The opinion of the court was delivered by: Judge Blanche M. Manning
Name of Assigned Sitting Judge if Other or Magistrate Judge than Assigned Judge
For the reasons stated below, the motion to dismiss [45-1] is granted. Engle's counterclaims and affirmative defenses are dismissed with prejudice.
O[ For further details see text below.]
Plaintiff Bank of America filed suit against Clyde Engle for alleged defaults on a loan and a subsequent personal guaranty. Engle alleges six affirmative defenses and five counterclaims, which BOA has moved to dismiss. For the reasons stated below, the motion is granted.
Briefly, BOA alleges that its predecessor, LaSalle Bank, loaned over $10 million to Engle and an additional $3 million to Lincolnwood Bancorp, Inc., the latter of which Engle personally guaranteed. Specifically, BOA alleges that it loaned money to Engle pursuant to a Replacement Secured Promissory Note dated as of March 31, 2008 ("Engle note").
The Engle note contains a release as follows:
Borrower hereby releases Bank from any and all causes of action or claims which Borrower may now or hereafter have for any asserted loss or damage to Borrower claimed to be caused by or arising from: (a) Bank's taking action permitted by the paragraph; (b) any failure of Bank to protect, enforce, or collect in whole or in part nay of the Collateral; and/or (c) any other act or omission to act on the part of Bank, its officers, agents, or employees, except for willful misconduct.
BOA also loaned money to Lincolnwood Bancorp., Inc., as evidenced by a Time Note as of June 30, 2008. BOA alleges that in order to induce it to enter into the Time Note, Engle executed in favor of BOA a Continuing Unconditional Guaranty dated as of June 30, 2008, pursuant to which Engle unconditionally guaranteed the full and prompt repayment of any of Lincolnwood's obligations. The Lincolnwood Note was amended pursuant to the Omnibus Amendment to Time Note dated September 30, 2008. At the time, Engle reaffirmed the terms of ...