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WHIRLPOOL FIN. CORP. v. SEVAUX

August 24, 1994

WHIRLPOOL FINANCIAL CORPORATION, Plaintiff,
v.
JEAN SEVAUX, Defendant.



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

 MARVIN E. ASPEN, District Judge:

 Plaintiff Whirlpool Financial Corporation ("WFC") brought a complaint against defendant Jean Sevaux ("Sevaux") seeking damages for Sevaux's failure to pay on a note. Sevaux responded with six affirmative defenses and five counterclaims. Presently before this Court are WFC's motion to dismiss Sevaux's counterclaims and to strike his affirmative defenses. For the reasons set forth below, we deny the motion in its entirety.

 I. Factual Background

 Sevaux's factual allegations, which we take as true for the purposes of this motion, see, e.g., Balabanos v. North Am. Inv. Group, Ltd., 708 F. Supp. 1488, 1491 n.1 (N.D. Ill. 1988), are as follows:

 WFC is a Delaware corporation with a Michigan principal place of business. Sevaux is a French citizen and resident. WFC employed Sevaux to identify and refer investment opportunities to the company. During his tenure with WFC, Sevaux referred an investment opportunity in Raymond -- a Venezuelan corporation wholly owned by Sevaux -- to WFC.

 In November 1991, WFC representatives met with Sevaux in Venezuela and orally agreed to buy a fifty percent equity interest in Raymond for seventeen million dollars. Because of cash flow problems at Raymond, WFC also agreed to advance one million dollars to Raymond if Sevaux would do the same.

 On December 21, 1991, part of this agreement was reduced to writing: Sevaux executed and delivered a Term Loan Promissory Note ("the Note") to WFC for the sum of one million dollars. The Note secured WFC's one million dollar advance to Raymond. WFC assured Sevaux that the Note was an interim measure, that he would not be required to make payment on it, and that the proceeds would be converted to a portion of WFC's equity investment in Raymond. Sevaux also personally advanced one million dollars to Raymond in anticipation of WFC's equity investment.

 That investment never came. On July 28, 1992, after payment on the Note was first due, WFC told Sevaux that it would not fulfill its promise to invest in Raymond.

 The Note itself provides that Sevaux was obligated to repay the principal on July 1, 1992. WFC extended the maturity date through Note Extension Agreements signed by both WFC and Sevaux, first to November 3, 1992, and later to June 30, 1993. Sevaux failed to pay on the June 30, 1993, maturity date.

 Less than a week later, and on August 5, 1993, WFC filed this action for payment on the Note. In response, Sevaux pleaded six affirmative defenses -- fraud in the inducement; fraud under 815 ILCS 105/10; estoppel by breach of fiduciary duty; constructive fraud, failure of consideration, and want of consideration under 815 ILCS 105/9. He also pleaded five counterclaims -- fraud, breach of contract, promissory estoppel, breach of fiduciary duty and constructive fraud.

 In short, Sevaux contends that WFC schemed to defraud him. Sevaux alleges that WFC falsely represented an intent to invest $ 17 million in Raymond, that in reliance on that promise Sevaux signed the $ 1 million Note and invested $ 1 million of his own cash into Raymond. WFC also falsely represented that Sevaux would never have to pay on the Note because WFC promised that the $ 17 million investment would extinguish Sevaux's obligation thereunder. Because of this scheme, Sevaux contends he forewent other financial options to his own and Raymond's financial detriment.

 WFC has moved to dismiss under Fed. R. Civ. P. 12(b) (6) all of the counterclaims for failure to state a claim upon which relief can be granted. WFC also moves to strike under Fed. R. Civ. P. 12(d) all ...


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