FirstMerit Bank v. Fanaro, Jr. et al

Filing 23

MOTION by Plaintiff FirstMerit Bank for judgment by consent (Attachments: # 1 Exhibit A)(McCormick, Gregory)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION
FIRSTMERIT BANK, N.A. as successor
in interest to FEDERAL DEPOSIT
INSURANCE CORPORATION, as Receiver
For MIDWEST BANK AND TRUST
COMPANY
Plaintiff,
v.
CHARLES J. FANARO, JR,,
HI-TECH HOUSING, INC. AND DWG
CORPORATION
Defendants.

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Case No. 13 cv 7504
District Judge: Edmond E. Chang
Magistrate Judge: Jeffrey T. Gilbert

AGREED CONSENT JUDGMENT ORDER
THIS CAUSE COMING TO BE HEARD for hearing on the merits of the Plaintiff’s Amended
Complaint filed herein by Plaintiff and on the agreement and stipulation of the parties, this Court
having found that it has jurisdiction over the parties and the subject matter and otherwise being
fully advised in the premises, makes these FINDINGS BASED ON THE STIPULATION AND
AGREEMENT OF THE PARTIES:
1.

The Defendants, Charles J. Fanaro, Jr., Hi-Tech Housing, Inc. and DWG

Corporation (hereinafter “Defendants”) each waived service of the Amended Complaint and
voluntarily appeared through the undersigned counsel;
2.

Counts I and II of the Amended Complaint, respectively, assert causes of action

against Charles J. Fanaro, Jr. and Hi-Tech Housing, Inc. for breach of their respective
Commercial Guaranties (“Guaranties”) of the indebtedness of DWG Corporation, which arises
from a promissory note attached to the Amended Complaint as Exhibit A to the Amended
Complaint (“Note”);
3.

Count III asserts a cause of action against DWG Corporation arising from its

indebtedness under the Note;
4.

This Court has original jurisdiction over this civil action based on diversity of

citizenship pursuant to 28 U.S.C. §1332, since Plaintiff and each defendant are citizens of
different states (Ohio and Illinois and Indiana, respectively) and the amount in controversy in
exceeds $75,000.00.

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5.

The parties stipulate and agree that the allegations of Plaintiff’s Amended

Complaint are confessed against each of the Defendants and that final judgment shall be entered,
jointly and severally, against each of the Defendants, to which each of the Defendants hereby
consents, thereby adjudicating all claims in Plaintiff’s Amended Complaint; subject to the terms
of the 8th Modification to Forbearance Agreement (“Modification Agreement”) between and
among the parties, including, but not limited to the provision that the Bank will not record or
execute on the Agreed Judgments during the Forbearance Period as extended under the
Modification Agreement, which provides that the Forbearance Period shall be extended, until the
earlier of: (i) April 30, 2014; (ii) the date of any breach by Borrower or Guarantor of any
provision of the Modification Agreement, or the failure of any Forbearance Condition, as defined
below, if not cured within three (3) business days after written notice of any breach by Bank to
counsel for DWG; or (iii) closing of the Transaction and the failure to pay the Indebtedness.
6.

This Court specifically finds, based on the consent and agreement of Defendants,

that Plaintiff is entitled to judgment against Defendants pursuant to Counts I, II and III of
Plaintiff’s Amended Complaint.
7.
The parties stipulate and agree that the amount due to Plaintiff under the Note,
Guaranties, and the Modification Agreement, as of January 22, 2014, is as follows:
Principal
Interest
Deferred Forbearance Fee
Extension Fee
Late Fees
Appraisal Fees
Attorneys Fees

$9,355,000.00
1,297,618.19
100,000.00
500,000.00
29,610.01
16,800.00
210,872.05

Total: $11,509,900.25 plus interest at the rate of $1,948.96 per diem for the period of January
22, 2014 through the date of the entry of the this Order, and thereafter, post-judgment interest at
the rate of 7.5% per annum.
THEREFORE IT IS HEREBY ORDERED THAT:
1.
Pursuant to Counts I, II and III of Plaintiff’s Amended Complaint, judgment is
entered in favor of FirstMerit Bank, N.A. and against Defendants Charles J. Fanaro, Jr., Hi-Tech
Housing, Inc. and DWG Corporation, jointly and severally, in the amount of $11,564,471.13,
plus post-judgment interest at the rate of 7.5% per annum.

2262584.1

2.
This order constitutes a final judgment with respect to all claims pleaded in
Plaintiff’s Amended Complaint against all Defendants and constitutes the final order of the
Court.
DATED: _____________________
ENTER:
_________________________________
JUDGE

AGREED AND ACKNOWLEDGED:
s/Gregory A. McCormick
Gregory A. McCormick
Garfield & Merel, Ltd.
180 N. Stetson Suite 1300
Chicago, Illinois 60601-6710
Telephone: [phone]
Facsimile [phone]
Counsel for Plaintiff

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s/Andrew W. Vail
Andrew W. Vail
Jenner & Block, LLP
353 N. Clark Street
Chicago , Illinois 60654
Telephone: [phone]
Facsimile [phone]
Counsel for Defendants

2262584.1