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Avanti Medical Group, LLC v. BMO Harris Bank, N.A.

Court of Appeals of Illinois, Second District

December 22, 2014

AVANTI MEDICAL GROUP, LLC, and KENNETH BARRICK, Plaintiffs-Appellants,
v.
BMO HARRIS BANK, N.A., Defendant-Appellee

Appeal from the Circuit Court of Du Page County. No. 13-MR-1286. Honorable Terence M. Sheen, Judge, Presiding.

Affirmed.

SYLLABUS

Plaintiffs' action against defendant bank for breach of a credit agreement was properly dismissed by the trial court on the ground that plaintiffs failed to allege that the agreement satisfied the signature requirement of the Credit Agreements Act, since the only document setting forth any of the loan terms was entitled the " Amended Terms," that document was only signed by the creditor, and the documents with the signatures of both the creditor and the debtor were some of the " Terms Documents," but those documents were generic, preprinted forms bearing no reference to the loan between the parties.

Gary L. Taylor, Polina Arsentyeva, Rathje & Woodward, LLC, of Wheaton, for Appellants.

Richard A. Wohlleber, S. Todd Sipe, Mark A. Silverman, Chapman & Cutler LLP, of Chicago, for Appellee.

JUSTICE BIRKETT delivered the judgment of the court, with opinion. Justices McLaren and Hudson concurred in the judgment and opinion.

OPINION

BIRKETT, JUSTICE

Page 692

[¶1] Plaintiffs, Avanti Medical Group, LLC, and Kenneth Barrick, appeal the dismissal of their complaint against defendant, BMO Harris Bank, N.A., for breach of a credit agreement. We affirm because plaintiffs failed to allege that the agreement met the signature requirement in section 2 of the Credit Agreements Act (815 ILCS 160/2 (West 2012)).

[¶2] I. BACKGROUND

[¶3] In their August 2013 complaint, plaintiffs alleged as follows. Kenneth Barrick formed Avanti Medical Group, LLC (Avanti), in 2009 to develop, own, and operate a series of " retail healthcare clinics" in supermarkets. In March 2010, Barrick signed an agreement with SuperValu, Inc., to operate clinics within its stores. SuperValu approved the opening of 70 such clinics. Barrick also signed agreements with several Illinois hospital systems to lend their names exclusively to Avanti's clinics and to refrain from competing with Avanti. The hospital systems included Alexian Brothers Medical Group, Provena, and Elmhurst Memorial Healthcare. At the time, Barrick was employed by Alexian Brothers as an emergency-room physician. With funds from investors, Avanti opened three clinics in the Chicago area. Barrick personally guaranteed the investments.

[¶4] In the summer of 2011, Barrick applied to BMO Harris Bank, N.A. (BMO), for a loan to fund existing and projected clinics. Barrick met with Matthew Gable, BMO's vice president, to discuss the loan application. Barrick provided Gable with a summary of Avanti's business plan as well as financial information from the three existing clinics. According to plaintiffs, " [t]hroughout their relationship, Gable assured Barrick that BMO was fully committed to funding Avanti's clinics." Also, " Gable, Avanti, and East Trend Corp ('ETC'), conducted meetings and conference calls during which the parties discussed the structure and disbursement of the loan," and " ETC committed to providing a standby letter of credit as collateral securing the loan from BMO."

[¶5] Plaintiffs alleged that, as a result of Barrick's discussions with Gable, " both Barrick, on behalf of Avanti, and Gable executed" a document on July 12, 2011, entitled " Summary of Terms and Conditions" (Original Terms). Plaintiffs attached a copy of the Original Terms to their complaint. The Original Terms is dated July 12, 2011, and is signed by both Gable and Barrick. The document sets

Page 693

forth terms of a credit facility of up to $25 million and specifies a closing date of " [n]o later than August 12, 2011."

[¶6] Plaintiffs alleged that, on July 28, 2011, the Original Terms " [was] amended by written agreement." Plaintiffs alleged that Gable signed this new document, also entitled " Summary of Terms and Conditions" (Amended Terms). Plaintiffs did not, however, allege that Avanti signed the Amended Terms. Plaintiffs attached a copy of the Amended Terms, which is dated July 28, 2011, and bears only Gable's signature. The Amended Terms sets forth terms of a credit facility of up to $10 million--a significant reduction from the amount specified in the Original Terms. The ...


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