Overmyer Co. v. Frick Co

In Overmyer Co. v. Frick Co. (1972) 405 U.S. 174, the United States Supreme Court held that confession of judgment laws do not per se violate constitutional due process requirements. The court in Isbell v. County of Sonoma (1978) 21 Cal.3d 61 concluded, however, that Overmyer was not determinative of the issue before it. The court stated: "The Overmyer decision nowhere addresses the issue, crucial to the present case, whether the Ohio statutes established a constitutionally adequate procedure for assuring that a valid waiver of constitutional rights had occurred. In Overmyer the judgment debtor did not attack the adequacy of the record, but instead broadly claimed that an individual could never validly waive all rights to notice and hearing through a confession of judgment agreement. The Overmyer decision went no further than to reject this broad proposition and to hold on the facts before it that D. H. Overmyer Co., a large corporation which entered into a negotiated cognovit agreement in return for valuable consideration, had 'voluntarily, intelligently and knowingly' waived its constitutional rights. "Since it is axiomatic that 'cases are not authority for propositions not considered therein' , we conclude that Overmyer did not resolve that a confession of judgment procedure which requires the entry of judgment without a sufficient showing of a valid waiver is consonant with due process. Overmyer therefore does not conflict with our conclusion that the California confession of judgment procedure is constitutionally infirm." (Isbell v. County of Sonoma, supra, 21 Cal. 3d at pp. 73-74.) In Isbell the court suggested that if the document confessing judgment itself demonstrated a voluntary, knowing and intelligent waiver of due process rights, then entry of judgment would be valid. (Isbell v. County of Sonoma, supra, 21 Cal. 3d at pp. 64-65, 70.) In response to this observation, the Legislature amended section 1132 to allow the entry of judgment by confession if it is filed with a certificate signed by an attorney independently representing the defendant indicating that the attorney has examined the proposed judgment and has advised the defendant concerning the waiver of rights and defenses under the confession of judgment procedure and has advised the defendant to use that procedure. ( 1132, subd. (b).)