PNC Bank v. Halsted Holding Corp et al
Filing
10
MOTION by Plaintiff PNC Bank, National Association, successor to National City Bank, successor to Mid America Bank, fsb. for judgment By Confession (Attachments: # 1 Exhibit Affidavit, # 2 Exhibit Confession)(Skrobin, Wendy)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION
PNC BANK, NATIONAL ASSOCIATION,
successor to National City Bank,
successor to MidAmerica Bank,
fsb,
)
)
)
)
) Case No. 12 CV 8335
)
) Assigned Judge: Sharon Johnson Coleman
)
) Magistrate Judge: Sidney I. Schenkier
)
)
)
)
)
Plaintiff,
v.
HALSTED HOLDING CORP.,
WLADYSLAW SZCZEPANSKI, and
DANIEL SZCZEPANSKI
Defendants.
MOTION FOR ENTRY OF EX PARTE JUDGMENT BY CONFESSION
NOW COMES the plaintiff, PNC Bank, National Association,
successor to National City Bank, successor to MidAmerica Bank, fsb
(“PNC Bank” or “Plaintiff”), by and through its attorneys, Thomas
J. Dillon, Wendy Kaleta Skrobin and McFadden & Dillon, P.C. and for
its Motion for Entry of Ex Parte Judgment by Confession states as
follows:
1.
The above-captioned cause was filed on October 16, 2012
and is presently pending before this Court.
2.
Plaintiff asserts in its Complaint (i) a claim against
the defendant, Halsted Holding Corp. (“Halsted”), for breach of
contract
arising
out
of
a
promissory
note
executed
by
the
defendant, Magas, in favor of plaintiff dated November 29, 2006 in
the original principal amount of $600,000.00 (the “Promissory
Note”) and subsequent modifications (true and correct copies of the
1
Note and modifications thereto are attached to the Complaint
respectively
as
Exhibits
B-D
and
incorporated
herein
by
reference)(collectively (the “Note”)(Count I), (ii) a claim against
the
defendant,
arising
out
Wladyslaw
of
a
Szczepanski,
Commercial
Guaranty
for
breach
executed
of
by
contract
Wladyslaw
Szczepanski in favor of Plaintiff dated November 29, 2006 (a true
and correct copy of the Wladyslaw Szczepanski Guaranty is attached
to
the
Complaint
as
Exhibit
E
and
incorporated
herein
by
reference)(Count II), and (iii) a claim against the defendant,
Daniel Szczepanski,
for
breach
of
contract
arising
out
of a
Commercial Guaranty executed by Daniel Szczepanski in favor of
Plaintiff dated November 29, 2006 (a true and correct copy of the
Daniel Szczepanski Guaranty is attached to the Complaint as Exhibit
F and incorporated herein by reference)(Count III). (Wladyslaw
Szczepanski
and
Daniel
Szczepanski
are
collectively
the
“Guarantors”).
3.
735 ILCS 5/2-1301(c) provides, in pertinent part:
“(c)...any person for a debt bona fide due may confess
judgment by himself or herself or attorney duly
authorized, without process. The application to confess
judgment shall be made in the county in which the note or
obligation was executed...[a] judgment entered by any
court in any county other than those specified herein has
no force or validity, anything in the power to confess to
the contrary notwithstanding.”
735 ILCS 5/2-1301(c)(West 2009).
4.
follows:
The Note expressly provides at pages 1-2 thereof as
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“CONFESSION OF JUDGMENT.
Borrower hereby irrevocably
authorizes and empowers any attorney-at-law to appear in
any court of record and to confess judgment against
Borrower for the unpaid amount of this Note as evidenced
by an affidavit signed by an officer of Lender setting
forth the amount then due, attorneys’ fees plus costs of
suit, and to release all errors, and waive all rights of
appeal.
If a copy of this Note, verified by an
affidavit, shall have been filed in the proceeding, it
will not be necessary to file the original as a warrant
of attorney. Borrower waives the right to any stay of
execution and the benefit of all exemption laws now or
hereafter in effect. No single exercise of the foregoing
warrant and power to confess judgment will be deemed to
exhaust the power, whether or not any such exercise shall
be held by any court to be invalid, voidable or void; but
the power will continue undiminished and may be exercised
from time to time as Lender may elect until all amounts
owing on this Note have been paid in full.
Borrower
hereby waives and releases any and all claims or causes
of action which Borrower might have against any attorney
acting under the terms of authority which Borrower has
granted herein arising out of or connected with the
confession of judgment hereunder.”
Exhibit B attached to the Complaint, Note, Pages 1-2.
5.
Each
of
the
Commercial
Guaranties
executed
by
Guarantors provides at page 2 as follows:
“CONFESSION OF JUDGMENT. Guarantor hereby irrevocably
authorizes and empowers any attorney-at-law to appear in
any court of record and to confess judgment against
Guarantor for the unpaid amount of this Guaranty as
evidenced by an affidavit signed by an officer of Lender
setting forth the amount then due, attorneys’ fees plus
costs of suit, and to release all errors, and waive all
rights of appeal. If a copy of this Guaranty, verified
by an affidavit, shall have been filed in the proceeding,
it will not be necessary to file the original as a
warrant of attorney. Guarantor waives the right to any
stay of execution and the benefit of all exemption laws
now or hereafter in effect. No single exercise of the
foregoing warrant and power to confess judgment will be
deemed to exhaust the power, whether or not any such
exercise shall be held by any court to be invalid,
voidable or void; but the power will continue
3
the
undiminished and may be exercised from time to time as
Lender may elect until all amounts owing on this Guaranty
have been paid in full. Guarantor hereby waives and
releases any and all claims or causes of action which
Guarantor might have against any attorney acting under
the terms of authority which Guarantor has granted herein
arising out of or connected with the confession of
judgment hereunder.”
Exhibits E-F attached to the Complaint, Commercial Guaranties,
Page 2.
6.
Plaintiff submits herewith as Exhibit A the Affidavit of
Lon A. Keast, a Vice President of PNC Bank verifying the Note and
the Guaranties and setting forth the amounts due under the Note and
the Guaranties.
7.
Plaintiff also submits herewith as Exhibit B a Confession
executed by Timothy J. Somen, a licensed Illinois attorney, on
behalf
of
Defendants
confessing
Judgment
against
Defendants
pursuant to the express provision of the Note and the Guaranties
authorizing same.
WHEREFORE,
plaintiff,
PNC
Bank,
National
Association,
successor to National City Bank, successor to MidAmerica, fsb,
respectfully requests that this Honorable Court pursuant to the
express
confession
of
judgment
provisions
of
the
Note
and
Guaranties along with the Confession submitted herewith (i) enter
judgment by confession in favor of plaintiff and against the
defendant, Halsted Holding Corp., on Count I of the Complaint; (ii)
enter judgment by confession in favor of plaintiff and against the
defendant, Wladyslaw Szczepanski, on Count II of the Complaint;
(iii) enter judgment by confession in favor of plaintiff and
against the defendant, Daniel Szczepanski, on Count III of the
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Complaint; and (iv) grant such further and additional relief as
this Court may deem just and proper.
Respectfully submitted,
/s/ Wendy Kaleta Skrobin
One
of the
attorneys for
plaintiff, PNC Bank, National
Association,
successor
to
National City Bank, successor
to MidAmerica Bank, fsb
Thomas J. Dillon (ARDC#3124223)
t.dillon@mcdillaw.com
Wendy Kaleta Skrobin (ARDC#6226119)
w.skrobin@mcdillaw.com
McFadden & Dillon, P.C.
120 S. LaSalle Street, Suite 1335
Chicago, Illinois 60603
(312) 201-8300
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