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10/20/94 CLIFFORD FISHER v. STATE BANK ANNAWAN

October 20, 1994

CLIFFORD FISHER, APPELLEE AND CROSS-APPELLANT,
v.
THE STATE BANK OF ANNAWAN, APPELLANT AND CROSS-APPELLEE.



Nickels, Bilandic

The opinion of the court was delivered by: Nickels

JUSTICE NICKELS delivered the opinion of the court:

Plaintiff filed this action in the circuit court of Henry County against defendant, the State Bank of Annawan, for conversion of fluids and reformation of contract. Defendant had set off plaintiff's son's debt to the bankagainst certificates of deposit (CDs) held jointly by plaintiff and his two sons. The trial court ruled in favor of defendant, but the appellate court reversed and remanded. (251 Ill. App. 3d 845.) We granted defendant leave to appeal (145 Ill. 2d R. 315) and reverse.

FACTS

Plaintiff owned five CDs which were on deposit at defendant bank. In 1979, plaintiff added his two sons' names to these CDs so that the accounts were held jointly by "Clifford Fisher or Robert D. Fisher or Harold Dean Fisher." The five CDs were issued pursuant to a bank signature card which was signed by plaintiff and his two sons. The CDs themselves provided:

"If more than one depositor is named above, and unless specifically indicated therein to the contrary, this certificate and the deposit evidenced hereby, shall belong to said depositors as joint tenants with right of survivorship (and not as tenants in common); provided, however, for all purposes, including endorsement, payment of principal and interest, presentation, transfer, and any notice to or from the depositors, this institution may deem and treat as the absolute owner hereof any one depositor named above, or the survivor or survivors, and each such depositor shall be the agent of each other depositor for all the foregoing purposes."

Plaintiff signed each certificate.

Robert was personally indebted to defendant bank for a number of farm loans he had obtained from June 27, 1986, through October 31, 1989. The loan documents Robert signed all contained a provision for setoff similar to the following:

"SET-OFF: Lender may, at any time before or after Default exercise its right to set-off all or any portion of the indebtedness of the Lender to the Borrower (whether owned by the Borrower alone or in conjunction with any other person or entity, provided that the Borrower has a beneficial interest therein) without prior notice to the Borrower. This right applies to and includes but is notlimited to any funds on deposit with the Lender, provisionally, in escrow (subject to the terms of any special agreement therefore) for collection, or in any time or open accounts."

Robert filed for bankruptcy on August 28, 1990, and defendant bank that same day set off $61,845.97 of Robert's personal debt against the five joint CDs.

Plaintiff filed suit alleging, inter alia, conversion of fluids and reformation of the CDs and the signature card. After a bench trial, the circuit court held for defendant. The appellate court reversed, finding no right of setoff because no mutuality of debts existed between the debt Robert owed to the defendant bank and the money the defendant bank held for the depositors in the CD accounts. The appellate court further noted that: (1) Robert gave no security interest in the CDs; (2) no contractual basis existed because neither the signature card nor the CDs contained any reference to the right of setoff; and (3) that the money in the CDs belonged to, and was under the exclusive control of, plaintiff.

On appeal, defendant bank argues that the appellate court erred in denying a setoff. Plaintiff cross-appeals and argues that the trial court erred in denying reformation of the signature card and Robert's loan agreements with defendant bank.

ANALYS ...


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