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WHIRLPOOL FIN. CORP. v. SEVAUX

December 28, 1994

WHIRLPOOL FINANCIAL CORPORATION, Plaintiff-counterdefendant,
v.
JEAN SEVAUX, Defendant-counterclaimant.



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

 MARVIN E. ASPEN, District Judge:

 Plaintiff Whirlpool Financial Corporation ("WFC") brings this one count complaint against Jean Sevaux, alleging that he has failed to repay a $ 1 million note owed to WFC. In response to WFC's complaint, defendant Sevaux raises six affirmative defenses and five counterclaims. Presently before this court is plaintiff's motion for summary judgment on all of Sevaux's counterclaims and affirmative defenses. For the reasons set forth below, plaintiff's motion is granted.

 I. Background1

 Sevaux is a resident of France and the United Kingdom who has been involved in banking and finance since at least 1962. WFC is a Delaware corporation that provides debt and equity's financing to business entities. Sevaux's relationship with WFC began in 1990, when he and his investment firm were contracted to identify and refer investment opportunities to WFC.

 In addition to his consulting business, Sevaux was sole owner and president of Raymond de Venezuela ("Raymond"), a Venezuelan manufacturer of concrete pilings and platforms used in offshore oil rigs. Sometime in 1991, Sevaux discovered that Raymond was in dire need of cash and required between $ 4 million and $ 5 million in order to continue its operations. Sevaux contacted Rich Palmieri, president of WFC, in late 1991 and discussed the possibility of obtaining financing for Raymond. On November 24-26, 1991, Palmieri and Joel Webber, a WFC vice-president, met with Sevaux at Raymond's offices in Venezuela. At this meeting, the parties discussed not only a short-term infusion of cash, but also a long-term refinancing of Raymond's approximately $ 13 million in Venezuelan debt obligations. In order to increase the tax advantages for WFC, the parties considered structuring the deal to involve the sale of preferred stock in Raymond to WFC. The parties also discussed which of Raymond's parent holding companies would actually be the borrowing entity. Sevaux stated in his deposition that at one point during these negotiations Palmieri took him aside and said, "for the package of $ 17.5 million, I want fifty percent of the company . . . ." Sevaux Dep., at 162. *fn2" Sevaux claims that he responded by saying "that's a deal" and shook hands with Palmieri.

 Although the terms and conditions of the $ 17.5 million package of financing were not agreed upon, *fn3" Sevaux claims that at the close of the meetings WFC agreed to advance $ 1 million to Raymond if Sevaux would advance $ 1 million of his own funds to the company. In December 1991, Sevaux spoke with Webber and Michael Schmeer, WFC's attorney, and discussed the execution of a Term Loan Promissory Note ("Note") by Sevaux in order to secure the $ 1 million to be advanced by WFC. *fn4" WFC sent to Sevaux a copy of the six-page Note, which personally obligated Sevaux to repay the principal and interest on the $ 1 million loan, *fn5" to Sevaux in December 1991. In pertinent part, the Note (1) contained a blank for indicating the applicable interest rate, (2) stated that the outstanding balance of the loan would be repaid on or before July 1, 1992, and (3) warranted that Sevaux was agreeing to the Note as part of a commercial loan transaction. Note PP 1.1, 2, 8. Sevaux filled in the applicable interest rate, signed and dated the Note on or about December 20, 1991, and returned it to WFC. He then instructed WFC to wire the $ 1 million to Raymond.

 Sevaux alleges that on July 28, 1992, WFC informed him that it would not be investing or lending any further monies to Raymond. Although payment on the Note was originally due July 1, 1992, the parties agreed to extend the time for repayment to November 30, 1992, and later to June 30, 1993. Sevaux failed to repay the Note on the June 30 maturity date.

 On August 5, 1993, WFC filed this action for payment on the Note, and Sevaux has filed an Amended Answer and Counterclaims against WFC, wherein Sevaux pleads: (1) fraud in the inducement, (2) fraud under 815 ILCS 105/10, (3) estoppel by breach of fiduciary duty, (4) constructive fraud, (5) failure of consideration, and (6) want of consideration under 815 ILCS 105/9. He also raises five counterclaims: (1) fraud, (2) breach of contract, (3) promissory estoppel, (4) breach of fiduciary duty and (5) constructive fraud. Essentially, Sevaux alleges that WFC falsely represented an intent to invest $ 17 million in Raymond, and that in reliance on that promise Sevaux signed the $ 1 million Note and invested $ 1 million of his own money into Raymond. WFC is also alleged to have falsely represented that Sevaux would never have to pay on the Note and falsely promised that the $ 17 million investment would extinguish Sevaux's obligation thereunder. Sevaux asserts that because of WFC's scheme he forewent other financial options to his own and Raymond's financial detriment. Although we denied WFC's motion to dismiss Sevaux's counterclaims and affirmative defenses in our August 24, 1994 opinion, Whirlpool Financial Corp. v. Sevaux, No. 93 C 4725, 1994 WL 550705 (N.D. Ill. August 24, 1994) (Sevaux I), WFC now moves for summary judgment on the same issue.

 II. Summary Judgment Standard

 Summary judgment is appropriate if "there is no genuine issue of material fact and . . . the moving party is entitled to 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 on 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, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) (quoting Fed. R. Civ. P. 56(c)). Once the moving party has met this burden, the non-moving party "must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(c); see Maxwell v. City of Indianapolis, 998 F.2d 431, 433 (7th Cir. 1993). In deciding a motion for summary judgment, the facts must be read in a light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). However, "self-serving affidavits without factual support in the record will not defeat a motion for summary judgment." Slowiak v. Land O'Lakes, Inc., 987 F.2d 1293, 1295 (7th Cir. 1993).

 III. Discussion

 WFC raises two arguments in support of its assertion that it is entitled to summary judgment on Sevaux's counterclaims and affirmative defenses. First, it claims that the Illinois Credit Agreements Act ("the Act") applies, and that counterclaims and defenses based on unwritten credit agreements, such as the agreement alleged by Sevaux, are therefore precluded. Second, WFC contends that the lack of any agreement between the parties, WFC's failure to make any false statements to Sevaux, the absence of a fiduciary relationship between the parties, and delivery of $ 1 million to Raymond as per Sevaux's instructions prevents Sevaux from maintaining any of his counterclaims or defenses. Because we agree with WFC's first argument as to applicability and effect of the Act on the alleged agreement between Sevaux and WFC, *fn6" we need not address WFC's remaining arguments.

 The Act imposes special writing requirements on claims stemming from any type of "credit agreement," *fn7" which is defined as an "agreement or commitment by a creditor to lend money or extend credit or delay or forbear repayment of money not primarily for personal, family or household purposes, and not in connection with the issuance of credit cards." 815 ILCS 160/1(1). In particular, the Act prohibits a debtor from "maintaining an action on or in any way related to a credit agreement unless the credit agreement is in writing, expresses an agreement or commitment to lend money or extend credit or delay or forbear repayment of money, sets forth the relevant terms and conditions, and is signed by the creditor and the debtor." 815 ILCS 160/2. Moreover, a debtor cannot raise a claim, counterclaim or defense based on an allegation that there was an "agreement by a creditor to modify or amend an existing credit agreement or to otherwise take certain actions, such as entering into a new credit agreement, forbearing from exercising remedies in connection with an existing credit agreement, or rescheduling or extending installments due under an existing credit agreement," unless the writing requirements of the ...


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