Appeal from the Circuit Court of Cook County; the Hon. Myron
T. Gomberg, Judge, presiding.
JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:
On June 9, 1980, the Des Plaines Bank (Bank) brought suit in the circuit court of Cook County to recover from George and Glenda Maris (husband and wife) (defendants) and Louis Kucharis *fn1 loans made to Stacy Industries, Inc. (Stacy), and represented by three promissory notes alleged to have been personally guaranteed by defendants. On May 21, 1981, the Federal Deposit Insurance Corporation (FDIC), in its capacity as receiver of the Bank (Ill. Rev. Stat. 1979, ch. 16 1/2, par. 158), was granted leave of court to be substituted as plaintiff.
Defendants appeal from the trial court's December 7, 1982, order in which the court (1) refused to vacate or modify its March 4, 1982, order dismissing defendants' affirmative defenses and (2) granted FDIC's motion for summary judgment in the amount of $88,958.78 plus costs.
The issue raised by this appeal is whether the trial court erred in striking defendants' affirmative defenses and in entering summary judgment in favor of FDIC.
For the reasons hereinafter set forth we reverse the judgment of the trial court and remand this case for trial.
The Marises, at all times relevant to this action, owned 50% of the stock of "a small manufacturing and design firm," Stacy Industries, Inc. George Maris was president of Stacy. On December 5, 1978, the Bank loaned to Stacy $15,000. Defendants executed a note (not the subject of this action) to secure that loan, which was timely repaid. At the same time, defendants each signed separate but identical guaranty instruments which in pertinent part provided as follows:
For and in consideration of the sum of One Dollar ($1.00) to the undersigned in hand paid by the Des Plaines Bank hereinafter referred to as the `Bank,' receipt of which is hereby acknowledged, the undersigned, and each of them, hereinafter referred to as the `Guarantors' do hereby jointly and severally guarantee to the said Bank that Stacy Industries hereinafter referred to as the `Debtor,' shall promptly and fully pay any and all indebtedness which now exists and/or which may hereafter accrue in any manner from said Debtor to the Bank up to the limit of ____ Dollars ($ ____) and in the event that the said Debtor fails at any time or times to pay promptly any and all indebtedness which now exists and/or may hereafter accrue from said Debtor to the Bank as same becomes due, the undersigned and each of them hereby jointly and severally promise to pay any and all such indebtedness as the same becomes due from said Debtor to the Bank, forthwith, upon demand, with all expenses incurred in enforcing payment under this instrument.
This is a continuing Guaranty and by this instrument the Guarantors guarantee the prompt payment of any and all indebtedness which may now exist and/or may hereafter accrue at any time or times from said Debtor to the limit of this Guaranty." (Emphasis added.) *fn2
These guaranty instruments also provide that defendants agree to pay "all expenses incurred in enforcing payment under this instrument * * * including costs and reasonable attorney's fees."
In October and December of 1979 the Bank made three additional loans to Stacy. Three individual notes reflecting these loans were executed and delivered to the Bank by George Maris as president of Stacy. The execution dates, amounts, interest rates and maturity dates of each of the notes were as follows:
Date Principal Amount Interest Rate Due Date
10/29/79 $27,724.78 18.50% 1/28/80 10/29/79 7,000.00 18.50% 1/28/80 12/8/79 18,256.00 19.00% 3/7/80
It is undisputed that none of these notes was in fact repaid by Stacy upon maturity. Stacy's corporate obligation on these notes was apparently discharged in bankruptcy. *fn3 On June 9, 1980, the Bank initiated this action to recover the ...