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Hollywood Blvd. Cinema, LLC v. FPC Funding II, LLC

Court of Appeals of Illinois, Second District

November 17, 2014

HOLLYWOOD BOULEVARD CINEMA, LLC, Plaintiff and Counterdefendant,
FPC FUNDING II, LLC, Defendant and Counterplaintiff-Appellee (Lyon Financial Services, Inc., d/b/a U.S. Bancorp Equipment Finance, Inc., Nationwide Recovery Systems, Ltd., and West Suburban Bancorp, Inc., Defendants; Ted E. Bulthaup III, a/k/a/ Edwin C. Bulthaup III, a/k/a Ted C. Bulthaup III, Counterdefendant-Appellant)

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Appeal from the Circuit Court of Du Page County. No. 10-MR-852. Honorable Bonnie M. Wheaton, Judge, Presiding.


In proceedings arising from defendant's attempt to recover on an equipment finance lease for the seats and an elevator used in a theater operated by plaintiff, the trial court properly entered summary judgment for defendant on its counterclaim to recover on counterdefendant's personal guaranty of the lease, notwithstanding counterdefendant's contention that defendant failed to present a written assignment of the lease or other sufficient evidence that the lease was assigned to defendant, since counterdefendant forfeited his argument by failing to cite any authority or anything in the record supporting his argument, but rather he only made conclusory assertions without citing any authority or making any explanation, such as the claim that certain affidavits presented on defendant's behalf were not " sufficient to prove" that the lease was assigned to defendant.

Kenneth M. Sullivan and Kevin J. Mahoney, both of Tressler LLP, of Chicago, for appellant.

D. Alexander Darcy and Amrit S. Kapai, both of Askounis & Darcy, P.C., of Chicago, for appellee.

JUSTICE ZENOFF delivered the judgment of the court, with opinion. Justices Hutchinson and Birkett concurred in the judgment and opinion.



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[¶1] Counterdefendant, Ted E. Bulthaup III, is the managing member of Hollywood Boulevard Cinema, LLC (Hollywood), which operates a movie theater in Woodridge, Illinois. Hollywood entered into an equipment finance lease with IFC Credit Corporation (IFC), for the lease of 1,200 movie theater seats and a custom-made elevator, and Bulthaup personally guaranteed Hollywood's obligations under the lease. IFC allegedly assigned the lease and personal guaranty to counterplaintiff, FPC Funding II, LLC (FPC), which, upon being sued by Hollywood, filed a counterclaim against Bulthaup for breach of the personal guaranty. Bulthaup appeals the grant of summary judgment in FPC's favor on its counterclaim. For the following reasons, we affirm.


[¶3] In its declaratory judgment complaint, Hollywood alleged the following. After it entered into the equipment finance lease with IFC, Hollywood tendered a $20,565 security deposit to IFC and began making monthly lease payments. Later, Hollywood sent $10,000 to IFC as prepayment of monthly lease payments, but IFC never acknowledged receiving the payment. Instead, Hollywood received a letter from FPC directing Hollywood to send its monthly lease payments to FPC. Subsequently, Hollywood received communications from Lyon Financial Services, Inc., d/b/a U.S. Bank Portfolio Services (U.S. Bank), and Nationwide Recovery Systems, Ltd. (Nationwide), indicating that they

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were entitled to receive the lease payments. Nationwide asserted that it was collecting the lease payments on behalf of West Suburban Bancorp, Inc. (West Suburban). Meanwhile, IFC filed for bankruptcy, and Hollywood ceased making monthly lease payments in light of " the refusal of any party to provide it with proof that it had been assigned some right in the Lease."

[¶4] In its original complaint, Hollywood sought declarations that U.S. Bank, Nationwide, and West Suburban were not entitled to receive lease payments. Subsequently, both West Suburban and Nationwide were dismissed from the action after they expressly disclaimed any right to the lease payments. Thereafter, Hollywood filed an amended complaint seeking declarations that neither U.S. Bank nor FPC was entitled to receive lease payments.

[¶5] FPC then filed counterclaims against Hollywood and Bulthaup, alleging breach of the lease and breach of the personal guaranty, respectively. Hollywood filed for bankruptcy, and proceedings against it were stayed. Proceedings against Bulthaup for breach of the personal guaranty continued. FPC's counterclaim against Bulthaup alleged that IFC had assigned the lease and personal guaranty to FPC. FPC further alleged that Hollywood defaulted on the lease when it ceased making monthly lease payments and that Bulthaup was required to honor Hollywood's obligations.

[¶6] FPC moved for summary judgment on its counterclaim against Bulthaup. FPC argued that the exhibits attached to its motion established " a valid sale and assignment" of the lease and personal guaranty from IFC to FPC. FPC contended that there was no genuine issue of material fact as to FPC's ownership or as to Bulthaup's liability.

[¶7] Attached to FPC's summary-judgment motion were affidavits from Rebecca Elli, Jayan Krishnan, and Jodi White. Elli was a former attorney for IFC. Krishnan was senior vice president of DZ Bank AG Deutsche Zentral-Genossenschaftsbank, Frankfurt AM Main (DZ Bank). White was a loss mitigation/workout specialist employed by U.S. Bank.

[¶8] The affidavits described the relationship among six entities: IFC, FPC, U.S. Bank, DZ Bank, Autobahn Funding Company, LLC (Autobahn), and Wells Fargo Bank (Wells Fargo). In 2003, IFC and FPC entered into a purchase agreement, under which IFC agreed to assign to FPC " from time to time" equipment finance leases originated by IFC. In 2005, the six entities entered into a " Receivables Loan and Security Agreement" (RLSA), which defined FPC as the borrower, IFC as the servicer, Autobahn as the lender, DZ Bank as the lender's agent, and Wells Fargo as the custodian. Under the RLSA, Autobahn agreed to make loans to FPC " from time to time," secured by assets that FPC pledged to DZ Bank, as Autobahn's agent. The pledged assets were to include equipment finance leases that IFC assigned to FPC pursuant to the purchase agreement. Under the RLSA, after FPC pledged leases to DZ Bank in exchange for loans from Autobahn, IFC would act as servicer of the leases, continuing to collect lease payments and enforce the lease terms. In 2007, the parties to the RLSA named U.S. Bank as the " backup replacement servicer," meaning that U.S. Bank would replace IFC as servicer of the leases if IFC defaulted on its obligations as servicer.

[¶9] According to White's affidavit, " [o]n or about July 10, 2008, IFC assigned the [Hollywood] Lease to FPC." According to Krishnan's affidavit, on December 2, 2008, pursuant to the RLSA, FPC pledged the Hollywood lease, along with a number of

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other leases, to DZ Bank as collateral for a loan from Autobahn in the amount of $1,146,653.55. According to White's affidavit, on July 2, 2009, DZ Bank terminated IFC as servicer of the pledged ...

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