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FDIC v. BRUNO

October 31, 1991

FEDERAL DEPOSIT INSURANCE CORPORATION, as Receiver for COSMOPOLITAN NATIONAL BANK OF CHICAGO, Plaintiff,
v.
ALBERT J. BRUNO, Defendant.



The opinion of the court was delivered by: MARVIN E. ASPEN

 MARVIN E. ASPEN, District Judge:

 There are two distinct but related motions pending before this court. The first is a motion by defendant Albert J. Bruno to open and vacate the confession judgment entered against him, and to permit him to file an answer to the complaint. The second is original plaintiff Cosmopolitan National Bank of Chicago's ("Cosmopolitan" or "bank") motion to strike portions of Bruno's reply brief supporting the motion to open and vacate the confession judgment. *fn1" For the reasons set forth below, we grant Bruno's motion and deny as moot Cosmopolitan's motion.

 I. Bruno's Motion to Open Judgment

 On December 11, 1990, Cosmopolitan obtained a confession judgment against Bruno for $ 522,006.95. Bruno filed his motion to open and vacate that judgment on January 7, 1991. He contends that he has at least three meritorious defenses: fraudulent inducement, lack of consideration, and lack of delivery. He attaches his affidavit and verified proposed answer to the motion. Cosmopolitan responded as directed by the state court and filed a counteraffidavit.

 In Illinois, the procedure by which a party may petition a court to open a judgment by confession is set forth in state supreme court Rule 276, which provides that:

 Ill. Ann. Stat. ch. 110A, para. 276 (Smith-Hurd 1985).

 Our inquiry is confined to a determination of whether or not the motion and affidavit disclose a prima facie defense; we are foreclosed from inquiring "into the facts of the cause." National Boulevard Bank of Chicago v. Corydon Travel Bureau, Inc., 95 Ill. App. 2d 281, 285, 238 N.E.2d 81, 83-84 (1st Dist. 1968). More recent state court interpretation of Rule 276 makes it clear that "in determining whether allegations of a meritorious defense have been presented, the court must accept as true those facts asserted by, defendant[] in [his] affidavit[]." E.g., Colonial Bank & Trust Co. v. Kozlowski, 106 Ill. App. 3d 639, 642, 435 N.E.2d 1251, 1253, 62 Ill. Dec. 279 (1st Dist. 1982). Cosmopolitan's counteraffidavit will be considered "only to the extent that [it is] consistent with the allegations" made by Bruno. Herget Nat'l Bank of Pekin v. Theede, 181 Ill. App. 3d 1053, 1056, 537 N.E.2d 1109, 1111, 130 Ill. Dec. 780 (3d Dist. 1989). We will specifically disregard those parts of Cosmopolitan's counteraffidavits which go to the merits of Bruno's asserted defenses. Baker v. Gray, 141 Ill. App. 3d 444, 445-46, 490 N.E.2d 221, 222, 95 Ill. Dec. 748 (4th Dist. 1986). A motion under Rule 276 is addressed to the court's "sound legal discretion," and is to be considered "under liberal, equitable principles"; "the right to present a defense is considered an exercise of the conscience of the court." Corydon Travel, 95 Ill. App. 2d at 285, 238 N.E.2d at 84.

 A. Bruno's Affidavit

 Bruno's motion and affidavit *fn2" state the following. On or about November 3, 1989, Bruno received a telephone call from John Christopher, a longtime personal friend. At Christopher's request, Bruno met his friend that same day in Cosmopolitan's lobby. Christopher told Bruno that his business credit line at the bank was overdrawn, and that he needed Bruno's help. The two men then met with Gerald DeNicholas, Cosmopolitan's executive vice president and chief financial officer.

 DeNicholas told Bruno that Christopher's company, MCC, was overdrawn by $ 1.3 million, but that Cosmopolitan knew that MCC had collectible receivables of nearly $ 3 million. The bank was going to collect these receivables to "pay down MCC's line of credit." DeNicholas further told Bruno that if he would agree to borrow $ 500,000 from Cosmopolitan and use it to help pay off MCC's overdraft, Cosmopolitan "would apply the first one-half million dollars of MCC receivables it collected to pay off that loan."

 According to Bruno, DeNicholas told him that "by doing this [Bruno] would be not only helping out Mr. Christopher, but also the Bank officials and that I need not worry about the loan debt because the Bank would be able to make the payment on it with the proceeds from the MCC receivables." With DeNicholas' assurance that he was not at risk because of the outstanding receivables, coupled with a desire to help his old friend, Bruno agreed to borrow the money. DeNicholas then pulled out a $ 500,000 note, which had already been prepared, and Bruno signed it.

 Having secured Bruno's signature, DeNicholas handed over a $ 500,000 check, already typed payable to Bruno, which Bruno endorsed and gave back to the bank officer. DeNicholas then gave it to Christopher ...


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