Fanslow v. Northern Trust Co.

700 N.E.2d 692, 299 Ill. App. 3d 21, 233 Ill. Dec. 164, 37 U.C.C. Rep. Serv. 2d (West) 1112, 1998 Ill. App. LEXIS 594
CourtAppellate Court of Illinois
DecidedAugust 31, 1998
Docket1-96-3136
StatusPublished
Cited by18 cases

This text of 700 N.E.2d 692 (Fanslow v. Northern 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
Fanslow v. Northern Trust Co., 700 N.E.2d 692, 299 Ill. App. 3d 21, 233 Ill. Dec. 164, 37 U.C.C. Rep. Serv. 2d (West) 1112, 1998 Ill. App. LEXIS 594 (Ill. Ct. App. 1998).

Opinion

JUSTICE O’BRIEN

delivered the opinion of the court:

Plaintiff, Richard G. Fanslow, filed a complaint against defendant, The Northern Trust Company (Northern Trust), alleging wrongful dishonor of a letter of credit (count I), nonpayment of a sight draft after acceptance (count II), and breach of good faith (count III). The trial court entered summary judgment in favor of Northern Trust on counts I and II and dismissed count III. Plaintiff appealed. We affirm.

In 1988, a corporation owned and controlled by Fanslow sold its interest in Summit National Life Insurance Company (Summit) to SNL Corporation, which was controlled by Allen. Stewart (Stewart). 1 To partially finance the transaction, Stewart gave Fanslow a “Promissory Note Secured by Letter of Credit.” The letter of credit was issued by Northern Trust for Fanslow’s benefit (the NTC L/C). The NTC L/C provided, in pertinent part:

“WE HEREBY ISSUE THIS IRREVOCABLE STANDBY LETTER OF CREDIT WHICH IS AVAILABLE BY YOUR DRAFT DRAWN AT SIGHT ON US, BEARING THE CLAUSE ‘DRAWN UNDER IRREVOCABLE STAND-BY LETTER OF CREDIT NO. S253144 OF THE NORTHERN TRUST COMPANY’ WHEN ACCOMPANIED BY:
1. A STATEMENT PURPORTEDLY SIGNED BY RICHARD G. FANSLOW OR HIS AUTHORIZED REPRESENTATIVE STATING THAT:
(1) SNL CORPORATION HAS DEFAULTED IN ONE OR MORE OF ITS OBLIGATIONS UNDER THE TERMS OF THE PROMISSORY NOTE IN THE AMOUNT OF USD 6,400,000.00 PAYABLE TO THE ORDER OF RICHARD G. FANSLOW AND DATED OCTOBER 5, 1988 (THE ‘NOTE’), THEREFORE IMMEDIATE PAYMENT OF USD (INSERT AMOUNT OF DRAFT) IS NOW DUE AND OWING UNDER THE NOTE.
* * *
WE HEREBY ENGAGE WITH YOU THAT ALL DOCUMENTS PRESENTED IN COMPLIANCE WITH THE TERMS OF THIS LETTER OF CREDIT WILL BE DULY HONORED BY US WITHIN THREE WORKING DAYS IF DELIVERED TO THE NORTHERN TRUST COMPANY, 802 S. CANAL STREET, CHICAGO, ILLINOIS, 60675 PRIOR TO 3 PM ON OR BEFORE THE EXPIRATION DATE.”

A separate $8 million letter of credit was issued by Merrill Lynch International Bank (London) (MLIB) to secure the NTC L/C (the MLIB L/C). In turn, Stewart pledged some $8 million on deposit with MLIB in London to secure the MLIB L/C.

Shortly after the sale and purchase of Summit, the insurance company experienced severe financial difficulties and filed a petition for rehabilitation with the Commonwealth Court of Pennsylvania (the Pennsylvania lawsuit). In its effort to preserve the assets of the rehabilitation estate, the Pennsylvania Insurance Commissioner applied to the Commonwealth Court for an injunction against Fanslow, Northern Trust and MLIB to prevent them from exercising their rights and obligations under the NTC L/C and the MLIB L/C. The Pennsylvania Insurance Commissioner alleged that the $8 million on deposit with MLIB in London which secured the MLIB L/C (and by extension the NTC L/C) also secured another and later-created obligation owed to Summit by Stewart and thus the funds belonged to the Summit rehabilitation estate rather than to Fanslow. The nature of the Pennsylvania Insurance Commissioner’s request notwithstanding, the application failed to name either Fanslow or Northern Trust as a party. Consequently neither was formally served with process, although Fanslow (but not Northern Trust) was informed of a hearing scheduled for September 29, 1994.

At the September 29, 1994, hearing, both MLIB and Fanslow appeared specially to contest jurisdiction. Northern Trust did not appear. The Pennsylvania court nevertheless enjoined MLIB from paying on the MLIB L/C. It did not, however, enjoin Fanslow from drawing upon or Northern Trust from paying upon the NTC L/C. The court’s supplemental memorandum issued in relation to this decision states:

“In seeking this relief, the [Pennsylvania Insurance Commissioner] asked us to take action over Fanslow which would ineluctably affect the legal and substantive rights of Northern Trust. However, Northern Trust was not named as a party, not mentioned in the pleading and was not served or otherwise notified.
Although all counsel agreed at hearing on the rehabilitator’s emergency request that Northern Trust had an obligation to Fanslow by virtue of the letter of credit, no evidence was produced to establish this obligation. ***
Thus, the court is in no position to take action to interdict a banking relationship in another jurisdiction involving a letter of credit, without the least notification to the issuing bank, which it appears, is putatively a real party in interest in these proceedings.”

On October 1, 1994, Stewart failed to make a scheduled interest payment on the note secured by the NTC L/C. Consequently, on the morning of October 3, 1994, Fanslow presented certain documents to Northern Trust to draw upon the NTC L/C. Later that same day, the Pennsylvania Insurance Commissioner amended its application to the Pennsylvania court for an injunction to name Northern Trust as a “party in interest.” Also, Northern Trust notified Fanslow that the tendered draw documents were not acceptable.

In response, Fanslow delivered additional documents to Northern Trust the next morning. Among the additional documents was a sight draft for $8 million. The sight draft was date-stamped and signed or initialed by an authorized representative of the international banking department of Northern Trust. Later that same day, without further hearing and despite lack of process or an attempt at service or any other notice, the Pennsylvania court issued an ex parte order enjoining Fanslow from drawing on the NTC L/C, enjoining Northern Trust from paying under the NTC L/C, and enjoining MLIB from paying under the MLIB L/C. The same order required the “parties” to file a memorandum of law “on the question of this court’s jurisdiction to enter injunctive relief.” Citing the Pennsylvania court order, Northern Trust refused to pay on the previously tendered draw documents although it acknowledged that they were complete and complied in all respects with the NTC L/C’s requirements.

The hearing on the Pennsylvania court’s jurisdiction to enter injunctive relief continued on October 12, 1994. As of that date, Northern Trust had not been served with any summons or process nor had it appeared at any hearing. However, the Pennsylvania court received a copy of an unsworn letter written by Northern Trust to counsel for MLIB and Fanslow dated, October 7, 1994. The letter states:

“that Northern Trust does not at this time intend to file any briefs or other papers or make any appearance in the above-referenced proceeding ***.
Northern Trust has an office in Pennsylvania, a division called ‘Trust Rite System Group,’ in Wayne, Pennsylvania. It does not accept deposits or make loans — it is a trust-related data processing operation, and is not in technical terms a ‘branch’. Please do not serve any papers at that office.”

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In re The Estate A.D.
2024 IL App (1st) 230306-U (Appellate Court of Illinois, 2024)
Zanayed v. Mufarreh
2024 IL App (1st) 230331-U (Appellate Court of Illinois, 2024)
Midwest Commercial Funding, LLC v. Kelly
2023 IL 128260 (Illinois Supreme Court, 2023)
Midwest Commercial Funding, LLC v. Kelly
2022 IL App (1st) 210644 (Appellate Court of Illinois, 2022)
People v. Matthews
2016 IL 118114 (Illinois Supreme Court, 2016)
People v. Lake
2014 IL App (1st) 131542 (Appellate Court of Illinois, 2015)
People v. Kuhn
2014 IL App (3d) 130092 (Appellate Court of Illinois, 2014)
People v. Ocon
2014 IL App (1st) 120912 (Appellate Court of Illinois, 2014)
People v. M.W.
905 N.E.2d 757 (Illinois Supreme Court, 2009)
In Re MW
905 N.E.2d 757 (Illinois Supreme Court, 2009)
JPMorgan Chase Bank v. Access Healthsource, Inc.
225 F. App'x 663 (Ninth Circuit, 2007)
Owens v. Snyder
811 N.E.2d 738 (Appellate Court of Illinois, 2004)
Alcan United, Inc. v. West Bend Mutual Insurance
707 N.E.2d 687 (Appellate Court of Illinois, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
700 N.E.2d 692, 299 Ill. App. 3d 21, 233 Ill. Dec. 164, 37 U.C.C. Rep. Serv. 2d (West) 1112, 1998 Ill. App. LEXIS 594, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fanslow-v-northern-trust-co-illappct-1998.