First American Bank v. Poplar Creek, LLC ( 2024 )

2024 IL App (1st) 230551No. 1-23-0551
Opinion filed June 21, 2024
Sixth Division
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
FIRST AMERICAN BANK, )
)
Plaintiff-Appellee, ) Appeal from the
) Circuit Court of
v.
) Cook County.
POPLAR CREEK, LLC; ESTATE OF GEORGE A. )
MOSER; DOUGLAS C. ALTENBERGER; GEORGE M. ) No. 17 CH 14974
MOSER; MARTIN WALSH; STONEGATE )
CONFERENCE AND BANQUET CENTRE, LLC; ) Honorable
UNKNOWN OWNERS; AND NONRECORD ) Patrick J. Heneghan,
CLAIMANTS,
) Judge, presiding.
Defendants, )
)
(Estate of George A. Moser, Douglas C. Altenberger, and )
George M. Moser, Defendants-Appellants). )
JUSTICE HYMAN delivered the judgment of the court, with opinion.
Presiding Justice Johnson and Justice C.A. Walker concurred in the judgment and
opinion.
OPINION
¶1 In supplemental collection proceedings, First American Bank (First American) recovered
a portion of a judgment against Poplar Creek, LLC (Poplar Creek), through a settlement with
a guarantor. The remaining guarantors then sought a finding under section 12-183 of the Code
1-23-0551
of Civil Procedure (735 ILCS 5/12-183 (West 2022)) that the judgment had been satisfied
when Poplar Creek assigned to First American as additional collateral a security interest in a
tax increment financing (TIF) note from the Village of Hoffman Estates. The guarantors argued
that (i) First American should have first applied payments it received from other sources to the
judgment and (ii) First American’s retention of a TIF note satisfied the judgment. The trial
court denied the petition.
¶2 We affirm. The trial court did not err in finding that (i) First American was not required to
sell the TIF note under the Uniform Commercial Code (UCC) (810 ILCS 5/1-101 et seq. (West
2022)) or principles of equity, (ii) retaining the TIF note did not satisfy the judgment, and
(iii) First American had discretion in applying payments and credits it received on the debt.
¶3 Background
¶4 First American made a commercial property loan to Poplar Creek in 2004, secured by a
mortgage lien and assignment of rents and the limited guarantees of Poplar Creek’s
managers—George A. Moser, Douglas C. Altenberger, George M. Moser, and Martin M.
Walsh, who is not a party to this appeal. (George A. Moser’s estate was substituted as a party.)
The guarantors’ obligations were limited “to the amount of ten percent (10.00%) of the
outstanding Obligations” plus interest, expenses including reasonable attorney’s fees, and “all
amounts reasonably necessary to protect, preserve and maintain the Premises (as defined in the
Loan Agreement), including without limitation amounts paid to other lien holders or
governmental entities.” The guaranties stated that “[a]ny amounts received by the Bank from
whatsoever source on account of the Obligations may be applied by it toward the payment of
such of the Obligations, and in such order of application, as the Bank may from time to time
elect.”
-2-
1-23-0551
¶5 In an amendment, Poplar Creek assigned a security interest to First American as additional
collateral in the form of a TIF note from the Village of Hoffman Estates. A pledge and security
agreement (TIF Pledge) memorialized the assignment. The TIF note had a principal amount of
up to $3,584,840 and provided the holder with annual interest payments of several hundred
thousand dollars from a portion of collected tax revenue. The TIF note provided:
“The note, together with the interest thereon, is a limited obligation of the Village,
payable solely and only from the collection of the Pledged Taxes and the amounts on
deposit in and pledged to the various funds and accounts as provided herein. No holder of
the note shall have the right to compel the exercise of any taxing power of the Village for
payment of principal thereof or interest thereon. The note does not constitute an
indebtedness of the Village or a loan of credit thereof within the meaning of any statutory
or constitutional provision.”
¶6 The TIF Pledge stated, “The bank shall not be obligated to make any sale of the TIF note
if it shall determine not to do so, regardless of the fact that notice of sale may have been given.”
¶7 Poplar Creek defaulted when the loan matured on September 1, 2017. First American
presented the TIF note to the Village and became its holder and registered owner. The Village
made four interest payments on the TIF note to First American between July 2019 and
November 2021, totaling $1,275,222.72, which First American applied toward the loan
balance, as required by the terms of the note. The TIF note expired on December 31, 2021,
with the Village’s expected final payment of about $386,000 coming in 2022.
¶8 In November 2017, First American sued Poplar Creek, the guarantors, and others to
foreclose the mortgage. Poplar Creek filed for bankruptcy, staying the foreclosure case against
it. First American filed a proof of claim for nearly $6.8 million in the bankruptcy case,
-3-
1-23-0551
representing amounts due on the loan as of May 15, 2018. The bankruptcy court approved the
claim and ordered a sale of the real property securing the loan. First American submitted a
credit bid of $2.1 million and applied it to the debt.
¶9 With the case against Poplar Creek stayed, First American moved for partial summary
judgment against the guarantors. After briefing, the trial court entered a written order granting
First American’s motion against each guarantor for $905,061.49 (which included 10% of the
outstanding principal or $658,700.21 plus $246,361.28 in real estate taxes First American paid)
as well as $1,000,832.44 in accrued interest, attorney’s fees, and costs. The trial court later
clarified that the judgment amounts for the accrued interest involved a single satisfaction
among the judgment debtors. The guarantors appealed, and this court affirmed. First American
Bank v. Poplar Creek, LLC, 2020 IL App (1st) 192450.
¶ 10 In supplementary proceedings, First American obtained $4,280,222.82 of the nearly $6.8
million owed on the loan, which included Walsh’s $905,000 settlement payment, the $2.1
million credit bid for the property, and the $1,275,222.72 in TIF note interest payments.
¶ 11 The three remaining guarantors filed a petition under section 12-183 of the Code of Civil
Procedure (735 ILCS 5/12-183 (West 2022)) for an order that the judgment had been satisfied.
The guarantors contended that (i) under the UCC and principles of equity, First American had
to either sell the TIF note or accept it as complete satisfaction of the judgment and (ii) First
American should have applied money it received from other sources to the judgment.
¶ 12 After briefing and discovery, the parties waived an evidentiary hearing and submitted a
joint statement of undisputed facts. The parties also submitted documentary exhibits,
affidavits, and deposition transcripts, including from their expert witnesses, who testified about
the value of the TIF note. First American’s expert, Mary O’Connor, averred the TIF note was
-4-
1-23-0551
a nonrecourse note because the Village had no obligation to pay principal or accrued interest
at the end of the agreement and opined that “there is no liquid public market for a contract of
this nature.” The guarantors’ expert, Howard Samuels, acknowledged the Village had no
obligation to pay principal under the TIF note but opined First American could have sold it
because “there’s a market for anything and everything.” Samuels admitted that he never tested
the TIF note’s market value, nor did he provide an amount the bank could have obtained.
¶ 13 A Village employee who managed the TIF note payments testified at a deposition that the
Village had never paid principal on the note because of insufficient tax revenues and the TIF
note did not contain a guarantee or obligation of payment, as the Village pays principal and
interest only if sufficient incremental tax revenues exist.
¶ 14 The trial court entered a written order denying the petition for satisfaction of judgment.
The court found that (i) First American had discretion under the guaranties to allocate
payments and credits as it saw fit, (ii) Illinois law did not require First American to apply the
payments and credits it received to the judgment against the guarantors rather than to the
principal debt, and (iii) double recovery was not an issue because the loan amount exceeded
the amount First American had recovered.
¶ 15 The trial court also rejected the guarantors’ argument that the UCC required First American
to sell the TIF note on the grounds that (i) the guarantors relied on permissive, not mandatory,
provisions of the UCC, (ii) the TIF Pledge gave First American discretion not to sell the TIF
note, and (iii) First American “acted in a commercially reasonable manner in retaining the TIF
Note and receiving the few remaining annual interest-only payments due under the Note.”
¶ 16 In addressing commercial reasonableness, the court listed the “known challenges and
obstacles” First American faced in trying to sell the TIF note, including “(1) it was an
-5-
1-23-0551
underperforming TIF Note; (2) no principal sum had ever been paid on the Note because of
insufficient tax revenue; (3) all of the interest that had accrued on the Note had not been paid
because of insufficient tax revenue; (4) the tax revenue to pay interest or principal was deficient
and stagnant; (5) the Village was only conditionally responsible for payments on the Note
(only if sufficient tax revenues existed); and (6) the TIF Note had only a limited remaining life
and was set to expire as of December 31, 2021.”
¶ 17 The court concluded equitable principles did not support the guarantors’ argument that
retaining the TIF note satisfied the judgment because (i) First American “exercised its rights
under the TIF Pledge” to become the holder and registered owner of the note, (ii) the
bankruptcy court acknowledged First American accepted the TIF note “ ‘[i]n partial
satisfaction’ ” of the judgment, and (iii) the guarantors’ “expert did not support their equitable
claim,” having confirmed the TIF note had limited value.
¶ 18 Analysis
¶ 19 A proceeding under section 12-183 determines whether all money due has been paid and a
judgment has been satisfied. Work Zone Safety, Inc. v. Crest Hill Land Development, L.L.C.,
2015 IL App (1st) 140088, ¶ 15. Once a judgment has been paid in full, the defendant becomes
statutorily entitled to receive a release. Otto Baum Co. v. Süd Family Ltd. Partnership, 2020
IL App (3d) 190054, ¶ 21.
¶ 20 Generally, a reviewing court will reverse a release of judgment only where the trial court
abused its discretion. Id. Abuse of discretion occurs when no reasonable person would take the
view adopted by the court. U.S. Bank National Ass’n v. Miller, 2020 IL App (1st) 191029,
¶ 33. An error of law can constitute an abuse of discretion. US Bank, National Ass’n v. Avdic,
-6-
1-23-0551
2014 IL App (1st) 121759, ¶ 18. We review de novo issues of statutory construction, which
are questions of law. Board of Education of Chicago v. Moore, 2021 IL 125785, ¶ 18.
¶ 21 Language of the TIF Pledge
¶ 22 The guarantors argue the trial court erred in finding that the TIF Pledge exempted First
American from having to sell the TIF note.
¶ 23 Contract construction seeks to give effect to the parties’ intent. Gallagher v. Lenart, 226
Ill. 2d 208, 232-33 (2007) (intent is not ascertained from detached portions of contract or clause
or provision but emerges from plain and ordinary meaning of contract’s language). Moreover,
courts interpret contracts “as a whole, viewing each part in light of the others.” Id. at 233.
¶ 24 The guarantors contend the trial court erred in its interpretation of the TIF Pledge provision
that First American “shall not be obligated to make any sale of the TIF Note if it shall determine
not to do so, regardless of the fact that notice of sale may have been given.” According to the
guarantors, First American cannot hold the note indefinitely without selling it, but should First
American give notice of a sale, it has no obligation to proceed with it. We disagree.
¶ 25 Under the guise of construing the provision, the guarantors twist unambiguous plain
language that gives First American unfettered discretion to retain the TIF note. Unless contrary
to public policy, which the guarantors do not argue, the provision must be enforced. See Village
of Oak Park v. Schwerdtner, 288 Ill. App. 3d 716, 719 (1997) (courts will not enforce contract
contrary to public policy as reflected in constitution, statutes, or judicial decisions).
¶ 26 The UCC
¶ 27 The guarantors argue that, under the UCC, a creditor that takes possession of collateral
must either (i) accept it in satisfaction of the judgment or (ii) sell it. They assert that First
-7-
1-23-0551
American did neither by retaining the TIF note while still trying to collect from the guarantors
and, thus, the judgment against them has been satisfied.
¶ 28 To arrive at their desired result, the guarantors construe the relevant UCC provisions
regarding accepting collateral as mandatory and apply the doctrine of in pari materia, which
views sections of a statute as a whole and gives them “harmonious effect.” Citizens Opposing
Pollution v. ExxonMobil Coal U.S.A., 2012 IL 111286, ¶ 24. According to the guarantors, the
UCC sections only have a “harmonious effect” if a creditor must choose between retaining the
collateral in satisfaction of the loan or selling it.
¶ 29 Section 9-609 of the UCC provides, “[a]fter default, a secured party *** may take
possession of the collateral.” (Emphasis added.) 810 ILCS 5/9-609(a)(1) (West 2022). Further,
under section 9-610(a), “[a]fter default, a secured party may sell, lease, license, or otherwise
dispose of any or all of the collateral in its present condition or following any commercially
reasonable preparation or processing.” (Emphasis added.) Id. § 9-610(a). Section 9-620(a)
specifies that “a secured party may accept collateral in full or partial satisfaction of the
obligation.” (Emphasis added.) Id. § 9-620(a). Once a secured party accepts collateral in full
or partial satisfaction of an obligation, then section 9-622(a) transfers to the secured party all
of the debtor’s rights in the collateral and discharges (i) the obligation to the extent consented
to by the debtor, (ii) the security interest, and (iii) other subordinate interest. Id. § 9-622(a).
¶ 30 The guarantors then point to comments 2 and 9 of section 9-620. After taking possession,
comment 2 says that section 9-620 “deal[s] with strict foreclosure, a procedure by which the
secured party acquires the debtor’s interest in the collateral without the need for a sale or other
disposition under Section 9-610.” 810 ILCS Ann. 5/9-620, Uniform Commercial Code
Comment 2 (Smith-Hurd 2022). Comment 9 says, “legislatures should conform those laws so
-8-
1-23-0551
that they mesh well with this section and Section 9-610, and courts should construe those laws
and this section harmoniously.” Id. cmt. 9. The guarantors assert that, because the comments
to section 9-620’s acceptance provisions mention section 9-610’s sale provision, the sections
together require a creditor to sell the collateral or retain it in complete satisfaction of the debt.
¶ 31 We reject the guarantors’ specious reading of the UCC. Sections 9-610 and 9-620,
specifically comment 5 to section 9-620, state the contrary of the guarantors’ position: “A
debtor’s voluntary surrender of collateral to a secured party and the secured party’s acceptance
of possession of the collateral does not, of itself, necessarily raise an implication that the
secured party intends or is proposing to accept the collateral in satisfaction of the secured
obligation under this section.” Id. cmt. 5. This defeats the guarantors’ contention that accepting
collateral satisfies a debt.
¶ 32 Moreover, had the legislature intended to impose a mandatory obligation on a creditor
regarding collateral, it could have done so as in section 9-620, which mandates the disposition
of consumer goods under certain circumstances. See 810 ILCS 5/9-620(e) (West 2022). The
legislature imposed no similar obligations on creditors regarding other types of collateral.
¶ 33 As for interpreting the word “may” in the article 9 UCC provisions as permissive, the
guarantors assert that case law supports a finding that, although a creditor “may” choose to sell
the collateral or retain it in satisfaction of the debt, it “must” choose between one of those two
options.
¶ 34 But the guarantors bypass that “may” will be construed to mean “shall” when the rights of
the public or third persons depend on exercising the duty to which it refers. Figures v. Swank,
128 Ill. App. 2d 211, 216 (1970). The UCC statutory provisions here do not involve public or
third parties’ rights, distinguishing the cases cited by the guarantors. For instance, in Bourke v.
-9-
1-23-0551
Grey Wolf Drilling Co., 2013 WY 93, ¶ 18, 305 P.3d 1164 (Wyo. 2013), the Wyoming
Supreme Court held that a statute stating that actions against nonresidents and foreign
corporations “may be brought” where the cause of action arose or where the plaintiff resides
was mandatory in the sense that a nonresident or foreign corporation must choose one of those
options. (Internal quotation marks omitted.) The article 9 provisions on which the guarantors
rely do not have similar language.
¶ 35 Moreover, the guarantors misconstrue section 9-620 to conclude that retaining collateral
means a creditor has “accepted” it in complete satisfaction of the debt obligation. Under that
section, acceptance requires more than retaining collateral to trigger the total or partial
satisfaction provision. As noted in comment 5 to section 9-620, “[t]o ensure that the debtor
cannot unilaterally cause an acceptance of collateral,” “acceptance does not occur unless, in
addition, the secured party consents to the acceptance in an authenticated record or sends to
the debtor a proposal.” 810 ILCS Ann. 5/9-620, Uniform Commercial Code Comment 5
(Smith-Hurd 2022). Nothing in the record suggests an agreement on accepting the collateral in
full or partial satisfaction of the obligation.
¶ 36 Thus, we find no support in the UCC for the guarantors’ illogical Catch-22 interpretation.
¶ 37 Commercial Reasonableness
¶ 38 The guarantors argue the trial court erred in considering whether First American’s decision
to retain the TIF note was commercially reasonable. According to the guarantors, commercial
reasonableness is irrelevant when a creditor has two choices—selling the collateral or
accepting it to satisfy the debt. As noted, the UCC does not impose that choice. (At oral
argument, counsel arguing for the guarantors conceded that our adopting their position would
make new law.) Moreover, under section 9-607, a secured creditor must act in a commercially
- 10 -
1-23-0551
reasonable manner when enforcing and collecting a security interest. 810 ILCS 5/9-607(c)
(West 2022).
¶ 39 Based on the testimony of the experts and the evidence, the trial court did not abuse its
discretion in finding that First American acted in a commercially reasonable manner by
retaining the TIF note.
¶ 40 First American’s expert opined that a nonrecourse note, like the TIF note, has “no liquid
public market” because the Village was not obligated to pay principal or accrued interest at the
end of the agreement. The guarantors’ expert, Howard Samuels, never placed a value on the
TIF note, opining it could be sold because “there’s a market for anything and everything.”
When reminded that the Village had no obligation to pay out the principal on the TIF note,
Samuels responded that he believes something has value until he is “told from somebody ***
that it doesn’t.” Despite stating that the market would determine the value of the TIF note,
Samuels acknowledged he did not attempt to determine what a buyer would pay for a TIF note
on which the Village had no obligation to make payments.
¶ 41 The guarantors also contend that the trial court ignored relevant cases that have held
retaining collateral is not commercially reasonable. But none of the cases involve collateral
that, as here, is a nonrecourse note. For instance, in In re Nardone, 70 B.R. 1010 (Bankr. D.
Mass. 1987), the debtor used a health spa’s equipment to partly secure a $50,000 loan. When
the debtor went out of business, the creditor continued to operate the health club under a
different name using the collateral. Id. at 1012. The bankruptcy court found that, by retaining
collateral that equaled or exceeded the debt, the creditor violated a statute requiring a creditor
to dispose of collateral in a commercially reasonable method, manner, time, and place. Id. at
1017.
- 11 -
1-23-0551
¶ 42 Similarly, in H.V. Funding, Inc. v. Ernest Vakkas & Sons, Inc., 531 N.Y.S.2d 484 (Dist.
Ct. 1988), after a defendant who leased phone equipment defaulted, the plaintiff repossessed
and retained the equipment and sought the balance due under the lease. The trial court found
this violated the UCC by not disposing of the equipment in a commercially reasonable manner
after notice to the debtor. Id. at 486.
¶ 43 Unlike Nardone and H.V. Funding, the TIF note’s value does not equal or exceed the debt.
Indeed, based on the expert witnesses’ deposition testimony, it had almost no fair market value,
as the Village did not have to make payments on it. The note’s value solely depended on the
annual interest payments the Village paid to First American until the note expired. Thus, First
American’s decision to retain the TIF note, collect interest payments, and apply them to the
debt was commercially reasonable.
¶ 44 Also without merit is the guarantors’ contention that First American’s retention of the TIF
note created a rebuttable presumption that its value was equal to the judgment. The guarantors
rely on section 9-626 of the UCC (810 ILCS 5/9-626 (West 2022)). Under that section, when
a deficiency exists and the secured party fails to prove collection, enforcement, disposition, or
acceptance was conducted in accord with the UCC, “the amount of proceeds that would have
been realized is equal to the sum of the secured obligation, expenses, and attorney’s fees unless
the secured party proves that the amount is less than that sum.” Id. § 9-626(4). Based on the
evidence, the TIF note was worth no more than the remaining interest payments, discounted
for time and risk. Thus, the trial court did not abuse its discretion in holding that First American
did not have to sell the TIF note and that retaining it did not satisfy the judgment.
¶ 45 Principles of Equity
- 12 -
1-23-0551
¶ 46 The guarantors contend that, the UCC aside, principles of equity require First American’s
decision to retain the TIF note to qualify as satisfying the judgment. For support, the guarantors
primarily rely on Heller v. Lee, 130 Ill. App. 3d 701 (1985), and International Supply Co. v.
Campbell, 391 Ill. App. 3d 439 (2009). But in both Heller and International Supply, the courts
determined that retaining collateral that had value and seeking to enforce the judgment
constituted a windfall. First American has not obtained a windfall because the amount owed
far exceeds the TIF note’s meager (at best) value.
¶ 47 In Heller, after the trial court entered a monetary judgment for the plaintiff, the defendant
posted an appeal bond consisting of a deed to real property and a certificate of deposit. Heller,
130 Ill. App. 3d at 702. After the bond was released, the plaintiff received the certificate of
deposit and took title to the property but only applied the value of the certificate of deposit
against the judgment. The plaintiff filed collection proceedings on the deficiency. The
defendants sought release from the judgment and return of excess on the bond under section
12-813. The trial court dismissed the petition. Id. We found retaining the property caused “a
windfall,” entitling the defendants to equitable relief. Id. at 703. The court remanded with
directions “to sell the property, apply the proceeds to the judgment, and remit the excess, if
any, to the defendants.” Id.¶ 48 In International Supply, the plaintiffs assisted the defendants in securing loans for a land
development in exchange for a personal guaranty and escrow of two property deeds.
International Supply, 391 Ill. App. 3d at 441-42. After the defendants defaulted, the plaintiffs
took title to the properties and sued to enforce the guaranty. On appeal, the court explained
that, by taking “full ownership and control” of the collateral properties, the plaintiffs accepted
- 13 -
1-23-0551
the properties “as substitute performance in full satisfaction of defendants’ obligation under
the personal guaranty” and were not entitled to further damages. Id. at 451.
¶ 49 The guarantors also argue that they expected the TIF note to satisfy the judgment. But
under the TIF note and pledge, the guarantors’ expectation that First American would sell the
TIF note was unreasonable. The TIF Pledge agreement, which governs First American’s
obligation, does not obligate First American “to make any sale of the TIF note if it shall
determine not to do so.” And the guarantors knew the Village did not have to pay principal on
the note, and after the project was abandoned, the TIF note had immensely less value than
initially contemplated.
¶ 50 Payments From Other Sources
¶ 51 The guarantors contend the trial court erred in finding that First American did not have to
apply payments it received from other sources toward their judgment. The guarantors argue
the trial court improperly relied on the language of the guaranties in finding that First American
had discretion in deciding how to allocate the payments and credits it received because, under
the merger doctrine, the guaranties merged with the judgment.
¶ 52 Looking first to the guaranties, they gave First American authority to apply payments
toward the debt “in such order *** as the Bank may from time to time elect.” So, the guaranties
did not require First American to first apply the payments toward the judgments.
¶ 53 Under the merger doctrine, when a court enters a judgment on a contract or other
instrument, the instrument merges into the judgment, loses all of its vitality, and ceases to bind
the parties to its execution. Poilevey v. Spivack, 368 Ill. App. 3d 412, 414 (2006) (citing Doerr
v. Schmitt, 375 Ill. 470, 472 (1941)). Once merged, the parties can maintain no further action
on the instrument at law or in equity. Id. (citing Doerr, 375 Ill. at 472). The merger doctrine
- 14 -
1-23-0551
applies only “ ‘to causes of action to bar relitigation of the same cause.’ ” (Emphasis in
original.) Id. at 415 (quoting Stein v. Spainhour, 196 Ill. App. 3d 65, 70 (1990)). It “does not
prevent a court from looking ‘beyond the judgment to see upon what it is founded, to give the
judgment its just effect.’ ” Id. at 416 (quoting Meeker v. Gray, 142 Ill. App. 3d 717, 726
(1986)).
¶ 54 In Stein, the court found that the merger doctrine did not apply because the plaintiff’s claim
did not relitigate the defendant’s liability under the contract but, instead, “sought attorney fees
which are ancillary to the primary cause of action.” Stein, 196 Ill. App. 3d at 70. Similarly, in
denying the guarantors’ section 12-183 petition, the trial court did not relitigate their liability
but gave effect to the judgment based on their guaranties. So, the merger doctrine did not
prevent the trial court from looking at the language of the guaranties.
¶ 55 Finally, the guarantors do not cite authority holding that, in collecting on a debt, a creditor
must first apply payments it receives toward a judgment against guarantors. The cases they
rely on are factually distinguishable, involving the long-standing rule against double recovery.
See Marks v. L.C.J. Construction Co., 89 Ill. App. 3d 418, 421 (1980) (assignment of judgment
to strawman purchaser discharged judgment because it was paid in full to person authorized to
receive it); Popovich v. Ram Pipe & Supply Co., 82 Ill. 2d 203, 209 (1980) (refusing to give
effect to loan agreement to extent that it would have allowed double recovery). Double
recovery, however, is not an issue.
¶ 56 Comment on Parties’ Briefs
¶ 57 The language and tone of the briefs at times veered into the hyperbolic and combative. We
are aware this case has a long history and that counsel have vigorously represented their clients’
- 15 -
1-23-0551
interests. Effective advocacy, however, never warrants impertinence, which is
counterproductive and distracting.
¶ 58 Affirmed.
- 16 -
1-23-0551
First American Bank v. Poplar Creek, LLC, 2024 IL App (1st) 230551Decision Under Review: Appeal from the Circuit Court of Cook County, No. 17-CH-
14974; the Hon. Patrick J. Heneghan, Judge, presiding.
Attorneys Timothy R. Herman, of Clark Hill PLC, of Chicago, for
for appellant Estate of George A. Moser.
Appellant:
Charles R. Bernardini and Seth A. Horvath, of Nixon Peabody
LLP, of Chicago, for appellant Douglas C. Altenberger.
Cornelius P. Brown and Amy E. Daleo, of Cohon Raizes &
Regal LLP, of Chicago, for other appellant.
Attorneys Neal H. Levin, of Rimon P.C., and Shira R. Isenberg, of Smith,
for Gambrell & Russell, LLP, both of Chicago, for appellee.
Appellee:
- 17 -