GARY VICIAN and GALE VICIAN, Assignees of Edward Vician and Dolores Vician, Plaintiffs-Appellees,
GREGORY L. VICIAN and MICHELLE VICIAN, Defendants-Appellants.
Rehearing denied October 28, 2016
from the Circuit Court of McHenry County, No. 14-LA-127; the
Hon. Thomas A. Meyer, Judge, presiding.
Carponelli Law Office, LLC, of Hoffman Estates (Ross S.
Carponelli, of counsel), for appellants.
Brown, of Michling Plaza & Associates, of Woodstock, and
Glenn S. Vician, pro se, of Merrillville, for appellees.
McLAREN JUSTICE delivered the judgment of the court, with
opinion. Justices Hudson and Birkett concurred in the
judgment and opinion.
1 Plaintiffs, Gary Vician and Gale Vician, assignees of
Dolores Vician and Edward Vician on a promissory note, filed
a complaint against defendants, Gregory L. Vician and
Michelle Vician. After a bench trial, the trial court awarded
plaintiffs $257, 586.12 on the note and $51, 014.78 in
attorney fees. Defendants appeal, arguing that (1) the trial
court abused its discretion when it arbitrarily disregarded
evidence in favor of defendants, (2) the trial court erred by
denying their motion for a directed finding, and (3) the
trial court erred by awarding attorney fees. For the
following reasons, we affirm.
2 I. BACKGROUND
3 Dolores and Edward are the parents of Gary, Gale, and
Gregory, who is married to Michelle.
4 A. Complaint
5 On April 30, 2014, plaintiffs filed a "Complaint on
Promissory Note" against defendants alleging the
following. Dolores and Edward loaned defendants $357, 586.12,
and in consideration for the loan, defendants signed a
promissory note executed on October 1, 2009, and delivered,
for value received. Defendants "agreed to pay such
Promissory Note under the terms set out therein." On
August 1, 2012, Dolores and Edward assigned the promissory
note to plaintiffs, "for consideration." Defendants
defaulted in payments owed on the promissory note and refused
to cure the default after a demand was made. The default
existed for more than one year. Plaintiffs sought principal,
interest, attorney fees, and costs.
6 The promissory note, attached to the complaint, provides:
BORROWER'S PROMISE TO PAY
In return for a loan that I have received, I promise to pay
U.S. $357, 586.12 (this amount is called
'Principal'), plus interest, to the order of the
Lender. The Lender is [sic] Edward S. Vician and
Dolores M. Vician. I will make all payments under this Note
in the form of cash, check or money order. $100, 000 of
Principal Balance is waived if Note is PAID AS AGREED.
understand that the Lender may transfer this Note." The
promissory note contains two signature lines. Defendants'
names appear under the signature lines, followed by the word
"Borrower." Signatures appear above the signature
7 B. Bench Trial
8 A bench trial was held on November 30, 2015. Dolores
testified as follows. In 1996 Dolores and Edward loaned
Gregory $125, 000, as evidenced by a 1996 mortgage signed by
Gregory and notarized. Dolores and Edward delivered the $125,
000 to Gregory. In addition, Dolores and Edward made two
loans to Gregory and Michelle: a loan for an undetermined
amount and, in November 2006, a loan for $130, 000.
9 Dolores further testified that on July 27, 2009, she and
Edward loaned Gregory and Michelle $363, 406.75, as evidenced
by a mortgage signed by Gregory and Michelle and notarized by
Jan Risch. On October 1, 2009, a promissory note was signed
by defendants in the presence of Dolores. The promissory note
was for a principal balance of $357, 586.12, reduced due to
payments that Gregory had made on the July 27, 2009, loan and
a lower interest rate. Dolores created and kept a loan
amortization schedule, and on this schedule and on a separate
ledger she recorded and gave credit for all payments made by
Gregory and Michelle. To make payments on the loan, Gregory
or Michelle deposited money into a Harris Bank account titled
in Gregory's and Gale's names. The Harris Bank
account statements were mailed to the home of Dolores and
Edward. Dolores used the monthly statements to keep track of
Gregory and Michelle's payments. These statements contain
account activity from May 23, 2008, through August 22, 2011,
and were admitted into evidence as plaintiffs' exhibit
10 Dolores also testified as follows. The Harris Bank
statements indicated that Gregory withdrew $16, 908.71 from
the account on August 3, 2011. From September 2011 through
March 2012, Gregory made payments on the loan by mailing
checks to his parents' home. Dolores deposited the checks
and recorded the payments on her ledger and loan amortization
schedule. After March 2012, neither Gregory nor Michelle made
any payments on the loan. The $16, 908.71 that was withdrawn
was never replaced. Because of Gregory's withdrawal, the
principal amount owed on the promissory note was the original
amount, $357, 586.12. Dolores was willing to waive her right
to interest on the promissory note from October 2009 to the
date of judgment, but she was not willing to waive her right
to postjudgment interest. Dolores testified that she and
Edward assigned the promissory note to Gary and Gale.
11 Gale testified as follows. Gale recognized Gregory's
signature on the promissory note. Dolores and Edward assigned
the promissory note to Gale and Gary for $10. Gale identified
the written assignment and recognized her signature on the
document. The assignment indicated that it was executed on