Vician v. Vician
2016 IL App (2d) 160022
| Ill. App. Ct. | 2016Background
- Dolores and Edward (parents) loaned Gregory and Michelle large sums over years and executed a promissory note dated October 1, 2009, for $357,586.12; the note stated the lender could transfer the note and included a $100,000 waiver if paid as agreed and an attorney-fees provision.
- Dolores and Edward assigned the note to Gary and Gale on August 1, 2012; plaintiffs sued Gregory and Michelle on the note after defendants defaulted.
- At bench trial, plaintiffs presented Dolores’s testimony, loan ledgers, and bank statements to prove delivery of funds, signatures, payments, and assignment; an independent witness (Risch) corroborated signing of a mortgage.
- Defendants produced handwriting/expert testimony denying that Gregory and Michelle signed the note, and Gregory testified he paid substantial sums (claiming over $250,000) but produced no cancelled checks or supporting records for the relevant period.
- Trial court found plaintiffs’ witnesses credible, discredited Gregory’s testimony, reduced the principal by $100,000 as a contemporaneous gift, entered judgment for $257,586.12 plus $51,014.78 attorney fees (total $308,627.90), and defendants appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court ignored evidence of payments and erred on facts | Plaintiffs argued their evidence (Dolores’s records, bank statements) supported amount owed and rebutted payment defense | Defendants argued Gregory paid over $250,000 and documentary evidence (bank records) proved partial payment, warranting a $250,626 reduction | Court upheld trial court: credibility findings supported; defendants failed to prove payment by preponderance; judgment not against manifest weight of evidence |
| Whether denial of directed finding was erroneous | Plaintiffs argued they presented a prima facie case (note, delivery, assignment); consideration for negotiable note is presumed | Defendants argued plaintiffs failed to prove consideration and therefore should not survive directed finding | Court held denial proper: plaintiffs presented evidence; consideration presumed for negotiable note and trial court reasonably found delivery/consideration proved |
| Whether notice of default/acceleration satisfied note’s conditions for fees | Plaintiffs admitted acceleration letter and fee affidavit; argued letter stated full principal and entitled them to fees per note | Defendants argued on appeal the default notice failed to state amount owed and didn’t account for alleged payments | Court ruled the notice issue forfeited (not raised below); acceleration letter admitted without objection and sufficed; fee award stands |
| Whether awarded attorney fees were unreasonable | Plaintiffs relied on Brown’s affidavit and time ledger admitted at trial | Defendants contended fee amount was excessive | Court held defendants forfeited challenge by failing to object at trial; fee award affirmed |
Key Cases Cited
- In re Estate of Wilson, 238 Ill. 2d 519 (standard for affirming bench-trial factual findings)
- State Bank of East Moline v. Young, 149 Ill. App. 3d 460 (payment as affirmative defense — burden on defendant)
- Burke v. Burke, 89 Ill. App. 3d 826 (consideration for negotiable note presumed)
- Leopold v. Halleck, 106 Ill. App. 3d 386 (presence of negotiable instrument required in note suit)
- Fontana v. TLD Builders, Inc., 362 Ill. App. 3d 491 (adverse evidentiary presumption when party fails to produce evidence within control)