Northbrook Bank & Trust Co. v. Abbas

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Appellate Court Date: 2018.07.11

15:30:06 -05'00'

Northbrook Bank & Trust Co. v. Abbas, 2018 IL App (1st) 162972

Appellate Court NORTHBROOK BANK & TRUST COMPANY, as Successor in

Caption Interest to First Chicago Bank & Trust, Plaintiff-Appellee, v. JOSEPH

ABBAS and ALAN L. FREEMAN, Defendants (Joseph Abbas,

Defendant- Appellant).

District & No. First District, Fifth Division

Docket No. 1-16-2972

Filed March 30, 2018

Decision Under Appeal from the Circuit Court of Cook County, No. 15-L-50452; the

Review Hon. Raymond W. Mitchell, Judge, presiding.

Judgment Affirmed.

Counsel on Michael W. Tootooian, of Chawla & Ravani, P.C., of Chicago, for

Appeal appellant.

Adam C. Toosley, of Freeborn & Peters LLP, of Chicago, for

appellee.

Panel PRESIDING JUSTICE REYES delivered the judgment of the court,

with opinion.

Justices Hall and Rochford concurred in the judgment and opinion.

OPINION

¶1 Following a bench trial, the circuit court of Cook County entered judgment in favor of

plaintiff, Northbrook Bank & Trust Company as successor in interest to First Chicago Bank &

Trust on its breach of contract action.1 In so doing, the circuit court found defendant Joseph

Abbas (defendant) and his codefendant Alan Freeman in breach of a $1.8 million loan

agreement.2 On appeal, defendant contends that the trial court erred by (1) allowing plaintiff to

present certain documents not previously disclosed, (2) concluding plaintiff had standing, and

(3) awarding plaintiff attorney fees. For the reasons that follow, we affirm.

¶2 BACKGROUND

¶3 Plaintiff filed its complaint alleging defendant and Freeman were in breach of a loan they

had personally guaranteed and caused plaintiff damages in excess of $1.4 million in unpaid

principal, interest, and fees. Plaintiff further sought attorney fees and costs. The operative

second amended verified complaint alleged that defendant and Freeman had entered into a

term loan agreement with First Chicago Bank & Trust whereby they received $1,880,000.

Defendant and Freeman were required to make monthly interest payments and to repay the

loan in full by September 16, 2015. Germane to this appeal, four mortgages were pledged as

collateral for the loan on certain properties, two of which were located in Illinois, one in

Michigan, and one in Florida. In addition, Freeman signed a pledge agreement in which he

pledged 44,500 shares of Facebook stock as collateral. The pledge agreement provided that

selling these shares without first notifying First Chicago Bank & Trust would result in a breach

of the loan agreement.

¶4 Regarding its standing, plaintiff alleged that subsequent to the loan agreement the Illinois

Department of Financial and Professional Regulation, Division of Banking, closed First

Chicago Bank & Trust and appointed the Federal Deposit Insurance Corporation (FDIC) as the

receiver. Thereafter, on July 8, 2011, the FDIC and plaintiff entered into a purchase and

assumption agreement whereby plaintiff became the owner of a substantial portion of the

assets of First Chicago Bank & Trust, including the loan agreement at issue in this case.

¶5 The operative complaint further alleged the following acts of default occurred. In July

2015, Freeman sold his Facebook shares in violation of the pledge agreement. In addition,

defendant and Freeman failed to make interest payments for July and August 2015 in violation

of the terms of the loan agreement. Then, when the loan matured, defendant and Freeman did

not pay the amounts that were due and owing in full.

¶6 The following documents were attached as exhibits to the operative complaint: (1) the first

page of the purchase and assumption agreement between the FDIC and plaintiff, (2) the loan

agreement, (3) the pledge agreement, and (4) a notice of default.

¶7 In response, defendant filed an unverified answer to the complaint, denying he breached

the loan agreement. Thereafter, plaintiff served defendant with interrogatories and a document

production request; however, neither were answered prior to trial.

1

First Chicago Bank & Trust is not a party to this appeal.

2

Defendant Alan Freeman is not a party to this appeal.

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¶8 After it appeared the parties would not settle, the trial court set the matter for a bench trial

to commence on June 1, 2016. Subsequently, plaintiff filed a motion for summary judgment.

The parties entered into a briefing schedule, but before the hearing on the motion and three

weeks prior to trial, defense counsel withdrew. Despite the trial court’s best efforts to keep the

trial on schedule, it ultimately granted defendant’s emergency motion to continue and reset the

bench trial for August 15, 2016.

¶9 In the meantime, the parties briefed the motion for summary judgment, argument was

heard, and the trial court issued a written memorandum opinion denying the motion for

summary judgment. The trial court found there was a genuine issue of material fact as to

whether the purchase and assumption agreement between the FDIC and plaintiff included the

loan at issue. The trial court expressly observed that the singular page of the purchase and

assumption agreement provided by plaintiff only mentioned that “certain” assets and deposits

were being assumed by plaintiff and plaintiff did not provide any documentation that

conclusively demonstrated it had assumed defendant’s loan.

¶ 10 Less than a week before trial, defendant filed numerous motions including (1) a motion to

dismiss pursuant to section 2-619(a)(9) of the Code of Civil Procedure (735 ILCS

5/2-619(a)(9) (West 2014)), (2) a motion to continue the trial, (3) a motion for leave to add an

affirmative defense, (4) a motion in limine to bar plaintiff from introducing any evidence it had

not already produced, and (5) a motion in limine to bar any evidence related to plaintiff’s

ownership of the loan. The trial court denied the motion to dismiss and the motion to continue.

The trial court, however, granted defendant leave to amend the answer to assert the affirmative

defense of lack of standing but reserved judgment on the motions in limine. The matter then

proceeded to trial, where the following testimony was elicited.

¶ 11 Jeff Galus, senior vice president of Wintrust Financial, testified that plaintiff is a subsidiary

of Wintrust Financial and he personally managed the loan at issue in this case. Galus testified

to the terms of the loan agreement as set forth in the complaint and further explained that First

Chicago Bank & Trust originated the loan but was later shut down and the FDIC became the

receiver. Subsequently, plaintiff acquired the loan from the FDIC through a purchase and

assumption agreement in July 2011. In December 2013, the loan was modified pursuant to a

request from Freeman for plaintiff to release the mortgage on one property that was collateral

for the loan agreement in exchange for a $500,000 principal payment. Thereafter, two new

pieces of property (one located in Cook County and the other in Lake County) were substituted

as collateral for the one property previously identified in the loan agreement. According to

Galus, plaintiff was listed as the mortgagee on these mortgages.

¶ 12 In regards to the default on the loan, Galus testified that monthly interest payments were

made on the loan to plaintiff from July 2011 (when plaintiff acquired the loan) until June 2015.

No payments were made for July and August 2015, nor was the full principal balance paid in

full when the loan matured on September 16, 2015.

¶ 13 Galus further testified regarding the numerous documents related to the loan at issue,

which he averred were kept in the ordinary course of business by plaintiff. He further testified

that he had access to and was familiar with the documents. These records included the

purchase and assumption agreement, the schedule of loans, the loan documents, an allonge,

and the history of the transactions involving the loan.

¶ 14 Regarding the purchase and assumption agreement, Galus testified that it was a true and

accurate copy but was not entirely complete because parts of it were redacted to preserve

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confidentiality. Galus also testified that the schedule of loans (which was referenced in the

purchase and assumption agreement) was a true and accurate copy of the document. The

schedule of loans identified the loan at issue in this case as being one of the assets acquired by

plaintiff through the FDIC’s receivership of First Chicago Bank & Trust. In addition, Galus

testified that plaintiff was provided a power of attorney, which was granted at the time of the

acquisition of the loan from the FDIC. Galus further testified that, in regards to this loan and

pursuant to the power of attorney, he executed an allonge on behalf of the FDIC. Galus

testified that the allonge that was provided was a true and accurate copy. While the allonge was

not dated, it was signed by Galus as attorney in fact for the FDIC.

¶ 15 Galus also testified he personally prepared a payoff statement, which indicated the

amounts due as of August 15, 2016, included $1,380,000 in principal, $132,020 in interest

(with a per diem of $306.67), $803.47 in late fees, and $3807 in other fees associated with the

loan for a total of $1,516,630.47.

¶ 16 On cross-examination, Galus testified he first became familiar with the loan in December

2013 and admitted he did not participate in the FDIC transaction. Galus further acknowledged

that the allonge was a one-page document that was not attached to the note. Regarding the

allonge, Galus testified he was authorized to sign the allonge on behalf of the FDIC as its

attorney in fact via a power of attorney. Galus, however, did not have a copy of the power of

attorney and did not know the date it was executed or when it expired. Galus further testified he

signed the assignment and allonge in November or December 2015. Galus also testified that

the purchase and assumption agreement does not include the schedule of loans. Galus

explained, however, that it is not the FDIC’s practice to include a schedule of loans with the

purchase and assumption agreement.

¶ 17 On redirect, Galus testified that he personally managed hundreds of loans from other failed

banks. In all those transactions a purchase and assumption agreement was utilized and on

occasion was a schedule of the assumed assets attached.

¶ 18 Next, Freeman testified for the defense that initially his loan was with First Chicago Bank

& Trust. Subsequently it was transferred to plaintiff, and he worked directly with Kevin Fraley

(one of plaintiff’s loan managers) and then Galus. Freeman testified he had a conversation with

Fraley wherein Freeman disclosed that he sold some Facebook stock. In response, Fraley

indicated selling the stock was “okay” because there was “so much other collateral.” No

documents, however, were ever signed evidencing this conversation. Freeman also testified

that he made monthly interest payments to plaintiff for 4½ years. The defense then rested, and

the trial court took the matter under advisement.

¶ 19 While the trial court was still considering the matter, plaintiff filed a petition for attorney

fees, seeking $160,712.40 in fees and $15,359.26 in costs for a total of $176,071.66 pursuant to

a fee-shifting provision in the loan agreement. Of these monetary sums being requested,

$76,957 in fees and $5000 in costs were incurred during the course of the litigation. The

remaining attorney fees plaintiff sought were incurred prior to litigation and in the four

separate foreclosure actions associated with the loan agreement. Plaintiff attached to its

petition, in pertinent part, (1) detailed time entries related to (a) the 2013 modification of the

loan agreement, (b) the instant lawsuit, (c) the Cook County foreclosure case, (d) the Lake

County foreclosure case, (e) the Michigan foreclosure case, and (f) the Florida foreclosure

case and (2) an affidavit of Edward L. Filer attesting to the hourly rates of those attorneys

working on these matters and the amount of time billed.

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¶ 20 After having considered all of the evidence presented by the parties, the trial court

thereafter issued a written memorandum and opinion finding in favor of plaintiff on its breach

of contract claim. The trial court specifically found that plaintiff established there was a valid

loan agreement between defendant, Freeman, and First Chicago Bank & Trust and that

defendant and Freeman defaulted under the terms of the loan by failing to make monthly

interest payments and failing to pay the outstanding balance on the maturity date. 3 The trial

court further found that plaintiff established it was a successor in interest to the loan

agreement, having acquired the loan from the FDIC through the purchase and assumption

agreement after First Chicago Bank & Trust went into receivership. In issuing its ruling, the

trial court also indicated that defendant’s motion in limine to bar evidence outside the trial

exhibit list provided in June 2016 was denied.

¶ 21 The trial court further granted plaintiff’s petition for attorney fees finding the language of

the loan agreement permitting attorney fees and costs as “broad.” Furthermore, trial court

noted the petition and the supporting affidavit and invoices, setting forth the attorney fees and

costs were reasonable and recoverable. This appeal followed.

¶ 22 Mootness

¶ 23 At oral argument, when questioned regarding the status of the related foreclosure matters,

plaintiff’s counsel informed the court that all of the amounts due and owning had been

satisfied, including attorney fees and postjudgment interest, and the foreclosure suits resolved.

As a result of this revelation, we ordered the parties to file supplemental briefs addressing the

question of whether the matter before the court was moot. Accordingly, we first turn to address

whether the matter is moot in light of the full satisfaction of the judgment.

¶ 24 “This court will not review cases merely to establish a precedent or guide future litigation.”

Madison Park Bank v. Zagel, 91 Ill. 2d 231, 235 (1982). The fact that a case is pending on

appeal when events render an issue moot does not alter this conclusion. Dixon v. Chicago &

North Western Transportation Co., 151 Ill. 2d 108, 116 (1992); Bluthardt v. Breslin, 74 Ill. 2d

246, 250 (1979). An issue is moot if no actual controversy exists or where events transpire that

make it impossible for the court to grant effectual relief. Dixon, 151 Ill. 2d at 116. Nonetheless,

when an intervening event occurs making it impossible for a reviewing court to grant relief to

any party, the case is rendered moot because a ruling on the issue cannot have any practical

effect on the controversy. In re Tekela, 202 Ill. 2d 282, 292-93 (2002). In this instance, we

ordered the parties to submit with their supplemental briefs regarding the mootness issue

documentation they believed to be relevant. We observe that a reviewing court can take

judicial notice of such events or facts that, while not appearing in the record, disclose that an

actual controversy no longer exists between the adverse parties. Dixon, 151 Ill. 2d at 116-17.

¶ 25 Here, the parties do not dispute that while the appeal was pending the judgment at issue

was fully satisfied and the documents produced by the parties support this contention. In

Illinois, “it is well established that the payment or satisfaction of a money judgment by a

judgment debtor does not bar the prosecution of *** an appeal by such judgment debtor.”

Pinkstaff v. Pennsylvania R.R. Co., 31 Ill. 2d 518, 523 (1964); In re Marriage of Sobieski, 2013

3

The trial court further found that Freeman testified credibly regarding plaintiff’s oral

representations about the sale of his Facebook stock and accordingly did not find it was an act of

default.

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IL App (2d) 111146, ¶ 28; Briarcliffe West Townhouse Owners Ass’n v. Wiseman

Construction Co., 118 Ill. App. 3d 163, 173 (1983) (“The payment of a judgment does not

preclude that party from appealing from the judgment.”). When a judgment has been

voluntarily paid or its benefits accepted, the basis for the appeal is waived. Mirar

Development, Inc. v. Kroner, 308 Ill. App. 3d 483, 486 (1999) (citing County of Cook v.

Malysa, 39 Ill. 2d 376, 379-80 (1968) (“[T]he general rule in civil cases [is] that when a

judgment has been voluntarily paid or its benefits accepted the question becomes moot.”)).

Thus, the question here is, under these particular set of facts, is whether the satisfaction of the

judgment was compulsory or voluntary.

¶ 26 Plaintiff contends that the payment of the judgment was voluntary and therefore the matter

is moot. According to plaintiff, no appeal bond was posted by defendant, and upon satisfaction

of the judgment the four mortgage foreclosure cases referenced were dismissed with prejudice,

the mortgages that were pledged as collateral were released, and the recorded judgment was

released. Plaintiff asserts that, had the payment of the judgment not been voluntary, it would

not have released the mortgages that were collateral for the loan agreement. Plaintiff maintains

that the release of its security interest in the mortgages should be considered a “supervening

event” that moots the appeal, as defendant and Freeman received and accepted the benefit of

those mortgages being released.

¶ 27 In response, defendant argues that the satisfaction of the judgment was compulsory where

defendant was faced with a judgment order, collection proceedings, and a wage garnishment.

Defendant further asserts that he was obligated to pay the judgment where statutory interest

would continue to accrue unless it was paid in full.4

¶ 28 We conclude the satisfaction of the judgment in this case was compulsory. After the

judgment was entered, plaintiff commenced collection proceedings, which included citations

to discover assets and a request for defendant’s wages to be garnished. Plaintiff even filed a

motion to compel citation examination and production before the circuit court. Once the

judgment was paid in July 2017, the citation proceedings were dismissed. Under these

circumstances, it is evident that the payment of the judgment was compulsory in nature, and

thus the payment of the judgment does not render this appeal moot. See Sobieski, 2013 IL App

(2d) 111146, ¶ 33 (appeal not moot where the husband made payments pursuant to a court

order and the wife could have sought an execution of the judgment); Long v. Tranka, 146 Ill.

App. 3d 428, 431 (1986) (appeal not moot where the defendant paid the judgment in full under

threat of court order).

¶ 29 Furthermore, we observe that the supplemental briefing did not adequately indicate who

actually paid the judgment or, if the judgment was paid by both defendant and Freeman, how

much each party contributed. Where, as here, defendant and Freeman are jointly and severably

liable for a judgment, a party who pays more than his or her share of the joint indebtedness can

maintain an action for contribution from his or her codefendant. Ruggio v. Ditkowsky, 147 Ill.

App. 3d 638, 642 (1986). Thus, even if we were to find that this appeal is moot, a finding that

we do not render, we could not dismiss this appeal and leave in effect a potentially erroneous

4

We observe that defendant raises new arguments in his supplemental response brief regarding the

propriety of postjudgment attorney fees paid to plaintiff. As this issue was not raised in his opening

brief, we decline to address it and consider the issue to be forfeited. See Ill. S. Ct. R. 341(h)(7) (eff. July

1, 2017).

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order that might adversely affect the rights of the parties. See Midwest Bank & Trust Co. v.

Roderick, 132 Ill. App. 3d 463, 466-67 (1985). Accordingly, we now turn to examine the

merits of this appeal.

¶ 30 ANALYSIS

¶ 31 On appeal, defendant contends that the trial court erred by (1) allowing plaintiff to present

certain documents not previously disclosed, (2) concluding plaintiff had standing, and

(3) awarding plaintiff attorney fees. Prior to addressing defendant’s claims, we acknowledge

that both parties asserted that portions of the other party’s brief should be stricken for varied

reasons. We, however, decline to strike any portion of either party’s brief. We now turn to

consider defendant’s arguments.

¶ 32 Undue Surprise

¶ 33 Defendant first contends that the trial court should not have allowed plaintiff to present

certain documents demonstrating the transfer of ownership by the FDIC to plaintiff during the

trial because these documents were not previously disclosed and caused him undue surprise.

¶ 34 We initially note that, in violation of Illinois Supreme Court Rule 341(h)(7) (eff. July 1,

2017), defendant does not set forth the applicable standard of review for his unique claim of

error. We observe that defendant is not alleging that the trial court abused its discretion when it

denied his motion in limine regarding these documents, nor is he arguing that these documents

were inadmissible. Instead, he frames his claim as a type of discovery violation, yet at the same

time acknowledges that he did not engage in discovery so the Illinois Supreme Court Rules on

discovery do not apply. “A reviewing court is entitled to have the issues clearly defined and

supported by pertinent authority and cohesive arguments; it is not merely a repository into

which an appellant may ‘dump the burden of argument and research,’ nor is it the obligation of

this court to act as an advocate or seek error in the record.” U.S. Bank v. Lindsey, 397 Ill. App.

3d 437, 459 (2009). Consequently, we are not obliged to make his arguments for him;

therefore, whether we consider his claim of error to be one that is premised on a discovery

violation or the improper admission of evidence, the standard of review is the same.

Accordingly, we turn to review defendant’s claims for an abuse of discretion. See In re J.D.,

332 Ill. App. 3d 395, 402 (2002); Kimble v. Earle M. Jorgenson Co., 358 Ill. App. 3d 400, 408

(2005).

¶ 35 The goal of the discovery process in Illinois is full disclosure. Payne v. Hall, 2013 IL App

(1st) 113519, ¶ 13. To that end, “[t]he objectives of pretrial discovery are to enhance the

truth-seeking process, to enable attorneys to better prepare for trial, to eliminate surprise[,] and

to promote an expeditious and final determination of controversies in accordance with the

substantive rights of the parties.” D.C. v. S.A., 178 Ill. 2d 551, 561 (1997).

¶ 36 Defendant asserts that the late tendering of these documents prejudiced him because it

provided him with no time to prepare a defense to the documents. Defendant, however, chose

not to participate in pretrial discovery, placing the entire burden on plaintiff, and now

complains that his failure to do so has led to an unjust result. In addition, our review of the

record reveals that defendant was not surprised when plaintiff produced the documents

evidencing its ownership of the loan agreement for use during the August trial. In fact,

defendant was prepared to challenge plaintiff’s standing at trial. The record reflects that

defendant was fully aware that plaintiff would be presenting such documentation where, just

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prior to the August trial, the trial court denied plaintiff’s motion for summary judgment,

finding there was a genuine issue of material fact as to plaintiff’s standing. Specifically, the

trial court observed that the single page of the purchase and assumption agreement was not

convincing evidence. Thus, it could not have been a surprise when plaintiff produced the

complete (albeit redacted) purchase and assumption agreement for the August trial. Second, a

week before the August trial, defendant filed a motion requesting leave to amend its answer to

include the affirmative defense of lack of standing (which the trial court subsequently granted

on the day trial commenced). Therefore, defendant could not have been caught unawares when

plaintiff produced documents evidencing its standing thereafter.

¶ 37 We find the cases on which defendant relies to be inapposite. Defendant asserts that U.S.

Bank, N.A. v. Kosterman, 2015 IL App (1st) 133627, ¶ 13, supports his position because it

“held that although the plaintiff claimed the records were too numerous to make them available

to defense counsel, the defendants were entitled to at least some access to the records, and not

to untimely disclose documents that would hinder the defendants’ rebuttal opportunity.”

Kosterman, however, is wholly distinguishable from the case at bar. First, unlike defendant

here, the Kosterman defendants raised the affirmative defense of lack of standing in their

answer to the complaint. Id. ¶ 8. Second, the parties engaged in formal discovery while the

plaintiff’s motion for summary judgment was being briefed, which included document and

deposition requests. Id. ¶¶ 12-14. Third, the Kosterman plaintiff failed to comply with the

defendants’ discovery requests asserting that the documents it needed to produce were too

voluminous and did not provide the defendants with sufficient access to the documents in

preparing their response to the plaintiff’s motion for summary judgment. Id. ¶ 13. Fourth, the

Kosterman plaintiff based its failure to participate in discovery on the erroneous ruling of the

trial court striking the defendants’ affirmative defense. Id. ¶ 16. Accordingly, it was under

these circumstances that the reviewing court concluded that the defendants “never even had an

opportunity to explore their defenses” and ultimately reversed the trial court’s dismissal of

their affirmative defenses. Id. ¶¶ 15, 20.

¶ 38 Defendant also relies on Fortae v. Holland, 334 Ill. App. 3d 705 (2002). In Fortae,

although the defendants timely made the disclosure of their opinion witness, within a week of

the trial and after the disclosure date passed, the defendants filed supplemental discovery

notifying the plaintiff that their opinion witness would be testifying to new material facts. Id. at

712. The trial court denied the defendants’ request, finding it to be untimely. Id. The reviewing

court affirmed. Id. at 713. Unlike the Fortae defendants, in the case at bar plaintiff did not seek

to disclose new expert opinions on the day of trial. Consequently, Fortae is inapposite.

¶ 39 We conclude that plaintiff’s supplementation of its trial exhibits to include documents that

reflected its ownership of the loan did not prejudice defendant where he was the one who

placed plaintiff’s standing at issue and then failed to request discovery. Therefore, the trial

court was within its discretion when it allowed plaintiff to utilize the documents during the

trial. Defendant, however, does contest the admissibility of these documents, which we next

address.

¶ 40 The Manifest Weight of the Evidence

¶ 41 Defendant challenges the trial court’s judgment finding in favor of plaintiff on the breach

of contract action. The trial court’s findings are entitled to great weight and will not be reversed

unless they are against the manifest weight of the evidence. Voutiritsas v. Intercounty Title Co.

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of Illinois, 279 Ill. App. 3d 170, 183 (1996). “A finding is against the manifest weight of the

evidence only when an opposite conclusion is apparent or when the finding appears to be

unreasonable, arbitrary, or not based on the evidence.” Amcore Bank, N.A. v.

Hahnaman-Albrecht, Inc., 326 Ill. App. 3d 126, 135 (2001).

¶ 42 In Illinois, a breach of contract claim consists of (1) the existence of a valid and

enforceable contract, (2) breach of the contract by the defendant, (3) performance by the

plaintiff, and (4) resulting injury to the plaintiff. Lindy Lu LLC v. Illinois Central R.R. Co.,

2013 IL App (3d) 120337, ¶ 21.

¶ 43 Here, defendant does not argue that the loan agreement was not valid and enforceable or

that he did not breach the contract or even that plaintiff did not perform. Instead, defendant

solely maintains that the trial court’s ruling was against the manifest weight of the evidence

where the evidence did not demonstrate that plaintiff was the rightful owner of the loan. For

the reasons that follow, we disagree and conclude the trial court’s finding in regard to

plaintiff’s standing was not against the manifest weight of the evidence.

¶ 44 “The doctrine of standing is designed to preclude persons who have no interest in a

controversy from bringing suit” and “assures that issues are raised only by those parties with a

real interest in the outcome of the controversy.” Glisson v. City of Marion, 188 Ill. 2d 211, 221

(1999). “[S]tanding requires some injury in fact to a legally cognizable interest.” Id. Because

standing is an affirmative defense, “it is the defendant’s burden to prove that the plaintiff does

not have standing.” (Emphasis in original.) Parkway Bank & Trust Co. v. Korzen, 2013 IL App

(1st) 130380, ¶ 24. In other words, “[i]t is not the plaintiff’s burden to prove it does have

standing.” Id.

¶ 45 Defendant does not raise an argument as to how plaintiff does not have standing in this

case. Instead, defendant attacks the admissibility of the documents plaintiff introduced at trial

that evidenced its ownership of the loan. Defendant first argues that plaintiff failed to provide

an adequate foundation for the following business records: (1) the purchase and assumption

agreement; (2) the schedule of loans; (3) the loan agreement; (4) the allonge; and (5) the loan

transaction history (collectively loan records). The determination that records are admissible as

business records rests within the sound discretion of the circuit court. In re Estate of Weiland,

338 Ill. App. 3d 585, 600 (2003). Thus, the admission of business records is reviewed for an

abuse of discretion. Bank of America, N.A. v. Land, 2013 IL App (5th) 120283, ¶ 13. An abuse

of discretion occurs when the ruling is arbitrary, fanciful, or unreasonable, or where there is an

application of impermissible legal criteria. Kimble, 358 Ill. App. 3d at 408.

¶ 46 Business Records

¶ 47 To admit business records into evidence as an exception to the general rule excluding

hearsay, the proponent must lay a proper foundation by demonstrating that the records were

“made (1) in the regular course of business, and (2) at or near the time of the event or

occurrence.” Gulino v. Economy Fire & Casualty Co., 2012 IL App (1st) 102429, ¶ 27; Ill. S.

Ct. R. 236(a) (eff. Aug. 1, 1992). Similarly, Illinois Rule of Evidence 803(6) (eff. Jan. 1, 2011)

provides for the admission of “Records of Regularly Conducted Activity” where the records

consist of

“[a] memorandum, report, record, or data compilation, in any form, of acts [or] events

*** made at or near the time by, or from information transmitted by, a person with

knowledge, if kept in the course of a regularly conducted business activity, and if it was

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the regular practice of that business activity to make the memorandum, report, record

or data compilation, all as shown by the testimony of the custodian or other qualified

witness.”

¶ 48 “The theory upon which entries made in the regular course of business are admissible as an

exception to the hearsay rule is that ‘since their purpose is to aid in the proper transaction of the

business and they are useless for that purpose unless accurate, the motive for following a

routine of accuracy is great and the motive to falsify nonexistent.’ ” Kimble, 358 Ill. App. 3d at

414 (quoting Michael H. Graham, Cleary & Graham’s Handbook of Illinois Evidence

§ 803.10, at 817 (7th ed. 1999)).

¶ 49 In the context of computer-generated records, it must be established that the equipment

used is the industry standard, the entries were made in the regular course of business, at or near

the time of the transaction, and the sources of information, method, and time of preparation

indicate their trustworthiness and justify their admission. Riley v. Jones Brothers Construction

Co., 198 Ill. App. 3d 822, 829 (1990).

¶ 50 In this case, defendant mainly challenges Galus’s personal knowledge of the documents,

specifically those generated prior to his management of the loan (i.e. the purchase and

assumption agreement, the schedule of loans, and the loan agreement). Galus’s testimony

established that he personally managed the loan on behalf of plaintiff. Galus further testified

that the loan records at issue were kept in the ordinary course of business by the plaintiff and,

as the manager of the loan, he had access to and was familiar with those records. See Weiland,

338 Ill. App. 3d at 600 (“A sufficient foundation for admitting records may be established

through testimony of the custodian of records or another person familiar with the business and

its mode of operation.”). Lastly, Galus testified the loan records were true and accurate copies,

although he did indicate that portions of the purchase and assumption agreement were redacted

for reasons of confidentiality. While defendant maintains that Galus was not party to the

negotiations with the FDIC or present when certain of the loan records were initially created,

there is no foundational requirement that he be familiar with the records before litigation arose

or have personally made the entries into the computer system. US Bank, National Ass’n v.

Avdic, 2014 IL App (1st) 121759, ¶ 29. Indeed the lack of personal knowledge by the maker

affects the weight afforded the evidence but not its admissibility. Weiland, 338 Ill. App. 3d at

601. According to Rule 236, it is the business record itself, not the testimony of a witness who

makes reference to the record, that is admissible. Champaign National Bank v. Babcock, 273

Ill. App. 3d 292, 298 (1995). We therefore conclude this testimony was sufficient to establish

he had personal knowledge of the documents at issue in this case. See Avdic, 2014 IL App (1st)

121759, ¶¶ 26-27 (finding the affiant had the requisite personal knowledge to establish the

foundation for certain loan documents).

¶ 51 Defendant further argues that plaintiff was unable to properly authenticate the loan

transaction history where Galus admitted he did not have knowledge of the process by which it

was generated. Our review of the record reveals that Galus’s testimony satisfied the

foundational requirements for the admission of these computer generated records. Galus did

not testify that he was without knowledge of the process; he testified that the computer system

was maintained by Wintrust Technology Services and the loan payments were input by the

loan operations department. While he testified he did not personally input the data into the

computer, as discussed above, such testimony is not necessary to establish that a document is a

business record. See Champaign National Bank, 273 Ill. App. 3d at 298. Accordingly, we

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conclude the loan records were properly admitted as business records.

¶ 52 The Allonge

¶ 53 Defendant next argues that the trial evidence did not establish plaintiff was the rightful

owner of the loan agreement due to alleged deficiencies in the allonge. According to

defendant, the allonge is defective because it (1) was created and produced after the lawsuit

was initially filed; (2) is not signed, dated, or witnessed; and (3) is not attached to the original

note or any other document. Defendant further asserts that plaintiff failed to produce Galus’s

power of attorney that vested him with the authority to sign the allonge on the FDIC’s behalf.

¶ 54 In response, plaintiff contends that any argument related to the allonge is a red herring

because an allonge is not necessary to prove ownership of the loan. Plaintiff maintains that its

ownership is evidenced via the purchase and assumption agreement whereby it became the

owner of substantially all of the assets of First Chicago Bank & Trust. Plaintiff further asserts

that, regardless, Galus had the authority to sign the allonge through a power of attorney. Galus

testified he reviewed the power of attorney, which authorized him to sign on behalf of the

FDIC as the receiver for First Chicago Bank & Trust as its attorney in fact.

¶ 55 In reply, defendant argues that standing must exist when the suit is filed, citing Deutsche

Bank National Trust Co. v. Gilbert, 2012 IL App (2d) 120164, and U.S. Bank Trust National

Ass’n for Queen’s Park Oval Asset Holding Trust v. Lopez, 2017 IL App (2d) 160967.

Defendant maintains that, pursuant to Galus’s testimony, the allonge was created after the

lawsuit was initiated and thus plaintiff did not have standing when it commenced the lawsuit.

¶ 56 We find the cases cited by defendant to be inapposite. First, Gilbert and Lopez pertained to

mortgage foreclosure causes of action, which are governed by the Illinois Mortgage

Foreclosure Law (Foreclosure Law) (735 ILCS 5/15-1101 et seq. (West 2014)). While the

Foreclosure Law includes a provision regarding the pleading requirements for standing (see

735 ILCS 5/15-1504(a)(3)(N) (West 2014)), this matter, in contrast, was commenced as a

breach of contract action and is not governed by any such statutory pleading requirements.

Second, in Gilbert and Lopez, the defendants presented documentary evidence that the note

and mortgage were assigned to the plaintiff-mortgagee after the lawsuit commenced. See

Gilbert, 2012 IL App (2d) 120164, ¶ 17; Lopez, 2017 IL App (2d) 160967, ¶ 20. These matters

did not involve ownership via a purchase and assumption agreement, which is the issue in the

case at bar.

¶ 57 While Galus did admit that the allonge was created in late 2015 after the lawsuit was

commenced, the other evidence presented by plaintiff established it owned the loan prior to the

commencement of the lawsuit. Thus, it is inconsequential whether or not the allonge was

properly admitted into evidence by the trial court. Defendant here raises the issue of lack of

standing as an affirmative defense. As such, it was defendant’s burden to prove plaintiff lacked

standing. Parkway Bank, 2013 IL App (1st) 130380, ¶ 24.

¶ 58 Our review of the record reveals that defendant failed to present a prima facie case that

plaintiff lacked standing at the time it filed suit. Unlike the defendant in Gilbert, defendant did

not demonstrate through any evidence that plaintiff did not have an interest in the loan prior to

commencing the lawsuit. Cf. Gilbert, 2012 IL App (2d) 120164, ¶ 21. Indeed, plaintiff

demonstrated that it became the owner of the loan through the purchase and assumption

agreement. The schedule of the loans transferred from First Chicago Bank & Trust to plaintiff

via the FDIC was presented at trial and identified the loan at issue as one of the loans being

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transferred to plaintiff. See 810 ILCS 5/3-203(a) (West 2014) (an instrument is transferred by

delivery of the instrument by a person other than its issuer for the purpose of giving to the

person receiving delivery the right to enforce the instrument). Furthermore, the evidence

established that plaintiff began managing the loan in 2011 and that it subsequently modified

the loan in 2013 to change the collateral for the loan. In order to modify the loan, Freeman

testified that he made a $500,000 principal payment to plaintiff. He further testified that he

made payments according to the loan documents to plaintiff until the date of default. It was

defendant’s burden to prove plaintiff lacked standing, and defendant failed to produce any

evidence in support of this affirmative defense. See Parkway Bank, 2013 IL App (1st) 130380,

¶ 24. Accordingly, we conclude that the trial court’s finding that plaintiff had standing to bring

the lawsuit was not against the manifest weight of the evidence.

¶ 59 Attorney Fees

¶ 60 Defendant maintains that the trial court abused its discretion and the attorney fee award

should be vacated where (1) plaintiff recovered attorney fees and costs from the loan

modification and unrelated pending cases in other jurisdictions and (2) the fee amounts were

unreasonable.

¶ 61 We first address our standard of review. Generally, a trial court has broad discretion to

award attorney fees, and its decision will not be disturbed on appeal absent an abuse of that

discretion. Forest Preserve District of Cook County v. Continental Community Bank & Trust

Co., 2017 IL App (1st) 170680, ¶ 32. Yet, in cases in which a party contests the trial court’s

authority to award attorney fees under the terms of a contract, our standard of review is

twofold. Peleton, Inc. v. McGivern’s Inc., 375 Ill. App. 3d 222, 225 (2007). First, to the extent

that the trial court interpreted the terms of the contract, our review is de novo. Work Zone

Safety, Inc. v. Crest Hill Land Development, L.L.C., 2015 IL App (1st) 140088, ¶ 28. Second,

where the trial court applied the terms of the contract to the facts, our review is based on an

abuse of discretion standard. Forest Preserve District of Cook County, 2017 IL App (1st)

170680, ¶ 32. Defendant also challenges whether the trial court correctly ascertained that the

attorney fee provision in the loan agreement included certain specific attorney fees; thus we

examine the language of the loan agreement de novo.

¶ 62 “[O]ur supreme court has long recognized, Illinois follows the ‘American rule’ which

prohibits prevailing parties from recovering their attorney fees from the losing party absent an

express statutory or contractual provision.” Id. ¶ 31. Although the parties to a contract may

alter this rule, such contract provisions regarding attorney fees should be strictly construed and

enforced at the discretion of the trial court. Powers v. Rockford Stop-N-Go, Inc., 326 Ill. App.

3d 511, 515 (2001). The primary goal of contract interpretation is to give effect to the intent of

the parties, as shown by the language in the contract. Lease Management Equipment Corp. v.

DFO Partnership, 392 Ill. App. 3d 678, 685 (2009). In determining the intent of the parties, a

court must consider the document as a whole and not focus on isolated portions. Premier Title

Co. v. Donahue, 328 Ill. App. 3d 161, 164 (2002). If the language of a contract is clear and

unambiguous, the intent of the parties must be determined solely from the language of the

contract itself. Virginia Surety Co. v. Northern Insurance Co. of New York, 224 Ill. 2d 550, 556

(2007). That language should be given its plain and ordinary meaning, and the contract

enforced as written. Id.

¶ 63 Here, the loan agreement contained the following fee-shifting provision:

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“Attorneys’ Fees. Each Borrower shall reimburse the Bank for any reasonable costs

and attorneys’ fees incurred by the Bank in connection with the enforcement or

preservation of any rights or remedies under this Agreement and any other documents

executed in connection with this Agreement, and in connection with any amendment,

waiver, ‘workout’ or restructuring under this Agreement. In the event of a lawsuit, the

prevailing party is entitled to recover costs and reasonable attorneys’ fees incurred in

connection with the lawsuit, as determined by the court or arbitrator. *** To the extent

permitted by law, as used in this paragraph, ‘attorneys’ fees’ includes the allocated

costs of the Bank’s in-house counsel, and ‘costs’ shall include consultants and

experts.”

In addition, the loan agreement further contains an “Expenses” provision (section 2.2) that

references the payment of attorney fees:

“Expenses. Each Borrower agrees to pay all reasonable costs and expenses incurred

by the Bank in connection with administering the Loan after the funding date. Such

costs and expenses include, but are not limited to, charges for title insurance, recording

and escrow charges, appraisal fees, fees for environmental services, reasonable

attorneys’ fees and any other reasonable fees and costs for services, regardless of

whether such services are furnished by the Bank’s employees or by independent

contractors.”

¶ 64 We are required to strictly construe a contractual provision for attorney fees. Bright

Horizons Children’s Centers, LLC v. Riverway Midwest II, LLC, 403 Ill. App. 3d 234, 254-55

(2010). “That is, we construe the fee-shifting provision ‘to mean nothing more—but also

nothing less—than the letter of the text.’ ” Id. at 255 (quoting Erlenbush v. Largent, 353 Ill.

App. 3d 949, 952 (2004)).

¶ 65 Defendant first argues that the trial court improperly construed the fee-shifting provision to

include fees generated from the loan modification that occurred in 2013. We disagree. The

fee-shifting provision provides that each borrower “shall” reimburse plaintiff for any

reasonable attorney fees incurred regarding “any other documents executed in connection with

this Agreement, and in connection with any amendment, waiver, ‘workout’ or restructuring

under this Agreement.” The record demonstrates that in 2013 Freeman wanted to sell certain

properties that had been designated as collateral for the loan agreement. Plaintiff agreed to

release its interest in the properties provided that Freeman make a $500,000 principal payment

on the loan and also substitute different properties as collateral. Freeman did so, and new

mortgages, which expressly referenced the loan agreement, were drafted, executed, and

recorded. The billable hours generated for this loan modification were included in the fee

petition presented to the trial court. These actions clearly fall within the “workout” language of

the fee-shifting provision. Moreover, the fee-shifting provision includes a definition of

“attorneys’ fees” that “includes the allocated costs of the Bank’s in-house counsel,” the

individual who would likely be responsible for modifying the loan.

¶ 66 Defendant next asserts that the trial court erred when it determined that the fee-shifting

provision also includes the attorney fees and costs of the foreclosure litigation in Cook County,

Lake County, Michigan, and Florida. Relying on Bank of America v. WS Management, Inc.,

2015 IL App (1st) 132551, defendant asserts that the trial court erred when it allowed plaintiff

to recover fees in other proceedings with claims that are not identical to the claims in the

present case.

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¶ 67 Defendant’s interpretation of WS Management, Inc. is misguided. Defendant specifically

claims that the appellate court vacated and remanded the trial court’s determination regarding

the award of attorney fees in part because “the creditor was attempting to seek fees in a prior

turnover proceeding where the issues decided were not identical to the creditor’s claims in the

subsequent collection action.” In fact, the reviewing court vacated and remanded, not because

the attorney fee judgment was unenforceable, but because the trial court’s ruling itself was

deficient. Id. ¶ 123. The reviewing court thus “decline[d] to speculate how broad the reach of

the Kansas judgment and loan documents [were] without some explanation from the trial

court.” Id. The reviewing court also identified the mistakes in the proceedings below,

including the failure to conduct an evidentiary hearing on the reasonableness of the fees. Id.

¶ 127. The reviewing court further observed that the trial court’s order awarding the plaintiff

attorney fees was also deficient because it gave no indication as to the basis for awarding fees

or whether it considered the many factors at work in deciding whether the attorney fee award

was reasonable. Id. ¶ 128. Thus, the reviewing court vacated the attorney fee award and

remanded for further proceedings for the trial court to (1) conduct an evidentiary hearing and

(2) explain its basis for awarding attorney fees. Id. In contrast to defendant’s claims, the trial

court’s order in WS Management, Inc. was not vacated and remanded due to the trial court

awarding attorney fees in other proceedings with claims that were not identical to the claims in

the present case.

¶ 68 In this case, the language of the fee-shifting provision provides that, “Each Borrower shall

reimburse the Bank for any reasonable costs and attorneys’ fees incurred by the Bank in

connection with the enforcement or preservation of any rights or remedies under this

Agreement and any other documents executed in connection with this Agreement, and in

connection with any amendment, waiver, ‘workout’ or restructuring under this Agreement.”

Here, plaintiff sought fees and costs associated with four separate foreclosure lawsuits, which

fall squarely under this provision as it allows for the reimbursement of any reasonable attorney

fees incurred by plaintiff as it applies to the foreclosure actions brought under the loan

agreement.

¶ 69 Like the trial court, we recognize that the language of the attorney fee provision is broad.

At oral argument, defendant maintained that the broad reading of this provision was in error, as

fee-shifting provisions are to be strictly construed. See Bright Horizons Children’s Centers,

LLC, 403 Ill. App. 3d at 254-55. We, however, are not broadly construing this provision; it is

the language of the provision itself (as drafted by the parties) that is broad. Our goal is to give

effect to the intent of the parties, as demonstrated by the language in the contract. Lease

Management Equipment Corp., 392 Ill. App. 3d at 685. In this instance, the “letter of the text”

reveals that the parties’ incorporated broad language (such as the use of the word “any”) into

the attorney fee provision and thus clearly intended for defendant to reimburse plaintiff for

“any” reasonable fees incurred in connection with the enforcement or preservation of any

rights or remedies under the loan agreement. Accordingly, we conclude that the fee-shifting

provision provides for recovery of the attorney fees and costs associated with the four other

foreclosure lawsuits.

¶ 70 In his reply, defendant maintains that if he is found to owe attorney fees associated with the

recovery of the collateral, then he is only jointly and severally liable for those fees associated

with the Michigan property. According to defendant, the Michigan property was the only

collateral that was part of the loan agreement at the time he signed it. Defendant asserts he was

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not party to any agreement modifying the loan to include the other three properties as collateral

and thus is not liable for the attorney fees associated with those properties.

¶ 71 What defendant fails to acknowledge is that the loan agreement provides that each

borrower shall reimburse plaintiff for any reasonable costs and attorney fees incurred by

plaintiff in connection with the enforcement or preservation of any rights or remedies under

“any other documents executed in connection with this Agreement, and in connection with any

amendment *** or restructuring under this Agreement.” (Emphases added.) The collateral

with which defendant takes issue was substituted for the original collateral. This substitution

can be considered to be an “amendment” or “restructuring” of the agreement under the

fee-shifting provision. In addition, although the loan agreement itself does not account for two

of the properties secured as collateral, the mortgages on those properties do include references

to the loan agreement and indicate they are collateral for the loan agreement. Accordingly, we

conclude the plain language of the fee-shifting provision of this specific loan agreement

includes the attorney fees associated with these other mortgages not listed in the loan

agreement itself. See Virginia Surety Co., 224 Ill. 2d at 556.

¶ 72 Defendant next asserts that the trial court abused its discretion because the attorney fees

and costs related to this litigation were unreasonable where (1) the petition is “vague and

conclusory,” (2) the petition did not set forth in sufficient detail the fees charged, (3) the fees

for each of the five cases were “blended together,” and (4) plaintiff’s bill could have been

markedly lower had it provided the proper documentation regarding its standing at the onset of

the litigation.

¶ 73 The trial court may award only reasonable fees, which consist of “reasonable charges for

reasonable services.” McHenry Savings Bank v. Autoworks of Wauconda, Inc., 399 Ill. App. 3d

104, 113 (2010). “When assessing the reasonableness of fees, a trial court may consider a

variety of factors, including the nature of the case, the case’s novelty and difficulty level, the

skill and standing of the attorney, the degree of responsibility required, the usual and

customary charges for similar work, and the connection between the litigation and the fees

charged.” Richardson v. Haddon, 375 Ill. App. 3d 312, 314-15 (2007). The trial court has

broad discretionary powers in awarding attorney fees, and we will not reverse absent an abuse

of discretion. Id. at 314.

¶ 74 Here, plaintiff sought attorney fees it incurred for investigating the loan and modifying the

loan agreement, litigating the present matter, and for the four mortgage foreclosure cases that

involved the collateral for the loan agreement. This amount totaled $176,071.66. In support of

its fee petition, plaintiff submitted the affidavit of Flier, plaintiff’s lead counsel, and set forth

the fees charged by him and the other attorneys who worked on this case. Flier indicated he

charged between $415 and $475 per hour and that the other attorneys who handled the matter

charged between $270 and $475 per hour. See First Midwest Bank, N.A. v. Sparks, 289 Ill.

App. 3d 252, 263 (1997). Flier set forth the qualifications of those attorneys and indicated that

the more experience an attorney had the higher his or her hourly rate was. See J.B. Esker &

Sons, Inc. v. Cle-Pa’s Partnership, 325 Ill App. 3d 276, 283 (2001). A review of the fee

petition reveals that it specified the services performed, the attorney who performed the

services, the time expended, and the hourly rate charged. See Kroot v. Chan, 2017 IL App (1st)

162315, ¶ 37. It is evident from the affidavit, as well as the overall record in this case, that the

matter was complex; it involved a commercial dispute regarding a $1.8 million loan, numerous

mortgages that served as collateral for that loan, and an unconventional “pledge agreement”

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regarding Freeman’s Facebook stock. Our review of the petition thus reveals that the petition

was neither vague nor conclusory, and we refute defendant’s assertion that it did not set forth

the names of those who worked on the matters and their rates.

¶ 75 We also reject defendant’s argument that the attorney fees are unreasonable because the

itemized bill “contains a blend of attorney billing for all of the cases and does not separate or

keep distinct the attorney billing for each matter.” Defendant cites no case law in support of

this proposition. See Ill. S. Ct. R. 341(h)(7) (eff. July 1, 2017) (argument in appellate brief

must be supported by citation to legal authority and factual record). Moreover, our review of

the matter indicates that plaintiff did provide a detailed account of the services performed by

the attorneys in this matter and attempted to separate out the billing for each of the five cases,

despite there being some minor overlapping. We do not find this minor overlapping to be

troubling where the cases were intertwined and the fee-shifting provision allowed for the

recovery of all the fees incurred in this instance.

¶ 76 We further reject defendant’s argument that plaintiff’s delay in providing the relevant

documents regarding its standing unnecessarily increased the fees incurred. As explained

above, it was defendant who failed to engage in discovery or even assert his affirmative

defense in a timely fashion. Consequently, we decline to find the fees charged to be

unreasonable for this reason.

¶ 77 Lastly, defendant criticizes the trial court for not holding an evidentiary hearing regarding

the issue of attorney fees. We observe that defendant never requested such an evidentiary

hearing. See Cabrera v. First National Bank of Wheaton, 324 Ill. App. 3d 85, 103 (2001) (the

failure to request an evidentiary hearing on attorneys fees results in a waiver of one’s right to

the hearing). Moreover, “[a]n evidentiary hearing is not always necessary in order to determine

reasonable attorney fees. A nonevidentiary proceeding is proper so long as the trier of fact can

determine from the evidence presented, including a detailed breakdown to fees and expenses,

what amount would be reasonable, and the opponent is not deprived of the opportunity to

present evidence.” Kroot, 2017 IL App (1st) 162315, ¶ 37. As previously discussed, plaintiff’s

fee petition provided such a detailed breakdown.

¶ 78 We conclude the trial court did not abuse its discretion in its award of attorney fees to

plaintiff.

¶ 79 CONCLUSION

¶ 80 For the reasons stated above, we affirm the judgment of the circuit court of Cook County.

¶ 81 Affirmed.

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