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BANK OF CHICAGO/LAKESHORE v. MENALDI

August 27, 1991

BANK OF CHICAGO/LAKESHORE FORMERLY KNOWN AS BANK OF CHICAGO, an Illinois Banking Corporation, Plaintiff,
v.
ARTHUR E. MENALDI, Defendant


Marvin E. Aspen, United States District Judge.


The opinion of the court was delivered by: ASPEN

MARVIN E. ASPEN, UNITED STATES DISTRICT JUDGE

 Defendant Arthur E. Menaldi has brought this motion for summary judgment in an action filed against him to collect on a promissory note. Menaldi claims that, pursuant to the terms of a settlement agreement, he has been discharged from any and all liability. Plaintiff Bank of Chicago/Lakeshore ("Bank") contends that Menaldi has defaulted on the promissory note and the terms of the settlement agreement hold him liable on the note. For the reasons set forth below, we deny the motion for summary judgment.

 I. Summary Judgment Standard

 Under the Federal Rules of Civil Procedure, summary judgment is appropriate if "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). This standard places the initial burden on the moving party to identify "those portions of 'the pleadings, depositions, answers to interrogatories, and admissions of file, together with the affidavits, if any' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986) (quoting Rule 56(c)). Once the moving party has done this, the non-moving party "must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e).

 II. Factual Background

 Sometime prior to 1982, Menaldi obtained a loan from the Bank to finance the rehabilitation of a building located in Chicago at 900 West Ainslie. The loan amount was $ 876,783.71. This sum proved insufficient to complete the rehab, and on May 13, 1982, Menaldi and his business partner, Spyridon Diogenes, secured additional monies from the Bank. The Bank also agreed to extend the due date of the original loan. Menaldi (both personally and as president of Ektafax Corp.) and the Bank executed three documents in connection with the May 13, 1982 transaction: a promissory note ("Note"), a Settlement and Loan Agreement ("Loan Agreement"), and an Escrow Agreement ("Escrow Agreement").

 Of specific importance with respect to the instant motion are paragraphs six and seventeen of the Loan Agreement. In pertinent part, paragraph six reads as follows:

 
6. ASSIGNMENTS AND DEEDS IN LIEU OF FORECLOSURE: Ektafax, Menaldi and Diogenes are hereby granted to and including November 1, 1982 in which to reduce the principal balance due the Bank to $ 225,000.00 or less, or in the alternative, to sell 8 out of the 10 condominium units in the 900 West Ainslie project. If the principal balance due on the loan is not $ 225,000.00 or less on November 1, 1982 or, in the alternative, 8 more condominium units are not and [sic] fully paid for on November 1, 1982, then the Bank shall receive Absolute Assignments in Lieu of Foreclosure and Deeds in Lieu of Foreclosure dated May 13, 1982 to ALL collateral pledged to it, in full satisfaction of the balance due it on the Note, including the following items of Collateral:
 
. . . .
 
The Bank shall deliver the Note and Release to the Debtors as provided in the Escrow Agreement. Although it is the Bank's intention to maintain all security interests in the Collateral, the Release shall constitute a full and General Release of Menaldi, Diogenes and Ektafax, and their respective heirs, successors and assigns from any and all liability under the Note, any personal guaranty thereof, mortgages, security agreements or any other documents relating to the Collateral.

 Loan Agreement para. 6.

 
Paragraph seventeen reads:
 
17. RELEASE OF DEBTORS: For and in consideration of this Settlement and Loan Agreement, and upon payment or upon receipt of the Deeds in Lieu of Foreclosure and Absolute Assignments in Lieu of Foreclosure for all sums due the Bank on or before November 1, 1982, Bank of Chicago, an Illinois Banking Corporation, shall make and deliver its General Release and discharge Ektafax Corporation, Arthur E. Menaldi and Spyridon C. Diogenes from any and all claims, demands, actions, liabilities, debts, whether asserted or unasserted, and all causes of action which it may have against any of them, arising out of or in connection with loans concurrently and heretofore made to any and or all ...

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