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Vician v. Vician

Court of Appeals of Illinois, Second District

September 27, 2016

GARY VICIAN and GALE VICIAN, Assignees of Edward Vician and Dolores Vician, Plaintiffs-Appellees,
v.
GREGORY L. VICIAN and MICHELLE VICIAN, Defendants-Appellants.

          Rehearing denied October 28, 2016

         Appeal from the Circuit Court of McHenry County, No. 14-LA-127; the Hon. Thomas A. Meyer, Judge, presiding.

         Affirmed.

          Carponelli Law Office, LLC, of Hoffman Estates (Ross S. Carponelli, of counsel), for appellants.

          Ward 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.

          OPINION

          McLAREN JUSTICE.

         ¶ 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:

         "1. 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.

         I 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 lines.

         ¶ 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 No. 15.

         ¶ 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 ...


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