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05/04/87 Life Savings and Loan v. Palos Bank and Trust

May 4, 1987

LIFE SAVINGS AND LOAN ASSOCIATION OF AMERICA, PLAINTIFF-APPELLEE AND CROSS-APPELLANT

v.

PALOS BANK AND TRUST COMPANY, DEFENDANT-APPELLANT AND CROSS-APPELLEE (NATIONAL REPUBLIC BANK OF CHICAGO, DEFENDANT)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

508 N.E.2d 262, 155 Ill. App. 3d 748, 108 Ill. Dec. 101 1987.IL.580

Appeal from the Circuit Court of Cook County; the Hon. Myron T. Gomberg, Judge, presiding.

APPELLATE Judges:

JUSTICE BUCKLEY delivered the opinion of the court. QUINLAN, P.J., and CAMPBELL, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BUCKLEY

This contract action arises from the alleged breach of a loan participation agreement. O'Hare International Bank (O'Hare) and Life Savings and Loan (Life) were the original parties to the loan participation agreement. Under the agreement, O'Hare and Life each had a half interest in a mortgage loan issued to Thomas Gimino (Gimino), who operated Josef's Restaurant on the property that was the collateral for the loan.

According to the terms of the agreement, O'Hare was the "lead bank." As the lead bank, it would receive 100% of the principal and interest payments from Gimino and then remit 50% of those payments to Life Savings. The agreement also provided that the lead bank would not assign its participation "without prior notification" to Life Savings.

In March 1977, Gimino defaulted on his mortgage loan. On April 15, 1977, O'Hare filed a mortgage foreclosure suit. Subsequently, O'Hare obtained a decree of foreclosure which stated that a balance was due in the sum of $352,291.63; the decree set a foreclosure sale date of November 15, 1977.

To stave off the scheduled foreclosure sale, Anthony V. Crissie (Crissie), an investor in Josef's Restaurant, proposed a deal. The terms of the deal were as follows: (1) Palos Bank and Trust (Palos) would buy out O'Hare's half interest in the Gimino mortgage loan; (2) O'Hare would assign its rights in the foreclosure decree to Palos; (3) on an interim basis, Palos would assume the position of lead bank as O'Hare's assignee of the participation agreement; (4) Life would defer payment on its half of the mortgage loan and the foreclosure sale would be postponed; (5) Palos would subsequently assign its half interest in the loan, its rights in the foreclosure decree, and its position as lead bank to National Republic Bank. Crissie averred in an affidavit, that on November 14, 1977, he discussed the terms of the proposed agreement with Life's president, Dante Dell' Armi, who consented to its terms.

In the following months, the terms of Crissie's proposal were carried out. On November 15, 1977, O'Hare assigned the participation agreement, its interest in the Gimino mortgage loan, and its rights under the foreclosure decree to Palos. Life agreed in writing to O'Hare's assignment of the participation agreement. As O'Hare's assignee, Palos became lead bank.

Shortly thereafter, Palos assigned its rights under the foreclosure decree, its interests in the loan, and the participation agreement to National Republic Bank (National). On March 1, 1978, National purchased the Gimino real estate at the sheriff's foreclosure sale. Several months later it sold the property to Crissie for $383,613.97. National allegedly gave none of these proceeds to Life.

Life filed a multiple-count complaint against Palos and National. Count I, which is the subject of the present appeal, alleges that Palos, as

After conducting discovery, Life moved for summary judgment on count I of its complaint. Life averred in its affidavits that its board of directors, loan committee, and secretary-treasurer never "received any notification, written or oral, from Palos Bank, or any party purporting to act on behalf of Palos Bank, that Palos Bank intended to assign its interest . . . to National Republic."

In response, Palos presented several affidavits from Anthony Crissie. Crissie averred that he had advised the president of Life of the proposed deal and he agreed to its terms. His affidavits were stricken and Life's motion for summary judgment was granted. The court entered judgment of $151,613.87, which represented the principal amount of the note, and later entered judgment in the further amount of ...


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