Northbrook Bank & Trust Company v. Abbas , 102 N.E.3d 861 ( 2018 )

2018 IL App (1st) 162972FIRST DISTRICT
FIFTH DIVISION
March 30, 2018
No. 1-16-2972
) Appeal from the
NORTHBROOK BANK & TRUST CO. AS SUCCESSOR ) Circuit Court of
IN INTEREST TO FIRST CHICAGO BANK & TRUST, ) Cook County
)
Plaintiff-Appellee, )
)
v. )
) No. 15 L 50452
JOSEPH ABBAS, )
)
Defendant-Appellant, )
)
(and )
) Honorable
Alan L. Freeman, ) Raymond W. Mitchell,
) Judge Presiding.
Defendant). )
PRESIDING JUSTICE REYES delivered the judgment of the court, with opinion.
Justices Hall and Rochford concurred in the judgment and opinion.
OPINION
¶1 Following a bench trial, the circuit court of Cook County entered judgment in favor of
plaintiff, Northbrook Bank & Trust Company as successor in interest to First Chicago Bank &
Trust (plaintiff) on its breach of contract action. 1 In so doing, the circuit court found defendant
Joseph Abbas (defendant) and his codefendant Alan Freeman (Freeman) in breach of a 1.8
1
First Chicago Bank & Trust is not a party to this appeal.
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million dollar loan agreement. 2 On appeal, defendant contends that the trial court erred by 1)
allowing plaintiff to present certain documents not previously disclosed, 2) concluding plaintiff
had standing, and 3) awarding plaintiff attorney fees. For the reasons that follow, we affirm.
¶2 BACKGROUND
¶3 Plaintiff filed its complaint alleging defendant and Freeman were in breach of a loan they
had personally guaranteed and caused plaintiff damages in excess of $1.4 million dollars in
unpaid principal, interest, and fees. Plaintiff further sought attorney fees and costs. The
operative second amended verified complaint alleged that defendant and Freeman had entered
into a term loan agreement with First Chicago Bank & Trust whereby they received $1,880,000.
Defendant and Freeman were required to make monthly interest payments and to repay the loan
in full by September 16, 2015. Germane to this appeal, four mortgages were pledged as
collateral for the loan on certain properties, two of which were located in Illinois, one in
Michigan, and one in Florida. In addition, Freeman signed a pledge agreement in which he
pledged 44,500 shares of Facebook stock as collateral. The pledge agreement provided that
selling these shares without first notifying First Chicago Bank & Trust would result in a breach
of the loan agreement.
¶4 Regarding its standing, plaintiff alleged that subsequent to the loan agreement the
Illinois Department of Financial and Professional Regulation, Division of Banking closed First
Chicago Bank & Trust and appointed the Federal Deposit Insurance Corporation (FDIC) as the
receiver. Thereafter, on July 8, 2011, the FDIC and plaintiff entered into a purchase and
assumption agreement whereby plaintiff became the owner of a substantial portion of the assets
of First Chicago Bank & Trust, including the loan agreement at issue in this case.
2
Defendant Alan Freeman is not a party to this appeal.
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¶5 The operative complaint further alleged the following acts of default occurred. In July
2015, Freeman sold his Facebook shares in violation of the pledge agreement. In addition,
defendant and Freeman failed to make interest payments for July and August 2015 in violation of
the terms of the loan agreement. Then, when the loan matured, defendant and Freeman did not
pay the amounts which were due and owing in full.
¶6 The following documents were attached as exhibits to the operative complaint, 1) the first
page of the purchase and assumption agreement between the FDIC and plaintiff, 2) the loan
agreement, 3) the pledge agreement, and 4) a notice of default.
¶7 In response, defendant filed an unverified answer to the complaint denying he breached
the loan agreement. Thereafter, plaintiff served defendant with interrogatories and a document
production request; however, neither were answered prior to trial.
¶8 After it appeared the parties would not settle, the trial court set the matter for a bench trial
to commence on June 1, 2016. Subsequently, plaintiff filed a motion for summary judgment.
The parties entered into a briefing schedule, but before the hearing on the motion and three
weeks prior to trial, defense counsel withdrew. Despite the trial court’s best efforts to keep the
trial on schedule, it ultimately granted defendant’s emergency motion to continue and reset the
bench trial for August 15, 2016.
¶9 In the meantime, the parties briefed the motion for summary judgment, argument was
heard, and the trial court issued a written memorandum opinion denying the motion for summary
judgment. The trial court found there was a genuine issue of material fact as to whether the
purchase and assumption agreement between the FDIC and plaintiff included the loan at issue.
The trial court expressly observed that the singular page of the purchase and assumption
agreement provided by plaintiff only mentioned that “certain” assets and deposits were being
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assumed by plaintiff and plaintiff did not provide any documentation that conclusively
demonstrated it had assumed defendant’s loan.
¶ 10 Less than a week before trial, defendant filed numerous motions including 1) a motion to
dismiss pursuant to section 2-619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(9)
(West 2014)), 2) a motion to continue the trial, 3) a motion for leave to add an affirmative
defense, 4) a motion in limine to bar plaintiff from introducing any evidence it had not already
produced, and 5) a motion in limine to bar any evidence related to plaintiff’s ownership of the
loan. The trial court denied the motion to dismiss and the motion to continue. The trial court,
however, granted defendant leave to amend the answer to assert the affirmative defense of lack
of standing, but reserved judgment on the motions in limine. The matter then proceeded to trial
where the following testimony was elicited.
¶ 11 Jeff Galus, senior vice president of Wintrust Financial, testified that plaintiff is a
subsidiary of Wintrust Financial and he personally managed the loan at issue in this case. Galus
testified to the terms of the loan agreement as set forth in the complaint and further explained
that First Chicago Bank & Trust originated the loan but was later shut down and the FDIC
became the receiver. Subsequently, plaintiff acquired the loan from the FDIC through a
purchase and assumption agreement in July 2011. In December 2013, the loan was modified
pursuant to a request from Freeman for plaintiff to release the mortgage on one property that was
collateral for the loan agreement in exchange for a $500,000 principal payment. Thereafter, two
new pieces of property (one located in Cook County and the other in Lake County) were
substituted as collateral for the one property previously identified in the loan agreement.
According to Galus, plaintiff was listed as the mortgagee on these mortgages.
¶ 12 In regards to the default on the loan, Galus testified that monthly interest payments were
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made on the loan to plaintiff from July 2011 (when plaintiff acquired the loan) until June 2015.
No payments were made for July and August 2015, nor was the full principal balance paid in full
when the loan matured on September 16, 2015.
¶ 13 Galus further testified regarding the numerous documents related to the loan at issue
which he averred were kept in the ordinary course of business by plaintiff. He further testified
that he had access to and was familiar with the documents. These records included the purchase
and assumption agreement, the schedule of loans, the loan documents, an allonge, and the history
of the transactions involving the loan.
¶ 14 Regarding the purchase and assumption agreement, Galus testified that it was a true and
accurate copy, but was not entirely complete because parts of it were redacted to preserve
confidentiality. Galus also testified that the schedule of loans (which was referenced in the
purchase and assumption agreement) was a true and accurate copy of the document. The
schedule of loans identified the loan at issue in this case as being one of the assets acquired by
plaintiff through the FDIC’s receivership of First Chicago Bank & Trust. In addition, Galus
testified that plaintiff was provided a power of attorney which was granted at the time of the
acquisition of the loan from the FDIC. Galus further testified that in regards to this loan and
pursuant to the power of attorney he executed an allonge on behalf of the FDIC. Galus testified
that the allonge which was provided was a true and accurate copy. While the allonge was not
dated, it was signed by Galus as attorney in fact for the FDIC.
¶ 15 Galus also testified he personally prepared a payoff statement which indicated the
amounts due as of August 15, 2016, included: $1,380,000 in principal; $132,020 in interest
(with a per diem of $306.67); $803.47 in late fees, and $3,807 in other fees associated with the
loan for a total of $1,516,630.47.
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¶ 16 On cross-examination, Galus testified he first became familiar with the loan in December
2013 and admitted he did not participate in the FDIC transaction. Galus further acknowledged
that the allonge was a one page document, which was not attached to the note. Regarding the
allonge, Galus testified he was authorized to sign the allonge on behalf of the FDIC as its
attorney in fact via a power of attorney. Galus, however, did not have a copy of the power of
attorney and did not know the date it was executed or when it expired. Galus further testified he
signed the assignment and allonge in November or December 2015. Galus also testified that the
purchase and assumption agreement does not include the schedule of loans. Galus explained,
however, that it is not the FDIC’s practice to include a schedule of loans with the purchase and
assumption agreement.
¶ 17 On redirect, Galus testified that he personally managed hundreds of loans from other
failed banks. In all those transactions a purchase and assumption agreement was utilized and on
occasion was a schedule of the assumed assets attached.
¶ 18 Next, Freeman testified for the defense that initially his loan was with First Chicago Bank
& Trust. Subsequently it was transferred to plaintiff and he worked directly with Kevin Fraley
(one of plaintiff’s loan managers) and then Galus. Freeman testified he had a conversation with
Fraley wherein Freeman disclosed that he sold some Facebook stock. In response, Fraley
indicated selling the stock was “okay” because there was “so much other collateral.” No
documents, however, were ever signed evidencing this conversation. Freeman also testified that
he made monthly interest payments to plaintiff for four-and-a-half years. The defense then
rested and the trial court took the matter under advisement.
¶ 19 While the trial court was still considering the matter, plaintiff filed a petition for attorney
fees, seeking $160,712.40 in fees and $15,359.26 in costs for a total of $176,071.66 pursuant to a
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fee-shifting provision in the loan agreement. Of these monetary sums being requested, $76,957
in fees and $5000 in costs were incurred during the course of the litigation. The remaining
attorney fees plaintiff sought were incurred prior to litigation and in the four separate
foreclosure actions associated with the loan agreement. Plaintiff attached to its petition, in
pertinent part, 1) detailed time entries related to a) the 2013 modification of the loan agreement,
b) the instant lawsuit, c) the Cook County foreclosure case, d) the Lake County foreclosure case,
e) the Michigan foreclosure case, and f) the Florida foreclosure case and 2) an affidavit of
Edward L. Filer attesting to the hourly rates of those attorneys working on these matters and the
amount of time billed.
¶ 20 After having considered all of the evidence presented by the parties, the trial court
thereafter issued a written memorandum and opinion finding in favor of plaintiff on its breach of
contract claim. The trial court specifically found that plaintiff established there was a valid loan
agreement between defendant, Freeman, and First Chicago Bank & Trust and that defendant and
Freeman defaulted under the terms of the loan by failing to make monthly interest payments and
failing to pay the outstanding balance on the maturity date. 3 The trial court further found that
plaintiff established it was a successor in interest to the loan agreement, having acquired the loan
from the FDIC through the purchase and assumption agreement after First Chicago Bank & Trust
went into receivership. In issuing its ruling, the trial court also indicated that defendant’s motion
in limine to bar evidence outside the trial exhibit list provided in June 2016 was denied.
¶ 21 The trial court further granted plaintiff’s petition for attorney fees finding the language of
the loan agreement permitting attorney fees and costs as “broad.” Furthermore, trial court noted
3
The trial court further found that Freeman testified credibly regarding plaintiff’s oral
representations about the sale of his Facebook stock and accordingly did not find it was an act of
default.
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the petition and the supporting affidavit and invoices, setting forth the attorney fees and costs
were reasonable and recoverable. This appeal followed.
¶ 22 Mootness
¶ 23 At oral argument, when questioned regarding the status of the related foreclosure matters,
plaintiff’s counsel informed the court that all of the amounts due and owning had been satisfied,
including attorney fees and postjudgment interest and the foreclosure suits resolved. As a result
of this revelation, we ordered the parties to file supplemental briefs addressing the question of
whether the matter before the court was moot. Accordingly, we first turn to address whether the
matter is moot in light of the full satisfaction of the judgment.
¶ 24 “This court will not review cases merely to establish a precedent or guide future
litigation.” Madison Park Bank v. Zagel, 91 Ill.2d 231, 235 (1982). The fact that a case is
pending on appeal when events render an issue moot does not alter this conclusion. Dixon v.
Chicago and North Western Transportation Co., 151 Ill. 2d 108, 116 (1992); Bluthardt v.
Breslin, 74 Ill. 2d 246, 250 (1979). An issue is moot if no actual controversy exists or where
events transpire which make it impossible for the court to grant effectual relief. Dixon, 151 Ill.
2d at 116. Nonetheless, when an intervening event occurs making it impossible for a reviewing
court to grant relief to any party, the case is rendered moot because a ruling on the issue cannot
have any practical effect on the controversy. In re Tekela, 202 Ill. 2d 282, 292-93 (2002). In this
instance, we ordered the parties to submit with their supplemental briefs regarding the mootness
issue documentation they believed to be relevant. We observe that a reviewing court can take
judicial notice of such events or facts which, while not appearing in the record, disclose that an
actual controversy no longer exists between the adverse parties. Dixon, 151 Ill. 2d at 116-17.
¶ 25 Here, the parties do not dispute that while the appeal was pending the judgment at issue
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was fully satisfied and the documents produced by the parties support this contention. In Illinois,
“it is well established that the payment or satisfaction of a money judgment by a judgment debtor
does not bar the prosecution of *** an appeal by such judgment debtor.” Pinkstaff v.
Pennsylvania R.R. Co., 31 Ill. 2d 518, 523 (1964); In re Marriage of Sobieski, 2013 IL App (2d)
111146, ¶ 28; Briarcliffe West Townhouse Owners Ass’n v. Wiseman Construction Co., 118 Ill.
App. 3d 163, 173 (1983) (“The payment of a judgment does not preclude that party from
appealing from the judgment.”). When a judgment has been voluntarily paid or its benefits
accepted, the basis for the appeal is waived. Mirar Development, Inc. v. Kroner, 308 Ill. App. 3d
483, 486 (1999) (citing County of Cook v. Malysa, 39 Ill. 2d 376, 379 (1968) (“[T]he general rule
in civil cases [is] that when a judgment has been voluntarily paid or its benefits accepted the
question becomes moot.”). Thus, the question here is, under these particular set of facts, is
whether the satisfaction of the judgment was compulsory or voluntary.
¶ 26 Plaintiff contends that the payment of the judgment was voluntary, and therefore the
matter is moot. According to plaintiff, no appeal bond was posted by defendant and upon
satisfaction of the judgment the four mortgage foreclosure cases referenced were dismissed with
prejudice, the mortgages that were pledged as collateral were released, and the recorded
judgment was released. Plaintiff asserts that had the payment of the judgment not been
voluntary, it would not have released the mortgages that were collateral for the loan agreement.
Plaintiff maintains that the release of its security interest in the mortgages should be considered a
“supervening event” which moots the appeal as defendant and Freeman received and accepted
the benefit of those mortgages being released.
¶ 27 In response, defendant argues that the satisfaction of the judgment was compulsory where
defendant was faced with a judgment order, collection proceedings, and a wage garnishment.
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Defendant further asserts that he was obligated to pay the judgment where statutory interest
would continue to accrue unless it was paid in full. 4
¶ 28 We conclude the satisfaction of the judgment in this case was compulsory. After the
judgment was entered, plaintiff commenced collection proceedings, which included citations to
discover assets and a request for defendant’s wages to be garnished. Plaintiff even filed a motion
to compel citation examination and production before the circuit court. Once the judgment was
paid in July 2017, the citation proceedings were dismissed. Under these circumstances, it is
evident that the payment of the judgment was compulsory in nature and thus the payment of the
judgment does not render this appeal moot. See Sobieski, 2013 IL App (2d) 111146, ¶ 33
(appeal not moot where the husband made payments pursuant to a court order and the wife could
have sought an execution of the judgment); Long v. Tranka, 146 Ill. App. 3d 428, 431 (1986)
(appeal not moot where the defendant paid the judgment in full under threat of court order).
¶ 29 Furthermore, we observe that the supplemental briefing did not adequately indicate who
actually paid the judgment or, if the judgment was paid by both defendant and Freeman, or how
much each party contributed. Where, as here, defendant and Freeman are jointly and severably
liable for a judgment, a party who pays more than their share of the joint indebtedness can
maintain an action for contribution from his or her codefendant. Ruggio v. Ditkowsky, 147 Ill.
App. 3d 638, 642 (1986). Thus, even if we were to find that this appeal is moot, a finding which
we do not render, we could not dismiss this appeal and leave in effect a potentially erroneous
order which might adversely affect the rights of the parties. See Midwest Bank & Trust Co. v.
Roderick, 132 Ill. App. 3d 463, 466-67 (1985). Accordingly, we now turn to examine the merits
4
We observe that defendant raises new arguments in his supplemental response brief
regarding the propriety of postjudgment attorney fees paid to plaintiff. As this issue was not
raised in his opening brief, we decline to address it and consider the issue to be forfeited. See Ill.
S. Ct. R. 341(h)(7) (eff. July 1, 2017).
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of this appeal.
¶ 30 ANALYSIS
¶ 31 On appeal, defendant contends that the trial court erred by 1) allowing plaintiff to present
certain documents not previously disclosed, 2) concluding plaintiff had standing, and 3)
awarding plaintiff attorney fees. Prior to addressing defendant’s claims, we acknowledge that
both parties asserted that portions of the other party’s brief should be stricken for varied reasons.
We, however, decline to strike any portion of either party’s brief. We now turn to consider
defendant’s arguments.
¶ 32 Undue Surprise
¶ 33 Defendant first contends that the trial court should not have allowed plaintiff to present
certain documents demonstrating the transfer of ownership by the FDIC to plaintiff during the
trial because these documents were not previously disclosed and caused him undue surprise.
¶ 34 We initially note that, in violation of Illinois Supreme Court Rule 341(h)(7) (eff. July 1,
2017), defendant does not set forth the applicable standard of review for his unique claim of
error. We observe that defendant is not alleging that the trial court abused its discretion when it
denied his motion in limine regarding these documents, nor is he arguing that these documents
were inadmissible. Instead, he frames his claim as a type of discovery violation, yet at the same
time acknowledges that he did not engage in discovery so the Illinois Supreme Court Rules do
not apply. “A reviewing court is entitled to have the issues clearly defined and supported by
pertinent authority and cohesive arguments; it is not merely a repository into which an appellant
may ‘dump the burden of argument and research,’ nor is it the obligation of this court to act as an
advocate or seek error in the record.” U.S. Bank v. Lindsey, 397 Ill. App. 3d 437, 459 (2009).
Consequently, we are not obliged to make his arguments for him; therefore, whether we consider
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his claim of error to be one that is premised on a discovery violation or the improper admission
of evidence, the standard of review is the same. Accordingly, we turn to review defendant’s
claims for an abuse of discretion. See In re J.D., 332 Ill. App. 3d 395, 403 (2002); Kimble v.
Earle M. Jorgenson Co., 358 Ill. App. 3d 400, 408 (2005).
¶ 35 The goal of the discovery process in Illinois is full disclosure. Payne v. Hall, 2013 IL
App (1st) 113519, ¶ 13. To that end, “[t]he objectives of pretrial discovery are to enhance the
truth-seeking process, to enable attorneys to better prepare for trial, to eliminate surprise[,] and to
promote an expeditious and final determination of controversies in accordance with the
substantive rights of the parties.” D.C. v. S.A., 178 Ill. 2d 551, 561 (1997).
¶ 36 Defendant asserts that the late tendering of these documents prejudiced him because it
provided him with no time to prepare a defense to the documents. Defendant, however, chose
not to participate in pretrial discovery, placing the entire burden on plaintiff, and now complains
that his failure to do so has lead to an unjust result. In addition, our review of the record reveals
that defendant was not surprised when plaintiff produced the documents evidencing its
ownership of the loan agreement for use during the August trial. In fact, defendant was prepared
to challenge plaintiff’s standing at trial. The record reflects that defendant was fully aware that
plaintiff would be presenting such documentation where, just prior to the August trial, the trial
court denied plaintiff’s motion for summary judgment finding there was a genuine issue of
material fact as to plaintiff’s standing. Specifically, the trial court observed that the single page
of the purchase and assumption agreement was not convincing evidence. Thus, it could not have
been a surprise when plaintiff produced the complete (albeit redacted) purchase and assumption
agreement for the August trial. Second, a week before the August trial, defendant filed a motion
requesting leave to amend its answer to include the affirmative defense of lack of standing
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(which the trial court subsequently granted on the day trial commenced). Therefore, defendant
could not have been caught unawares when plaintiff produced documents evidencing its standing
thereafter.
¶ 37 We find the cases on which defendant relies to be inapposite. Defendant asserts that U.S.
Bank, N.A. v. Kosterman, 2015 IL App (1st) 133627, ¶ 13, supports his position because it “held
that although the plaintiff claimed the records were too numerous to make them available to
defense counsel, the defendants were entitled to at least some access to the records, and not to
untimely disclose documents that would hinder the defendants’ rebuttal opportunity.”
Kosterman, however, is wholly distinguishable from the case at bar. First, unlike defendant here,
the Kosterman defendants raised the affirmative defense of lack of standing in their answer to the
complaint. Id. ¶ 8. Second, the parties engaged in formal discovery while the plaintiff’s motion
for summary judgment was being briefed, which included document and deposition requests. Id.
¶¶ 12-14. Third, the Kosterman plaintiff failed to comply with the defendants’ discovery
requests asserting that the documents it needed to produce were too voluminous and did not
provide the defendants with sufficient access to the documents in preparing their response to the
plaintiff’s motion for summary judgment. Id. ¶ 13. Fourth, the Kosterman plaintiff based its
failure to participate in discovery on the erroneous ruling of the trial court striking the
defendants’ affirmative defense. Id. ¶ 15. Accordingly, it was under these circumstances that
the reviewing court concluded that the defendants “never even had an opportunity to explore
their defenses” and ultimately reversed the trial court’s dismissal of their affirmative defenses.
Id. ¶¶ 15, 20.
¶ 38 Defendant also relies on Fortae v. Holland, 334 Ill. App. 3d 705 (2002). In Fortae,
although the defendants timely made the disclosure of their opinion witness, within a week of the
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trial and after the disclosure date passed, the defendants filed supplemental discovery notifying
the plaintiff that their opinion witness would be testifying to new material facts. Id. at 712. The
trial court denied the defendants’ request, finding it to be untimely. Id. The reviewing court
affirmed. Id. at 713. Unlike the Fortae defendants, in the case at bar plaintiff did not seek to
disclose new expert opinions on the day of trial. Consequently, Fortae is inapposite.
¶ 39 We conclude that plaintiff’s supplementation of its trial exhibits to include documents
that reflected its ownership of the loan did not prejudice defendant where he was the one who
placed plaintiff’s standing at issue and then failed to request discovery. Therefore, the trial court
was within its discretion when it allowed plaintiff to utilize the documents during the trial.
Defendant, however, does contest the admissibility of these documents, which we next address.
¶ 40 The Manifest Weight of the Evidence
¶ 41 Defendant challenges the trial court’s judgment finding in favor of plaintiff on the breach
of contract action. The trial court’s findings are entitled to great weight and will not be reversed
unless they are against the manifest weight of the evidence. Voutiritsas v. Intercounty Title Co.
of Illinois, 279 Ill. App. 3d 170, 183 (1996); Resurgence Capital, LLC v. Kuznar, 2017 IL App
(1st) 161853, ¶ 35. “A finding is against the manifest weight of the evidence only when an
opposite conclusion is apparent or when the finding appears to be unreasonable, arbitrary, or not
based on the evidence.” Amcore Bank, N.A. v. Hahnaman-Albrecht, Inc., 326 Ill. App. 3d 126,
135 (2001).
¶ 42 In Illinois, a breach of contract claim consists of: 1) the existence of a valid and
enforceable contract, 2) breach of the contract by the defendant, 3) performance by the plaintiff,
and 4) resulting injury to the plaintiff. Lindy Lu LLC v. Illinois Central R.R. Co., 2013 IL App
(3d) 120337, ¶ 21.
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¶ 43 Here, defendant does not argue that the loan agreement was not valid and enforceable, or
that he did not breach the contract, or even that plaintiff did not perform. Instead, defendant
solely maintains that the trial court’s ruling was against the manifest weight of the evidence
where the evidence did not demonstrate that plaintiff was the rightful owner of the loan. For the
reasons that follow, we disagree and conclude the trial court’s finding in regard to plaintiff’s
standing was not against the manifest weight of the evidence.
¶ 44 “The doctrine of standing is designed to preclude persons who have no interest in a
controversy from bringing suit” and “assures that issues are raised only by those parties with a
real interest in the outcome of the controversy.” Glisson v. City of Marion, 188 Ill. 2d 211, 221
(1999). “[S]tanding requires some injury in fact to a legally cognizable interest.” Id. Because
standing is an affirmative defense, “it is the defendant’s burden to prove that the plaintiff does
not have standing.” (Emphasis in original.) Parkway Bank v. Korzen, 2013 IL App (1st)
130380, ¶ 24. In other words, “[i]t is not the plaintiff’s burden to prove it does have standing.”
Id.¶ 45 Defendant does not raise an argument as to how plaintiff does not have standing in this
case. Instead, defendant attacks the admissibility of the documents plaintiff introduced at trial
that evidenced its ownership of the loan. Defendant first argues that plaintiff failed to provide an
adequate foundation for the following business records: (1) the purchase and assumption
agreement; (2) the schedule of loans; (3) the loan agreement; (4) the allonge; and (5) the loan
transaction history (collectively loan records). The determination that records are admissible as
business records rests within the sound discretion of the circuit court. In re Estate of Weiland,
338 Ill. App. 3d 585, 600 (2003). Thus, the admission of business records is reviewed for an
abuse of discretion. Bank of America, N.A. v. Land, 2013 IL App (5th) 120283, ¶ 13. An abuse
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of discretion occurs when the ruling is arbitrary, fanciful, or unreasonable, or where there is an
application of impermissible legal criteria. Kimble, 358 Ill. App. 3d at 408.
¶ 46 Business Records
¶ 47 To admit business records into evidence as an exception to the general rule excluding
hearsay, the proponent must lay a proper foundation by demonstrating that the records were
“made (1) in the regular course of business, and (2) at or near the time of the event or
occurrence.” Gulino v. Economy Fire & Casualty Co., 2012 IL App (1st) 102429, ¶ 27; Ill. S.
Ct. R. 236(a) (eff. Aug. 1, 1992). Similarly, Illinois Rule of Evidence 803(6) (eff. Jan. 1, 2011)
provides for the admission of “records of regularly conducted activity” where the records consist
of:
“A memorandum, report, record, or data compilation, in any form, of acts [or] events ***
made at or near the time by, or from information transmitted by, a person with
knowledge, if kept in the course of a regularly conducted business activity, and if it was
the regular practice of that business activity to make the memorandum, report, record or
data compilation, all as shown by the testimony of the custodian or other qualified
witness ***.”
¶ 48 “The theory upon which entries made in the regular course of business are admissible as
an exception to the hearsay rule is that ‘since their purpose is to aid in the proper transaction of
the business and they are useless for that purpose unless accurate, the motive for following a
routine of accuracy is great and the motive to falsify nonexistent.’ ” Kimble, 358 Ill. App. 3d at
414 (quoting Michael H. Graham, Cleary & Graham’s Handbook of Illinois Evidence § 803.10,
at 817 (7th ed. 1999)).
¶ 49 In the context of computer-generated records, it must be established that the equipment
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used is the industry standard, the entries were made in the regular course of business, at or near
the time of the transaction, and the sources of information, method and time of preparation
indicate their trustworthiness and justify their admission. Riley v. Jones Brothers Construction
Co., 198 Ill. App. 3d 822, 829 (1990).
¶ 50 In this case, defendant mainly challenges Galus’ personal knowledge of the documents
specifically those generated prior to his management of the loan (i.e. the purchase and
assumption agreement, the schedule of loans, and the loan agreement). Galus’ testimony
established that he personally managed the loan on behalf of plaintiff. Galus further testified that
the loan records at issue were kept in the ordinary course of business by the plaintiff and, as the
manager of the loan, he had access to and was familiar with those records. See Weiland, 338 Ill.
App. 3d at 600 (“A sufficient foundation for admitting records may be established through
testimony of the custodian of records or another person familiar with the business and its mode
of operation.”). Lastly, Galus testified the loan records were true and accurate copies, although
he did indicate that portions of the purchase and assumption agreement were redacted for reasons
of confidentiality. While defendant maintains that Galus was not party to the negotiations with
the FDIC or present when certain of the loan records were initially created, there is no
foundational requirement that he be familiar with the records before litigation arose or have
personally made the entries into the computer system. US Bank, Nat. Ass’n v. Avdic, 2014 IL
App (1st) 121759, ¶ 29. Indeed the lack of personal knowledge by the maker affects the weight
afforded the evidence, but not its admissibility. Weiland, 338 Ill. App. 3d at 601. According to
Rule 236, it is the business record itself, not the testimony of a witness who makes reference to
the record, which is admissible. Champaign Nat. Bank v. Babcock, 273 Ill. App. 3d 292, 298
(1995). We therefore conclude this testimony was sufficient to establish he had personal
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knowledge of the documents at issue in this case. See Avdic, 2014 IL App (1st) 121759, ¶¶ 26­
27 (finding the affiant had the requisite personal knowledge to establish the foundation for
certain loan documents).
¶ 51 Defendant further argues that plaintiff was unable to properly authenticate the loan
transaction history where Galus admitted he did not have knowledge of the process by which it
was generated. Our review of the record reveals that Galus’ testimony satisfied the foundational
requirements for the admission of these computer generated records. Galus did not testify that he
was without knowledge of the process; he testified that the computer system was maintained by
Wintrust Technology Services and the loan payments were inputted by the loan operations
department. While he testified he did not personally input the data into the computer, as
discussed above, such testimony is not necessary to establish that a document is a business
record. See Champaign Nat. Bank, 273 Ill. App. 3d at 298. Accordingly, we conclude the loan
records were properly admitted as business records.
¶ 52 The Allonge
¶ 53 Defendant next argues that the trial evidence did not establish plaintiff was the rightful
owner of the loan agreement due to alleged deficiencies in the allonge. According to defendant,
the allonge is defective because it: (1) was created and produced after the lawsuit was initially
filed; (2) is not signed, dated, or witnessed; and (3) is not attached to the original note or any
other document. Defendant further asserts that plaintiff failed to produce Galus’ power of
attorney that vested him with the authority to sign the allonge on the FDIC’s behalf.
¶ 54 In response, plaintiff contends that any argument related to the allonge is a red herring
because an allonge is not necessary to prove ownership of the loan. Plaintiff maintains that its
ownership is evidenced via the purchase and assumption agreement whereby it became the
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owner of substantially all of the assets of First Chicago Bank & Trust. Plaintiff further asserts
that, regardless, Galus had the authority to sign the allonge through a power of attorney. Galus
testified he reviewed the power of attorney, which authorized him to sign on behalf of the FDIC
as the receiver for First Chicago Bank & Trust as its attorney in fact.
¶ 55 In reply, defendant argues that standing must exist when the suit is filed, citing Deutsche
Bank Nat’l Trust Co. v. Gilbert, 2012 IL App (2d) 120164, and U.S. Bank Trust Nat’l Ass’n for
Queen’s Park Oval Asset Holding Trust v. Lopez, 2017 IL App (2d) 160967. Defendant
maintains that, pursuant to Galus’ testimony, the allonge was created after the lawsuit was
initiated, and thus plaintiff did not have standing when it commenced the lawsuit.
¶ 56 We find the cases cited by defendant to be inapposite. First, Gilbert and Lopez pertained
to mortgage foreclosure causes of action, which are governed by the Mortgage Foreclosure Law
(Foreclosure Law) (735 ILCS 5/15-1101 et seq. (West 2014)). While the Foreclosure Law
includes a provision regarding the pleading requirements for standing (see 735 ILCS 5/15­
1504(a)(3)(N) (West 2014)), this matter, in contrast, was commenced as a breach of contract
action and is not governed by any such statutory pleading requirements. Second, in Gilbert and
Lopez, the defendants presented documentary evidence that the note and mortgage were assigned
to the plaintiff-mortgagee after the lawsuit commenced. See Gilbert, 2012 IL App (2d) 120164,
¶ 17; Lopez, 2017 IL App (2d) 160967, ¶ 20. These matters did not involve ownership via a
purchase and assumption agreement, which is the issue in the case at bar.
¶ 57 While Galus did admit that the allonge was created in late 2015 after the lawsuit was
commenced, the other evidence presented by plaintiff established it owned the loan prior to the
commencement of the lawsuit. Thus, it is inconsequential whether or not the allonge was
properly admitted into evidence by the trial court. Defendant here raises the issue of lack of
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standing as an affirmative defense. As such, it was defendant’s burden to prove plaintiff lacked
standing. Parkway Bank, 2013 IL App (1st) 130380, ¶ 24.
¶ 58 Our review of the record reveals that defendant failed to present a prima facie case that
plaintiff lacked standing at the time it filed suit. Unlike the defendant in Gilbert, defendant did
not demonstrate through any evidence that plaintiff did not have an interest in the loan prior to
commencing the lawsuit. See cf. Gilbert, 2012 IL App (2d) 120164, ¶ 21. Indeed, plaintiff
demonstrated that it became the owner of the loan through the purchase and assumption
agreement. The schedule of the loans transferred from First Chicago Bank & Trust to plaintiff
via the FDIC was presented at trial and identified the loan at issue as one of the loans being
transferred to plaintiff. See 810 ILCS 5/203(a) (West 2014) (An instrument is transferred by
delivery of the instrument by a person other than its issuer for the purpose of giving to the person
receiving delivery the right to enforce the instrument.). Furthermore, the evidence established
that plaintiff began managing the loan in 2011 and that it subsequently modified the loan in 2013
to change the collateral for the loan. In order to modify the loan, Freeman testified that he made
a $500,000 principal payment to plaintiff. He further testified that he made payments according
to the loan documents to plaintiff until the date of default. It was defendant’s burden to prove
plaintiff lacked standing, and defendant failed to produce any evidence in support of this
affirmative defense. See Parkway Bank, 2013 IL App (1st) 130380, ¶ 24. Accordingly, we
conclude that the trial court’s finding that plaintiff had standing to bring the lawsuit was not
against the manifest weight of the evidence.
¶ 59 Attorney Fees
¶ 60 Defendant maintains that the trial court abused its discretion and the attorney fee award
should be vacated where 1) plaintiff recovered attorney fees and costs from the loan modification
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and unrelated pending cases in other jurisdictions and 2) the fee amounts were unreasonable.
¶ 61 We first address our standard of review. Generally, a trial court has broad discretion to
award attorney fees and its decision will not be disturbed on appeal absent an abuse of that
discretion. Forest Preserve District of Cook County v. Continental Community Bank & Trust
Co., 2017 IL App (1st) 170680, ¶ 32. Yet, in cases in which a party contests the trial court’s
authority to award attorney fees under the terms of a contract, our standard of review is twofold.
Peleton, Inc. v. McGivern’s Inc., 375 Ill. App. 3d 222, 225 (2007). First, to the extent that the
trial court interpreted the terms of the contract, our review is de novo. Work Zone Safety, Inc. v.
Crest Hill Land Development, L.L.C., 2015 IL App (1st) 140088, ¶ 28. Second, where the trial
court applied the terms of the contract to the facts, our review is based on an abuse of discretion
standard. Forest Preserve District of Cook County, 2017 IL App (1st) 170680, ¶ 32. Defendant
also challenges whether the trial court correctly ascertained that the attorney fee provision in the
loan agreement included certain specific attorney fees, thus we examine the language of the loan
agreement de novo.
¶ 62 “[O]ur supreme court has long recognized, Illinois follows the ‘American rule’ which
prohibits prevailing parties from recovering their attorney fees from the losing party absent an
express statutory or contractual provision.” Id. ¶ 31. Although the parties to a contract may alter
this rule, such contract provisions regarding attorney fees should be strictly construed and
enforced at the discretion of the trial court. Powers v. Rockford Stop-N-Go, Inc., 326 Ill. App. 3d
511, 515 (2001). The primary goal of contract interpretation is to give effect to the intent of the
parties, as shown by the language in the contract. Lease Management Equipment Corp. v. DFO
Partnership, 392 Ill. App. 3d 678, 685 (2009). In determining the intent of the parties, a court
must consider the document as a whole and not focus on isolated portions. Premier Title Co. v.
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Donahue, 328 Ill. App. 3d 161, 164 (2002). If the language of a contract is clear and
unambiguous, the intent of the parties must be determined solely from the language of the
contract itself. Virginia Surety Co. v. Northern Insurance Co. of New York, 224 Ill. 2d 550, 556
(2007). That language should be given its plain and ordinary meaning, and the contract enforced
as written. Id.¶ 63 Here, the loan agreement contained the following fee-shifting provision:
“Attorneys’ Fees. Each Borrower shall reimburse the Bank for any reasonable
costs and attorneys’ fees incurred by the Bank in connection with the enforcement or
preservation of any rights or remedies under this Agreement and any other documents
executed in connection with this Agreement, and in connection with any amendment,
waiver, ‘workout’ or restructuring under this Agreement. In the event of a lawsuit, the
prevailing party is entitled to recover costs and reasonable attorneys’ fees incurred in
connection with the lawsuit, as determined by the court or arbitrator. *** To the extent
permitted by law, as used in this paragraph, ‘attorneys’ fees’ includes the allocated costs
of the Bank’s in-house counsel, and ‘costs’ shall include consultants and experts.”
In addition, the loan agreement further contains an “Expenses” provision (section 2.2) that
references the payment of attorney fees:
“Expenses. Each Borrower agrees to pay all reasonable costs and expenses
incurred by the Bank in connection with administering the Loan after the funding date.
Such costs and expenses include, but are not limited to, charges for title insurance,
recording and escrow charges, appraisal fees, fees for environmental services, reasonable
attorneys’ fees and any other reasonable fees and costs for services, regardless of whether
such services are furnished by the Bank’s employees or by independent contractors.”
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¶ 64 We are required to strictly construe a contractual provision for attorney fees. Bright
Horizons Children’s Centers, LLC v. Riverway Midwest II, LLC, 403 Ill. App. 3d 234, 254-55
(2010). “That is, we construe the fee-shifting provision ‘to mean nothing more—but also
nothing less—than the letter of the text.’ ” Id. (quoting Erlenbush v. Largent, 353 Ill. App. 3d
949, 952 (2004)).
¶ 65 Defendant first argues that the trial court improperly construed the fee-shifting provision
to include fees generated from the loan modification that occurred in 2013. We disagree. The
fee-shifting provision provides that each borrower “shall” reimburse plaintiff for any reasonable
attorneys fees incurred regarding “any other documents executed in connection with this
Agreement, and in connection with any amendment, waiver, ‘workout’ or restructuring under
this Agreement.” The record demonstrates that in 2013 Freeman wanted to sell certain
properties that had been designated as collateral for the loan agreement. Plaintiff agreed to
release its interest in the properties provided that Freeman make a $500,000 principal payment
on the loan and also substitute different properties as collateral. Freeman did so, and new
mortgages, which expressly referenced the loan agreement, were drafted, executed, and recorded.
The billable hours generated for this loan modification were included in the fee petition
presented to the trial court. These actions clearly fall within the “workout” language of the fee-
shifting provision. Moreover, the fee-shifting provision includes a definition of “attorneys’ fees”
which “includes the allocated costs of the Bank’s in-house counsel,” the individual who would
likely be responsible for modifying the loan.
¶ 66 Defendant next asserts that the trial court erred when it determined that the fee-shifting
provision also includes the attorney fees and costs of the foreclosure litigation in Cook County,
Lake County, Michigan, and Florida. Relying on Bank of America v. WS Management, Inc.,
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2015 IL App (1st) 132551, defendant asserts that the trial court erred when it allowed plaintiff to
recover fees in other proceedings with claims that are not identical to the claims in the present
case.
¶ 67 Defendant’s interpretation of WS Management, Inc. is misguided. Defendant specifically
claims that the appellate court vacated and remanded the trial court’s determination regarding the
award of attorney fees in part because “the creditor was attempting to seek fees in a prior
turnover proceeding where the issues decided were not identical to the creditor’s claims in the
subsequent collection action.” In fact, the reviewing court vacated and remanded, not because
the attorney fee judgment was unenforceable, but because the trial court’s ruling itself was
deficient. Id. ¶ 123. The reviewing court thus “decline[d] to speculate how broad the reach of
the Kansas judgment and loan documents [were] without some explanation from the trial court.”
Id. The reviewing court also identified the mistakes in the proceedings below, including the
failure to conduct an evidentiary hearing on the reasonableness of the fees. Id. ¶ 127. The
reviewing court further observed that the trial court’s order awarding the plaintiff attorney fees
was also deficient because it gave no indication as to the basis for awarding fees or whether it
considered the many factors at work in deciding whether the attorney fee award was reasonable.
Id. ¶ 128. Thus, the reviewing court vacated the attorney fee award and remanded for further
proceedings for the trial court to (1) conduct an evidentiary hearing and (2) explain its basis for
awarding attorney fees. Id. In contrast to defendant’s claims, the trial court’s order in WS
Management, Inc. was not vacated and remanded due to the trial court awarding attorney fees in
other proceedings with claims that were not identical to the claims in the present case.
¶ 68 In this case, the language of the fee-shifting provision provides that, “Each Borrower
shall reimburse the Bank for any reasonable costs and attorneys’ fees incurred by the Bank in
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connection with the enforcement or preservation of any rights or remedies under this Agreement
and any other documents executed in connection with this Agreement, and in connection with
any amendment, waiver, ‘workout’ or restructuring under this Agreement.” Here, plaintiff
sought fees and costs associated with four separate foreclosure lawsuits, which fall squarely
under this provision as it allows for the reimbursement of any reasonable attorney fees incurred
by plaintiff as it applies to the foreclosure actions brought under the loan agreement.
¶ 69 Like the trial court, we recognize that the language of the attorney fee provision is broad.
At oral argument, defendant maintained that the broad reading of this provision was in error, as
fee-shifting provisions are to be strictly construed. See Bright Horizons Children’s Centers,
LLC, 403 Ill. App. 3d at 254-55. We, however, are not broadly construing this provision; it is the
language of the provision itself (as drafted by the parties) that is broad. Our goal is to give effect
to the intent of the parties, as demonstrated by the language in the contract. Lease Management
Equipment Corp., 392 Ill. App. 3d at 685. In this instance, the “letter of the text” reveals that the
parties’ incorporated broad language (such as the use of the word “any”) into the attorney fee
provision and thus clearly intended for defendant to reimburse plaintiff for “any” reasonable fees
incurred in connection with the enforcement or preservation of any rights or remedies under the
loan agreement. Accordingly, we conclude that the fee-shifting provision provides for recovery
of the attorney fees and costs associated with the four other foreclosure lawsuits.
¶ 70 In his reply, defendant maintains that if he is found to owe attorney fees associated with
the recovery of the collateral, then he is only jointly and severally liable for those fees associated
with the Michigan property. According to defendant, the Michigan property was the only
collateral that was part of the loan agreement at the time he signed it. Defendant asserts he was
not party to any agreement modifying the loan to include the other three properties as collateral
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and thus is not liable for the attorney fees associated with those properties.
¶ 71 What defendant fails to acknowledge is that the loan agreement provides that each
borrower shall reimburse plaintiff for any reasonable costs and attorney fees incurred by plaintiff
in connection with the enforcement or preservation of any rights or remedies under “any other
documents executed in connection with this Agreement, and in connection with any amendment
*** or restructuring under this Agreement.” (Emphasis added.) The collateral with which
defendant takes issue was substituted for the original collateral. This substitution can be
considered to be an “amendment” or “restructuring” of the agreement under the fee-shifting
provision. In addition, although the loan agreement itself does not account for two of the
properties secured as collateral, the mortgages on those properties do include references to the
loan agreement and indicate they are collateral for the loan agreement. Accordingly, we
conclude the plain language of the fee-shifting provision of this specific loan agreement includes
the attorney fees associated with these other mortgages not listed in the loan agreement itself.
See Virginia Surety Co., 224 Ill. 2d at 556.
¶ 72 Defendant next asserts that the trial court abused its discretion because the attorney fees
and costs related to this litigation were unreasonable where 1) the petition is “vague and
conclusory,” 2) the petition did not set forth in sufficient detail the fees charged, 3) the fees for
each of the five cases were “blended together,” and 4) plaintiff’s bill could have been markedly
lower had it provided the proper documentation regarding its standing at the onset of the
litigation.
¶ 73 The trial court may award only reasonable fees, which consist of “reasonable charges for
reasonable services.” McHenry Savings Bank v. Autoworks of Wauconda, Inc., 399 Ill. App. 3d
104, 113 (2010). “When assessing the reasonableness of fees, a trial court may consider a
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variety of factors, including the nature of the case, the case’s novelty and difficulty level, the
skill and standing of the attorney, the degree of responsibility required, the usual and customary
charges for similar work, and the connection between the litigation and the fees charged.”
Richardson v. Haddon, 375 Ill. App. 3d 312, 314-15 (2007). The trial court has broad
discretionary powers in awarding attorney fees, and we will not reverse absent an abuse of
discretion. Id. at 314.
¶ 74 Here, plaintiff sought attorney fees it incurred for investigating the loan and modifying
the loan agreement, litigating the present matter, and for the four mortgage foreclosure cases
which involved the collateral for the loan agreement. This amount totaled $176,071.66. In
support of its fee petition, plaintiff submitted the affidavit of Flier, plaintiff’s lead counsel, set
forth the fees charged by him and the other attorneys who worked on this case. Flier indicated
he charged between $415 and $475 per hour and that the other attorneys who handled the matter
charged between $270 and $475 per hour. See First Midwest Bank, N.A. v. Sparks, 289 Ill. App.
3d 252, 263 (1997). Flier set forth the qualifications of those attorneys and indicated that the
more experience an attorney had the higher his or her hourly rate was. See J.B. Esker & Sons v.
Cle-Pa’s Partnership, 325 Ill App. 3d 276, 283 (2001). A review of the fee petition reveals that
it specified the services performed, the attorney who performed the services, the time expended,
and the hourly rate charged. See Kroot v. Chan, 2017 IL App (1st) 162315, ¶ 37. It is evident
from the affidavit, as well as the overall record in this case, that the matter was complex; it
involved a commercial dispute regarding a 1.8 million dollar loan, numerous mortgages that
served as collateral for that loan, and an unconventional “pledge agreement” regarding
Freeman’s Facebook stock. Our review of the petition thus reveals that the petition was neither
vague nor conclusory and we refute defendant’s assertion that it did not set forth the names of
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those who worked on the matters and their rates.
¶ 75 We also reject defendant’s argument that the attorney fees are unreasonable because the
itemized bill “contains a blend of attorney billing for all of the cases and does not separate or
keep distinct the attorney billing for each matter.” Defendant cites no case law in support of this
proposition. See Ill. S. Ct. R. 341(h)(7) (eff. July 1, 2017) (argument in appellate brief must be
supported by citation to legal authority and factual record). Moreover, our review of the matter
indicates that plaintiff did provide a detailed account of the services performed by the attorneys
in this matter and attempted to separate out the billing for each of the five cases, despite there
being some minor overlapping. We do not find this minor overlapping to be troubling where the
cases were intertwined and the fee-shifting provision allowed for the recovery of all the fees
incurred in this instance.
¶ 76 We further reject defendant’s argument that plaintiff’s delay in providing the relevant
documents regarding its standing unnecessarily increased the fees incurred. As explained above,
it was defendant who failed to engage in discovery or even assert his affirmative defense in a
timely fashion. Consequently, we decline to find the fees charged to be unreasonable for this
reason.
¶ 77 Lastly, defendant criticizes the trial court for not holding an evidentiary hearing regarding
the issue of attorney fees. We observe that defendant never requested such an evidentiary
hearing. See Cabrera v. First National Bank of Wheaton, 324 Ill. App. 3d 85, 103 (2001) (the
failure to request an evidentiary hearing on attorneys fees results in a waiver of one’s right to the
hearing). Moreover, “[a]n evidentiary hearing is not always necessary in order to determine
reasonable attorney fees. A nonevidentiary proceeding is proper so long as the trier of fact can
determine from the evidence presented, including a detailed breakdown to fees and expenses,
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what amount would be reasonable, and the opponent is not deprived of the opportunity to present
evidence.” Kroot, 2017 IL App (1st) 162315, ¶ 37. As previously discussed, plaintiff’s fee
petition provided such a detailed breakdown.
¶ 78 We conclude the trial court did not abuse its discretion in its award of attorney fees to
plaintiff.
¶ 79 CONCLUSION
¶ 80 For the reasons stated above, we affirm the judgment of the circuit court of Cook County.
¶ 81 Affirmed.
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