest in the Be

iermann s’ farm p

roducts o ver Conso lidated’ s contra cted rig ht to those farm products. (The remaining counts conc erned the Bank’s competing interest in the Beiermanns’ farm products among other gr ain companies an d the prior ity o f its secu

rity interest among other lending institutions, which are not the subject of this appea l.) ¶ 13 In June 2010, Consolidated filed an amended answer and affirmative defense. Wi th regard to its affirmative defense, Consolidated claimed, in pertinent part, that it “took the Beiermanns’ grain f

ree and clear o f [the Ba

nk’s] sec urity

interest” because the Bank failed
to comply with the written notice requirements of section 1631(e) of th e Ac t. In particular, Consolidated noted tha

t the Ban k’s July 2008 notic e of security

interest did not “specify

the county or counties in which th

e farm p roducts w ere pro duced or

located .” Shortly

thereafter, Consolidated filed a moti o n for summary judg ment pursuant to section 2–1005(b) of the Code of Civil Proce dure (Civ

il Code) (735 IL

CS 5/2–1005(b) (West 2008)), alleging that as

a “buyer in the

ordinar y c ourse of

business, ” as def

ined by section 1 631(c)( 1) of the Act, it took the Beiermanns’ farm products free of the Bank’s perfected security interest pursuant to section 1631(d) of the Act (7 U.S.C. §§ 1631(c)(1), (d) (2006) ). ¶ 14 In July

2010, the Bank fi led a motio n for summa ry judgmen t on count I

of its complain

t, claiming that sec tion 1631 of the Act w as not app licable b ecause Consolidat

ed was no t a buyer in the ordinary c ourse of business as defined by section 1–201(b)(9) of the UCC (810 IL CS 5/1–201(b )(9) (We st 2008)) but, instead, merely “ exercisedits right of offse t again st the grain to satisfy

[Rick’s] indebtedness.” The Bank asserted that as “a person that acquires goods in a tran sfer in b ulk or as se cu ri ty f or or in total or partial satisfaction of a money debt,” Conso lidat

ed wa s expr

essly exc luded from the UCC definition of a buyer in the ordinary c ourse of business. 810 IL CS 5/1–201(b)(9) (West 2008). ¶ 15 At

a July 2010 hearing on the parties’ respective motions for summary judgme

nt, the trial
court consider ed, in par t, (1) Cons olidated ’s arguments that section 1631 of the Act preempt s the UCC with regard to protections for purchaser s of farm product s and (2) the Bank’s argument that the farm-product protections are g overned by section 9–320 of the UCC (810 IL CS 5/9–320 (West 2008)). In August 2009, the court e ntered a written order

that (1) denied the Bank’ssummary-judgme nt mo tion an d (2) granted summary judgment in favor of Consolidated. Specifically, the c ourt found that (1) “resolution of this matter

under I llinois law has n ot be en pr

eemp ted u nder

sect ion 16 31 of

the [A ct]” and (2) because the Bank did
not“perfect its security interest ” by failing to “spec ify

the count

y a nd a rea sonable description of the property ” as required by section 9–320(f) of the UCC, Cons olidated ’s financial interest in the farm products prevailed. ¶ 16 In August 2010, the Ba nk fil ed a mo ti on f or l eav e to fil e an ame nde d co unt I. I n September 2010, the trial court entered a docket e ntry, deny ing the Bank’s motion. ¶ 17 This appeal followed.

¶ 18 II. AN ALYS IS ¶ 19 A. The Trial Court’s Summary Judgment De terminations ¶ 20 The Bank

argue s, in part , that the

trial cou rt erre d by

(1) deny ing its summary-judgment-5-

motion and (2) g

ranting summary judgmen t in Consolidated’s favor. Specifically , the Bank contends that the cou rt err ed by (1) find ing that the Ban k had not p erfec ted its sec urity interest in the Beiermanns’ farm products as required by section 9–310(a) of the UCC; (2) finding that Consolidated was a buy er in the ordinar y c ourse of

business i n contravention of section 1–201(b) (9) of the UCC; (3) failing to recog nize the B ank’s pr

ior lien st atus ove r Consolidated in contravention of section 9–322(a )(2) o f the UCC; and (4) finding that the Bank fa iled to co mply

with the notice req

uiremen ts of sec tion 9–320(f) of the UCC. ¶ 21 For

its part, Consolidated argues that thetrial court erred by finding that section1631 of the Act did not preempt the pertinent portions of the UCC that conflict with the expressed purpose o f the Act

. ¶ 22 We first consider the parties’ respective arg uments pertaining to the preemption issu e , which we find dispositive.

¶ 23 1. Summary Judgment and the Standard of Review ¶ 24 “Summary

judgment is appropri ate where the plea dings, a ffidavit s, deposit

ions, and admissi ons on fil e, when viewe d in t he ligh t mos t favo rable t o the n onmo ving p arty , demonstr ate that there is no genuine issue of material fact and that the moving pa rt y is entitled to judgme

nt as a ma

tter of law.” West Bend Mutual Insurance v. Norton , 406 I ll. App. 3d 741, 744, 940 N.E.2d 1176, 1179 (2010). We review de novo a trial court’s decision

on a motio n for summary judg ment. Benson v . Stafford , 407 Ill. App. 3d 902, 911, 941 N.E.2d 386, 397 (2010). In determining whether the trial court reached the proper result, we neednot conf

ine ourselve s to the court’s rationale but may instead affirm the grant of summary judgment on any

basis supported by the record. Santa’s Best Craft, L.L.C. v. Zurich American Insurance Co. , 408 Ill. App. 3d 173, 180, 941 N.E.2d 291, 299 (2010).

¶ 25 2. The Federal and State Statutes at Issue ¶ 26 a. The History a nd Pertinent Portions of Section 1631 of the Act ¶ 27 In First

Midwest Bank, N.A. v. IBP, Inc. , 314 Ill. App. 3d 255, 257-58, 731 N.E.2d 839, 841 (2000), the Third District noted the following history underly ing sec tion 1631 of

the Act: “During the late 1970s and the 1980s , numerou s farm loan defaults resulted from large loan burdens, depressed land values, and low far m prices. [Citation.] When farmers became unable to pay their loa ns, lende rs bega n to seek payme

ntfrom the purchasers of the farm products that had serv ed as the c ollateral for the farm loans. Debate ensue d regarding the justification fo r a lend er’s recovery against the purchaser of the sec ured farm products

. Congress responded by enacting section 1631, commonly known as the ‘FoodSecurity Act’ ***. [Citation.] Section 1631 now prevails over the farm pro ducts

exce ption of the UCC asit app lied t

o far m prod ucts p urch aser s. [Cit

ation .]” ¶ 28 Sections 1631(a), 1631(b), 1631(c)(1), 1631(c) (5), 1631(c)(10), and 1631(d) of the Act provi de, in perti nent p art, t he fol lowi ng: “(a) Co ngress ional findi ngs-6- Congre ss finds tha

t– (1) certain

State law s permit a

secure d lender

to enforce liens against a purcha ser of farm products even

if the purch aser doe s not know t hat the sa le of the products violates the lender’s security interest in the products, lacks any practical method for discovering the e xi stence o f the sec urity interest , and has no reaso nable me ans to ensure that the seller uses the sales proceeds to re pay the lende

r; (2) these la

ws subjec t the purc

haser of farm pro ducts to double

payment for the products
, once at the time of purchase, and ag ain when the seller fails to repa y the lender; (3) the exposure of purch asers of farm pro ducts to doublepayment inhibits free competition in the market for farm products; and (4) this exposure cons titutes a burden on and an

obstruct ion to inter state

commerc e in far

m product s. (b) Dec laration

of purpos e The purpose of this section is to remove such burden on and obstruct ion to inter state

commerc e in far

m product s. (c) Definitions For the purposes of this section– (1) The term ‘buyer

in the ordin ary

course o f busines s’ means a person who, in the ordinary c o ur se of business, buy s farm pr oducts fr om a pers on enga

ged in farming operati ons who is in

the busine ss of selling far m product s. * * * (5) The te rm ‘far

m product ’ means a

n agric ultural c ommodity

such as w

heat,
corn, soybeans *** that is in the possession of a pe rson engaged in far

ming operati ons. * * * (10) The term ‘person’ means any individual, partnership, corporation, trust, or

an y ot he r b us in es s e nt it y. * * * (d) Purchases fr

ee of se curity

interest

. Exceptas provid

ed in subsection (e ) of this secti on and notwithstanding any other provision of Federal, State, or local law
, a buy er who in the ordin ary

course o f busines s bu ys a farm product from a seller engag ed in farming operations shall take free of a security interest created by

the seller, even though the security intere st is perfected; and the buyer knows of the existence of such interes t.” (Emphas is added. ) 7 U.S.C. §§ 1631(a), (b), (c)(1), (c) (5), (c)(10), (d) (2006). ¶ 29 Section 1631(e) of the Act, entitled “Purchases subject to a sec urity interest,” mandate s, in part, that a “buye

r of farm products takes subject to a security interest created by

the seller if” the buyer ha s received from the s ecured p arty or the se ller a written notice, within one year be fore the sale of the farm products, that contains the f ollowing information:-7- “( I) t he na me an d a dd re ss of th e s ec ur ed pa rt y; (II) th e n am e a nd ad dr es s o f t he pe rs on in de bt ed to th e s ec ur ed pa rt y; (III) the social security numbe r, or other approved unique identifier, of the debtor or, in the case of a debtor doing business other than as an individual, the Internal Reve nue Servi ce taxpayer identification number, or other approved unique identifier, of suc h debtor; and (IV) a description of the farm products subject to the security interest created

by the debtor, including the amount of such prod

ucts whe re appli cable, c

rop year, and the name of each co unty or paris h in whic h the

farm prod ucts a re pr oduc ed or loca ted[. ]” 7 U.S.C. § 1631(e)(1)(A)(ii) (2006).
In addition, section 1631(f) of the Act provides that the term “receipt” “shall be determined by the law of the State in which the buy er resides.” 7 U.S.C. § 1631(f) (2006); see 810 I LCS 5/9–320(f)(2) (West 2008) (“[A] buyer of fa rm products has received notice from the sec ured party or seller

when written notice of

the secu rity interest is sent to the buyer by

registered or certified mail.”). ¶ 30 b. The Codification of Section 1631 of the Ac t Within the U CC ¶ 31 In July 2000, the I llinois legislature expressed its approval of sections 1631 (d) and 1631(e) of

the Act by ( 1) delet

ing the f arm prod ucts exce ption that w as conta

ined withi n section 9–307(1) o f the UCCand (2) adding sections 9–320(a) an d 9 –3 20 (f), re sp ec ti ve ly,
to the UCC, which were in man y in st ances–a lthough not entire

ly– verbati m transcr

iptions. See 810 I LCS 5/9–320 (a), (f) (West 2008) (as added by Pub. Act 91–893, § 5 (eff. July 1, 2001) (2000 Ill. L

egis. Serv. 2424 (West))). However, the leg islature did not codify

section 1631(c)(1) of the Ac t, which, as we have previously noted, defined the term “buyer in the ordinar y c ourse of

business”for purp oses of th e Act. ¶ 32 In stead, section 1 –201(b)( 9) of the UCC define s a buy

er in the ordin ary

course o f business, as follow s:

“ ‘Buy er in or di na ry c ou rs e o f b us in es s’ me an s a pe rs on th at bu ys goods in good faith, withoutknowledg e that the sale viola

te s the rights of another person in the goods, and in the ordinary c ourse from a person, other than a pawnbroker, in the business of selling goods of that kind. A person bu ys g oods in the

ordinar y c ourse if

the sale to the person comports withthe usual or customary pr actices in the kind of business in which the seller is engaged

or with the seller’s ownusual or customary pr actices. *** A buy er in ordinary

course of business may buy

for cash, by

exchange of o ther pro perty, or on sec ured or unsecured

credit, and may

acquire goods or documents of title under a pre existing
contract fo r s al e. On ly a buy er that ta kes posse ssion of the goodsor has a r ight torecover the goods from the seller under Article 2 may be a buyer in ordina ry course o f busines s. ‘Buye r in ordinary cour se of business’ does not include a person that acqui res goods i n

a transfer in

bulk or as security for or in total or partial satisfaction of a money debt .” (Emphasis added.) 810 IL CS 5/1–201(b)(9) (West 2008).-8-

¶ 33 3. Consolidated’s Pree mption Claim ¶ 34 As previously noted, Consolidated arg ues that the trial court erred by

finding that

section 1631 o f the Act did not preempt the pertinent portions of the UCC that conflict with the expressed purpose o f the Act . In p articula r, Consolid ated con

tends tha t the plain

la nguage of the Act sought to enhance protections for buy ers of farm produ cts among the States to eliminate what Congress classified as an obstruction to interstate c ommerce in farm pr oducts. In furtherance of that goal, Consolidated asse rts that Congress expressly pr eempted any

other provision of federal, state, or local law that

conflicted with the enhanced protections of far m purchas ers. ¶ 35 In response, the Ba nk does not dispute Con solidated ’s pree mption con

tentions. Indeed, citing Food Services of America v. Royal Heights, Inc. , 871 P.2d 590, 594 (Wash. 1994), and First Midwest Bank, N.A. , 314 Ill. App. 3d at 257, 73 1 N.E .2d at 841, the Bank acknowledges that by enacting section 1631, Congress intended to preemptstate law as it applied to the fa

rm-prod ucts exception of the UCC. Instead, the Ba nk contends that section 1631 of the Act was not applicable be cause Consolidated was not acting as a buy er in the ordinary course o f busines s b ut , instead, was acting as a creditor. Claiming that section 1631(c)(1) of

the Act does not sufficiently define a buy er in the

ordinar y c ourse of

business, the Bank cites the UCC definition of buy er in the or di na ry c ou rs e o f b us in es s. Sp ec if ic al ly, the Bank relies on the last sentence of section 1–201(b)(9) of the UCC, which excludes “a person that acquires goods in a transfer in bulk or as security for or in total or partial satisfaction of a money

debt.” 810 IL

CS 5/1–201(b)(9) (West 2008). ¶ 36 Setting aside the me rits of the Bank’s creditor argume nt–which we will address momentarily–we

agree with Consolidated that by its plain lan guage and clearly sta ted purpose, section 1631 of the Act preempts any provision of federal, state, or local law that conflic ts with the enhanced protections afforded purchasers of f arm products as expressed therein. ¶ 37 Although we previously stated that the Ge neral Assembly a

pprovedthe codification of section 1631(e) of the Act by adding section 9–320(f) to the UCC, that sec tion of the

UCC

was not a verbatim transcriptionof the Ac t. Ind eed, in a ddition to ( 1) the na

me and ad

dress of the secured party ; (2) the name and address of the debtor; ( 3) the ap

propria te identification number; and (4) a description of the farm products at issue, which includes the amount of farm products, if applicable, the crop y ear, and county

where the farm

productsare produced

or located, section 9–320(f)(1)(A)(ii) requires that a secured party ’s notice also include a “reaso nable

description of the propert y.” As s uch, section 9–320(f) of the UCC places an addedburden on the notice requirement that a secured party must present to a buyer

of farm products to protect its secured interest. More important, this added provision, even t hough it applies to the secure d party , is the type of conf lict that the plain language of section 1631 seeks to p reempt. Thus, we a

gree with Consolidated that section 1631 of the Act pr

eempts the pert inent por tions of the

UCC that co nflicted

with the e

xpressed purpose of

the Act. ¶ 38 In so concluding, we decline to reach the merits of the Bank’s contentions that the trial
court erred by (1) finding that the Bank had not perfected its security intere st as required by section 9–310 (a ) of the UCC; (2) finding that Consolidated was a buy er in the ordinary-9-

course of busine ss as defined

by section 1–201(b)( 9) of the UCC; (3) failing to recognize the Bank’s prior lie

n sta tus ove r Consolidated in contravention of section 9–322(a)(2) of the UCC; and (4) finding that the Bank failed to comply with the notice requirements of section 9–3 20(f), because

those con

tentions a re base d on claim s rooted i n varioussecti ons of th e UCC, which (1 ) in the c ase of the Bank’ s perfe ction cla im, is not re

levant or (2) in the case of the Bank’s remaining claims, conflicts with the protections afforded purchasers of farm productsunder se ction 1631 of the Ac t. ¶ 39 Instead, having concluded that section 1631 of the Act pr

eempts c onflicts withthe UCC,

we will address only the B ank’s contention that section 1631 of the Act d oes not ap ply because Consolidated was acting as a cr editor i nstead of a buy er of farm products in the ordinar y c ourse of

business.

¶ 40 B. The Bank’s Claim That Consolidated Was Acting as a Creditor ¶ 41 We first

note that at the July 2010 hearing on the parties’ respective summary-judgment motions, the Bank conceded that it had not complied with section 1631 of the Act in tha t it failed to identify the counties in which the f arm products–that were subject to its perfected security interest–were produced or located. I n addition, in its brief to this court, the B an k agreed that “Cons olidated

is a grain elevator, and gr

ain elevators do buy

and sell grain in the usual course of business.” ¶ 42 However, the Bank claims that despite its concessions, section 1631 of the Act does not preempt the UCC because Consolidated was not a buy er in the ordinary course of business but, instead, was a creditor by virtue of the fact that it contractually offset $45,266 as a result of the canc ellation o f the 2005 and 2006 g rain con tracts. I n su pport of i ts c laim that Consolidated was not a buyer in the ordinary c ourse of busines s as defi n ed by section 1631(c)(1) of the Ac t, but, instead, a creditor that negated the applicability of section 1631 of the Act, the Bank relies on Royal He ights , a case from the Supreme Court of Washington. However, the Bank’s reliance is misplaced. ¶ 43 In Royal He ights , 871 P.2d a t 592, the i ss ue before the Washingt on Supreme

Court concerned

whether section 1631 of the Act permits “ a commissi on merch ant, who also a cts

as a secured

lender, [to] take its s ecurity interest free of a prior p erfec ted secu

rity interest in the samecollateral.” The commission merchant arg ued that under

section 1 631 of the

Act, “a commission merchant can never be subject to a prior security interest even when acting

as a lender.” Royal He ights , 871 P.2d at 596. In concluding that section 1631 of the Act was not ap plica ble, t he cou rt st ated, in per tinen t part , the f ollo wing: “[A] commission merchant who lends money to the f armer, and

takes a s ecurity

interest in the farm product, and who seeks to retain the net proceeds from the sale of the far m product in repayment of

that loan, is not protected by the *** Act *** and the commission mercha

nt must look t

o state la w to deter

mine the p

riority of the se curity interests in the collateral.” Royal He ights , 871 P.2d at 597. ¶ 44 The c ourt held that although section 1631 of the Act protects commission me rchant s when they are

acting in that capacity f

rom the potential for

double liability, the Act does not-10-

“allow such merchants to become secured lender s and take farm products as collateral free of all preexisting perfected security interests.” Royal He ights , 871 P.2d at 597. ¶ 45 In this case, the record does not show–an d the Bank does not claim–that Consolidated (1) provided

the Beie rmanns a loan, (2) acquire d a secur ed inter est in the Beie rmanns’ farm products
, or (3) sought to retain the proceeds of the sale of the farm pro ducts to sa ti sf y a secured or perf ected security

in terest. Th us, Royal He ights does not offer the Bank any support. ¶ 46 By

its plain terms, the enhanced protections provided under section 1631 of the Act apply strictly to a person who, in his sole capacity as a buyer

of farm products in the ordinary

course of his busi ness, as defined by section 1631(c)(1) of the Act, does not receive proper notic e as required by

section 1631(e) of the Act. I n this regard, the Bank concedes that Consolidated has met thi s strict c riterion . Howeve

r, the B ank atte

mp ts to also classify Consolidat

ed as a creditor by dissecting the method and manner in which Consolidated, as

a purchaser of farm produ ct in the o rdinary course o f busines s, (1) chooses to f inancia lly

accommo date

a purveyor

of farm products and (2) disburses the proceeds fro m th e sale of the farm pro ducts. Such a cumber some and d etailed inspectio n of the f inancia l agre ements betweenbuy ers and p

roducer s of far

m product s is not required by the Act a nd would on

ly

serve to underm

ine its sta ted purpo se, whic h is to avoid imp ediments t o interstate commerce. ¶ 47 Ac co rd in gl y, we reject the Bank ’s argument that section 1631 of the Act was not applica ble because Consolidated was acting as a c reditor instead of a buye

r in the ordinary

course of business. Given the Bank’s concession that it did not comply with the notice require ments of section 1631 of the Act, we further reject the B ank’s argument that the trial
court erred b y ( 1) deny

ing its summa

ry-judg ment moti on and (2) granting summary judgment in Consolidated’s favor.

¶ 48 C. The Trial Court’s Denial of the Bank’s Motion for L eave To File an A mended Count I ¶ 49 The Bank also argues that the trial court erred by denying its motion forleave to

filean amended count I. We disag ree. ¶ 50 Section 2–1005(g) of the Civil Code (735 ILCS 5/2– 1005( g) (West 2008)) provides that “after the entr y of a summary

judgmen t, the cour t shall per mit pleadings tobe amended upon just or reasonable terms.” I

f the amendment wi l l “ ‘further the ends of justice,’ ” the trial
court is required to permit the party to make the amendment. Country MutualInsurance Co.

v. D&M Tile, Inc. , 394 Ill. App. 3d 729, 737 , 916 N .E.2d 606, 612 (2009). In determining whether the trial court abused its discretion in deny ing a motion to amend, a reviewing court
must look at the following four factors: (1) whether the proposed amendment would cure the defective pleading , (2) whe ther othe r partie s would sus tain pre judice or surprise by virtue of the proposed amendment, (3) whether the propo sed amendment is timely, and (4) whe ther previous opportunities to amend the pleading could be identified. ¶ 51 In this case, the Bank sought to amend its complaint by adding two paragraphs that stated (1) in July 2008, the Bank sent Conso lidated a

“Notice of Secur ity I nterest” by c ertifie d mail and (2) at all relevant times, Consolidated was aware

of the B ank’s se cured in

terest. T hese-11-

proposedamendments, however, would not have cured the B ank’s deficient notice in that it did not sta

te that the Bank ha d taken th e adequ ate mea sures to d

escribe the far m product s at issue to include their location by county as required by section 1631 of the Act. Therefore, the proposedamendments would not have rendered summary judgmen t inappro priate in this

case. Accordingly , we conc lude that t he court did not abuse its discretion by de nying def end ant s’ m ot io n fo r le ave to fil e an ame nde d co unt I.

¶ 52 II I. CONCL

USION ¶ 53 For the r

easons st ated, we affirm t he trial c ourt’s jud

gment. ¶ 54 Affirmed.