Cohen v. Continental Illinois National Bank & Trust Co.

618 N.E.2d 1060, 248 Ill. App. 3d 188, 188 Ill. Dec. 490
CourtAppellate Court of Illinois
DecidedJune 30, 1993
Docket1 — 92—1490
StatusPublished
Cited by14 cases

This text of 618 N.E.2d 1060 (Cohen v. Continental Illinois National Bank & Trust Co.) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cohen v. Continental Illinois National Bank & Trust Co., 618 N.E.2d 1060, 248 Ill. App. 3d 188, 188 Ill. Dec. 490 (Ill. Ct. App. 1993).

Opinion

JUSTICE CERDA

delivered the opinion of the court:

Plaintiff, Irwin Cohen, filed this declaratory judgment action seeking determination of rights to a $75,000 certificate of deposit (CD) and the interest accrued, which was held by defendant, Continental Illinois National Bank & Trust Company of Chicago (Bank). On appeal, plaintiff asserts that (1) the trial court erred when it denied his motion for summary judgment and granted defendant’s cross-motion for summary judgment; and (2) defendant improperly froze Mark I, Inc.’s (Mark I’s) prebankruptcy petition debt at $75,000 and applied subsequent payments from the debtor in possession to post-bankruptcy petition debts. We affirm in part and reverse in part.

On July 8, 1983, Mark I entered into a loan and security agreement (Loan Agreement) with defendant Bank whereby defendant agreed to advance money to Mark I on a revolving line of credit. On January 7, 1985, plaintiff, Irwin Cohen, executed a “Collateral Agreement Covering Loans to Third Party” (Collateral Agreement). Pursuant to the Collateral Agreement’s terms, plaintiff deposited a $75,000 CD with defendant to secure Mark I’s debt. Each month through January 7, 1989, defendant forwarded the interest earned on the CD to plaintiff.

On August 21, 1985, Mark I filed a voluntary bankruptcy petition for reorganization under chapter 11 of the Bankruptcy Act. As a debtor in possession, Mark I operated the business during the bankruptcy’s pendency. With the bankruptcy court’s approval, but without plaintiff’s knowledge or approval, defendant and Mark I entered into an agreed order on December 11, 1985, which allowed defendant to make loans to Mark I as debtor in possession.

A relevant part of the agreed order provides:

“(h) Proceeds or payments received by [Continental] with respect to the property of [Mark I] upon which [Continental] had security interests on the date of the petition shall be first applied by [Continental] upon the indebtedness owing by [Mark I] to [Continental] and then, after full payment thereof, to the indebtedness owing by the Debtor in Possession to [Continental] * * * "

Among other provisions, the agreed order (1) provided for the repayment of Mark I’s prebankruptcy petition debt and the use of cash collateral by the debtor in possession during the pendency of the bankruptcy proceedings; "(2) granted the debtor in possession authority to assume all of Mark I’s prepetition debt and to provide defendant with a valid, perfected, and enforceable first priority security interest in, and a lien on, all the assets of Mark I and the debtor in possession in exchange for defendant’s extension of a continuing line of credit to the debtor in possession; and (3) required defendant to apply payments received from the debtor in possession towards Mark I’s outstanding prepetition debt prior to applying any of the debtor in possession’s payments to the post-bankruptcy petition debt.

Pursuant to the agreed order, defendant applied the incoming funds from the debtor in possession to reduce Mark I’s prepetition debt until the amount of principal outstanding was $75,000. Defendant then retained plaintiff’s CD to fully satisfy the prepetition debt. Subsequently, the debtor in possession’s payments were used to reduce Mark I’s post-petition debt.

In November 1988, plaintiff inquired about the status of his CD, which was due to expire on January 7, 1989. Plaintiff insisted that he was entitled to the funds since his obligations under the Collateral Agreement had expired, but defendant refused to release the funds to him. Instead, defendant transferred the funds into a money market account and stopped forwarding any accruing interest to plaintiff.

On August 31, 1989, plaintiff filed an action for declaratory judgment seeking determination of the parties’ rights to the funds. A year later, defendant sent plaintiff a letter stating that it intended to apply all of the funds, plus the accrued interest, to Mark I’s prepetition debt. Plaintiff filed a motion to prohibit such application of the funds, but the motion was denied. Defendant then removed the funds, totaling about $85,000, from plaintiff’s bank account.

It was agreed by the parties that there were no disputed issues of material fact, and both sides moved for summary judgment. Denying plaintiff’s motion, the trial court found that (1) the Collateral Agreement was enforceable as to the prepetition debts of Mark I only; (2) that defendant used plaintiff’s collateral to reduce prepetition debt only; (3) the agreed order did not mandate defendant to reduce the prepetition debt solely from the payments made by the debtor in possession; and (4) defendant was entitled to accrue interest on the collateral amount.

Since the facts of this case are undisputed, the only issue to be resolved by this court is a question of law. There are several areas of agreement between the parties. Both parties agree that Mark I as debtor under the Collateral Agreement and Mark I as debtor in possession under the bankruptcy proceedings are different entities. As such, plaintiff is not obligated to pay the debtor in possession’s post-petition debts. In addition, defendant was not limited to reducing the prepetition debts only from the debtor in possession’s payments.

Thus, the main issue on appeal is whether defendant improperly froze Mark I’s prepetition debt at $75,000 without seizing the $75,000 CD before using the debtor in possession’s payments to reduce its post-petition debt.

Plaintiff’s argument on appeal can be summarized as follows. Plaintiff asserts that defendant must return his collateral funds because defendant’s manipulation of the prepetition and post-petition account balances was in bad faith and violated the terms of the bankruptcy court’s agreed order. Plaintiff stresses that defendant created an artificial prepetition balance of exactly $75,000, froze that balance, and then applied the funds received from the debtor in possession to its post-petition debt. Years later, plaintiff’s funds were seized and applied to the outstanding prepetition debt. Plaintiff concludes that the manipulation of Mark I’s prepetition and post-petition debts was a scheme to improperly maintain control of the funds as collateral for the debtor in possession’s post-petition debt.

Furthermore, plaintiff contends that this application of funds violated the bankruptcy court’s agreed order. If the funds had been applied as the agreed order provided, plaintiff argues, the prepetition debt would have been paid in full and plaintiff’s obligations under the Collateral Agreement would have been terminated.

In response, defendant asserts that it simply invoked the rights plaintiff granted it under the Collateral Agreement, which clearly and unambiguously specifies that defendant could resort to plaintiff’s collateral for payment of any of Mark I’s liabilities even without Mark I’s default. Defendant stresses that it used plaintiff’s collateral only to reduce Mark I’s prepetition debt, not obligations arising from post-petition credit extensions to the debtor in possession.

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Cite This Page — Counsel Stack

Bluebook (online)
618 N.E.2d 1060, 248 Ill. App. 3d 188, 188 Ill. Dec. 490, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cohen-v-continental-illinois-national-bank-trust-co-illappct-1993.