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Independent Trust Corp. v. Hurwick

July 28, 2004


[6] Appeal from the Circuit Court of Cook County. No. 00 CH 08270. Honorable Sidney Jones, III and Sophia Hall Judges Presiding.

[7] The opinion of the court was delivered by: Justice Hall

[8]  The plaintiff, Independent Trust Corp. (Intrust), brought suit against the defendants, Laurence W. Capriotti, Jack L. Hargrove, Alan L. Hurwick, ITI Enterprises, Inc. (ITI), and Wholesale Real Estate Services, Inc.*fn1 , alleging breach of contract, fraud, breach of fiduciary duty, and conversion. The complaint also sought an accounting. The circuit court granted Intrust's motions for summary judgment, and judgments in the amount of $68,096,551.78 ($68.1 million) were entered against each of the defendants. The defendants, with the exception of Mr. Hurwick, appeal from the judgment of the circuit court.*fn2

[9]  Messrs. Hargrove and Capriotti and the corporate defendants raise the following issues on appeal: whether the circuit court erred when it denied the defendants' motions for a more particular statement of facts and bills of particulars and whether the circuit court erred when it granted the motions for summary judgment. Mr. Capriotti raises an additional issue: whether the circuit court erred when it denied Mr. Capriotti's motion to dismiss counts II, III and IV of the complaint.


[11]   Intrust was an Illinois corporate fiduciary organized under the Corporate Fiduciary Act (205 ILCS 620/1-1 et seq. (West 1998)) and was regulated by the Illinois Commissioner of Banks and Real Estate (the OBRE).*fn3 In re Possession & Control of the Commissioner of Banks & Real Estate of Independent Trust Corp., 327 Ill. App. 3d 441, 449, 764 N.E.2d 66 (2001) (Banks & Real Estate Corp.). Intrust served as the custodian for various investment trust assets that its customers placed in its custody. Banks & Real Estate Corp., 327 Ill. App. 3d at 449-50.

[12]   On April 14, 2000, after Intrust failed to comply with its directions, the OBRE seized control of Intrust, appointed PriceWaterhouse Coopers, LLP (PWC), as receiver and commenced an action for dissolution and liquidation of Intrust. Banks & Real Estate, 327 Ill. App. 3d at 451.

[13]   The complaint in this case, filed on June 1, 2000, stems from the discovery of a $68.1 million cash shortage from trust funds deposited for investment with Intrust. See Banks & Real Estate Corp., 327 Ill. App. 3d at 449.

[14]   The following facts are taken from the complaint, depositions, affidavits, and exhibits in the record.

[15]   Intercounty Title Company (Intercounty) was owned by ITI Enterprises, Inc. Mr. Capriotti was president of both ITI and Intercounty and was a director of Intrust. Mr. Hargrove was a director of Intercounty and chairman of Intrust's board of directors. Mr. Hargrove owned Intrust through Intrust's parent company, Madison Avenue Investments, Inc. Mr. Hurwick was the chief financial officer (CFO) of ITI and Intercounty.

[16]   As of 1992, Intrust's board of directors had five members. At the end of 1994, Intrust's board of directors consisted of Messrs. Hargrove, Capriotti, and Gary Bertacchi, president of Intrust.

[17]   In 1990, Mr. Capriotti instructed Gary Irwin, then president of Intrust, to set up an escrow agreement whereby Intrust could deposit trust-holder funds into an escrow account managed and controlled by Intercounty. Mr. Irwin had previously worked at Intercounty for Messrs. Capriotti and Hargrove. His salary at Intrust was paid by Intercounty. In 1992, Mr. Irwin returned to work at Intercounty at the direction of Mr. Hargrove.

[18]   Under the escrow agreement with Intercounty, Intrust agreed to deposit funds with Intercounty. In turn, Intercounty pledged that it would hold the funds in an interest-bearing account (the escrow account) at LaSalle National Bank (LaSalle Bank), unless and until it was specifically authorized by Intrust to remove the funds. Other than the above provision, Intrust had no control over the escrow account. Only Intercounty could remove funds from the escrow account. On December 4, 1990, Intrust deposited funds in the escrow account in the amount of $16,582,098.78 with Intercounty.

[19]   In the performance of its regulatory function, the OBRE noted that Intercounty commingled the Intrust funds with its other funds. In its February 28, 1994, report, the OBRE pointed out that the commingling created a breach of fiduciary duty and directed Intrust to insure that its deposits with Intercounty were segregated in a separate account. However, the OBRE's May 2, 1995, report noted that the funds were still being commingled and that Intrust was not receiving statements directly from LaSalle Bank, relying instead on spreadsheets supplied by Intercounty. The OBRE recommended that Intrust establish a separate trust account containing only cash which is the property of the various trusts. At the July 25, 1995, Intrust board of directors meeting, Mr. Capriotti stated that he would contact Intercounty and make sure Intrust's funds were segregated from other funds.

[20]   On January 1, 1996, the OBRE again directed the segregation of Intrust's funds being held by Intercounty, and again, Mr. Capriotti agreed to have the funds placed in a separate LaSalle Bank account prior to the next OBRE examination. Despite Mr. Capriotti's statement to the board of directors at the May 20, 1996, meeting that he was going to have the funds segregated, Intrust's funds remained commingled with Intercounty's funds. Mr. Capriotti failed to respond to Mr. Bertacchi's repeated requests to place the funds in a segregated account.

[21]   On January 21, 1997, Mr. Bertacchi sent a memorandum to George Stimac, with copies to Messrs. Capriotti and Hurwick, authorizing and directing him to deposit $54 million in Intrust escrow funds into the new segregated escrow account (segregated account) opened at LaSalle Bank. Despite another memorandum to Mr. Capriotti, Intrust's funds were still not transferred to the segregated account.

[22]   At the March 28, 1997, Intrust board meeting, Mr. Capriotti advised that the segregation process would be completed by the end of the second quarter of 1997. On May 21, 1997, Mr. Bertacchi advised Mr. Hargrove of the difficulties he was having with Mr. Capriotti over the transfer of Intrust's funds to the segregated account.

[23]   At the June 6, 1997, board meeting, Mr. Capriotti advised that he was finalizing the segregation process and that it would be completed by the end of the second quarter. On or before June 27, 1997, Mr. Bertacchi spoke with Mr. Capriotti, who told him he would send Mr. Bertacchi a copy of a bank statement for the segregated account. On June 27, 1997, Mr. Bertacchi received a LaSalle Bank statement showing a balance of $54,894,943 in the segregated account, which corresponded with the amount that Intercounty should have had in Intrust's account, based upon the Intrust's history of deposits and withdrawals. The LaSalle Bank statement was faxed, using an ITI fax cover sheet, and was sent by "Larry/Susan."

[24]   On August 20, 1998, Mr. Bertacchi sent a memorandum to Mr. Hargrove, explaining that, despite the fax from "Larry and Susan," Intrust's funds had never been transferred to the segregated account, and asked for his assistance.

[25]   On August 31, 1998, the OBRE issued another report in which it noted that Intrust did not hold signatory authority over the segregated account and did not receive bank statements from LaSalle Bank. The OBRE further noted the close relationship between the Intercounty and Intrust which, arguably, created a situation where the corporate fiduciary was benefitting from the trust funds, a violation of trust principles. Intrust responded that its board had considered the comments and that Mr. Capriotti was taking steps to resolve the situation prior to the next audit.

[26]   Also, on or about August 31, 1998, Mr. Bertacchi received, either by fax or messenger, another LaSalle Bank statement from Intercounty, showing a balance of $54,840,466.02 in the segregated account. In a September 15, 1998, letter to Mr. Bertacchi on ITI letterhead, Mr. Hurwick stated that Intercounty was holding $54,832,735.26 as of August 31, 1998.

[27]   At the December 10, 1998, Intrust board of director's meeting, the OBRE's report was discussed. In Intrust's written response to the OBRE's August 31, 1998, report, Mr. Bertacchi advised the OBRE that Mr. Capriotti had indicated that he would take the necessary steps to satisfy the OBRE as to the segregated account situation.

[28]   In an April 6, 1999, memorandum to Mr. Capriotti, Mr. Bertacchi advised that Intrust had lost a large investment advisor because Intrust could not produce a nonqualified audit report and that he had not made any progress with Mr. Hurwick toward securing Intrust's control of the segregated account.

[29]   On April 21, 1999, Mr. Capriotti called Mr. Bertacchi and proposed that Intrust deposit $3.5 million into the segregated account. According to the tape of the conversation with Mr. Capriotti, the transfer was necessary because Messrs. Hargrove and Capriotti needed the funds in connection with a business project, but the funds would be returned to Intrust by April 30, 1999.

[30]   At the April 23, 1999, board of directors meeting, Mr. Capriotti indicated that he would like to see the balances at LaSalle Bank increased by $10 million. The proposal was supported by Mr. Hargrove and, over the objection of Mr. Bertacchi, the board authorized another $5.7 million to be wire-transferred from Intrust to the segregated account. According to the tape recording of the meeting, Messrs. Capriotti and Hargrove claimed that they needed the money to secure more favorable interest rates on loans they had and that the funds would be returned to Intrust by April 30, 1999.

[31]   On April 21, 1999, Intrust wire-transferred $3.5 million into the segregated escrow account; on the same day, Intercounty transferred the same amount out of the segregated escrow account. On April 23, 1999, Intrust wire-transferred $5.7 million into the segregated escrow account; again, on the same day, Intercounty transferred the same amount out of the segregated escrow account. By May 1999, the funds had not been returned to Intrust, and Mr. Bertacchi's efforts to retrieve Intrust's funds were unsuccessful.

[32]   In May and June 1999, Mr. Bertacchi wrote to Mr. Hurwick requesting wire-transfers of $15 million and the $10 million from the segregated escrow account to Intrust, but received no response. Mr. Bertacchi also wrote to Mr. Capriotti requesting the return of the $9.2 million and that control of Intrust's deposits be transferred to Intrust. Finally, on August 3, 1999, Mr. Bertacchi wrote to Mr. Hurwick requesting proof that Mr. Binkowski and Mr. Bertacchi had been added as signatories on the segregated escrow account or, in the alternative, the funds in the segregated escrow account were to be placed in an account under the control of Intrust. On August 10, 1999, Mr. Hurwick responded that he could take no action until the matters were addressed and voted on by the Intrust board of directors.

[33]   Also on August 10, 1999, the OBRE issued another report, requiring the dissolution of the escrow agreement between Intrust and Intercounty. At the August 24, 1999, Intrust board meeting, Mr. Capriotti stated that the funds from the segregated escrow account should be moved to a new account in Intrust's name at LaSalle Bank. On August 31, 1999, when Messrs. Bertacchi and Binkowski went to LaSalle bank to set up the new account, they were informed that Intercounty had transferred all of its accounts to another bank. Mr. Bertacchi again requested that Mr. Hurwick wire-transfer the Intrust funds held by Intercounty, but he failed to do so, even after Mr. Capriotti assured Mr. Bertacchi that he would direct Mr. Hurwick to transfer the funds.

[34]   On September 15, 1999, the OBRE issued a corrective action order to Intrust to terminate the escrow agreement with Intercounty and take control of the trust assets. At a September 30, 1999, board meeting, Mr. Capriotti assured the Intrust board of directors that its funds were in no danger due to the fact that Intercounty was audited not only by its own auditors but by the title insurance company and their reinsurer, who in turn was audited by the Illinois Department of Financial Institutions. The Intrust board sent a letter to the OBRE stating that the transfer of the funds to Intrust would take place no later than October 15, 1999.

[35]   The OBRE officials attended the November 9, 1999, Intrust board meeting. Mr. Capriotti stated that he would direct LaSalle bank to send the OBRE copies of the signature card and bank statements for the previous six months. He also stated that he would see to it that the segregated escrow account was closed, and the Intrust deposits returned to Intrust by November 20, 1999. At a November 17, 1999, meeting with the OBRE, Mr. Capriotti reiterated that the account would be closed and the funds transferred that day.

[36]   In December 1999, Mr. Capriotti sent the OBRE a signature card, signed by Messrs. Hurwick, Bertacchi, Capriotti for an account at LaSalle Bank in the name of Intrust as Trustee. The OBRE also received a copy of a corporate resolution which purported to inform LaSalle Bank as to the signatory authority over the above account. Included was a note stating that Messrs. Capriotti and Hargrove would be working with LaSalle Bank to address the remaining questions concerning the escrow account. Although Mr. Hurwick had signed the resolution, he held no position at Intrust.

[37]   By the beginning of 2000, the funds had still not been transferred. Mr. Capriotti blamed the delay on problems encountered in opening the new account at LaSalle Bank. Mr. Capriotti assured the OBRE that Intrust had no problems and that the transfer delay was due to the unavailability of Intrust's president.

[38]   In January 2000, in a tape-recorded conversation, Messrs. Capriotti and Hargrove instructed Mr. Bertacchi to deposit more Intrust funds into the segregated escrow account. However, after Mr. Bertacchi threatened to resign, no transfer took place. On February 4, 2000, Mr. Hurwick wrote to Mr. Bertacchi advising him that, as of December 31, 1999, Intercounty was holding $67,817,367.99 in funds belonging to Intrust. On that same date, Mr. Capriotti told the OBRE that Mr. Hurwick had been the assistant treasurer of Intrust for two years, although Intrust had never employed Mr. Hurwick.

[39]   At the time Intrust was placed into receivership, there were no funds in the segregated escrow account. After reviewing and analyzing the relevant Intrust, Intercounty and bank records, Patricia Tilton, a principal with PWC, concluded that the Intercounty monthly statements to Intrust had falsely reported to Intrust the balances that were actually in the escrow accounts and that the escrow accounts actually held far less money. According to her affidavit, in most instances, Intercounty's monthly statements overestimated the amount of escrow funds being held by Intercounty by tens of millions of dollars.

[40]   Circuit Court Proceedings

[41]   Initially, the defendants responded to the complaint by filing demands for bills of particulars and moving for a more definite statement. After those motions were denied, the defendants filed motions to dismiss pursuant to section 2-615 of the Code of Civil Procedure (the Code) (735 ILCS 5/2-615 (West 2000)). After the denial of the motions to dismiss, the corporate defendants filed a "statement in lieu of answer" reiterating that they could not answer the complaint in its present form. Messrs. Hargrove and Capriotti filed answers asserting their fifth amendment privilege against self-incrimination.

[42]   Intrust filed separate motions for summary judgment against the corporate defendants, Mr. Hurwick, and ...

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