First American Bank v. Poplar Creek, LLC

2024 IL App (1st) 230551, 258 N.E.3d 857

• Court: Appellate Court of Illinois
• Decided: June 21, 2024
• Docket: 1-23-0551
• Status: Published

Opinion

2024 IL App (1st) 230551 No. 1-23-0551 Opinion filed June 21, 2024 Sixth Division ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ FIRST AMERICAN BANK, ) ) Plaintiff-Appellee, ) Appeal from the ) Circuit Court of v. ) Cook County. POPLAR CREEK, LLC; ESTATE OF GEORGE A. ) MOSER; DOUGLAS C. ALTENBERGER; GEORGE M. ) No. 17 CH 14974 MOSER; MARTIN WALSH; STONEGATE ) CONFERENCE AND BANQUET CENTRE, LLC; ) Honorable UNKNOWN OWNERS; AND NONRECORD ) Patrick J. Heneghan, CLAIMANTS, ) Judge, presiding. Defendants, ) ) (Estate of George A. Moser, Douglas C. Altenberger, and ) George M. Moser, Defendants-Appellants). )

JUSTICE HYMAN delivered the judgment of the court, with opinion. Presiding Justice Johnson and Justice C.A. Walker concurred in the judgment and opinion.

OPINION

¶1 In supplemental collection proceedings, First American Bank (First American) recovered

a portion of a judgment against Poplar Creek, LLC (Poplar Creek), through a settlement with

a guarantor. The remaining guarantors then sought a finding under section 12-183 of the Code 1-23-0551

of Civil Procedure (735 ILCS 5/12-183 (West 2022)) that the judgment had been satisfied

when Poplar Creek assigned to First American as additional collateral a security interest in a

tax increment financing (TIF) note from the Village of Hoffman Estates. The guarantors argued

that (i) First American should have first applied payments it received from other sources to the

judgment and (ii) First American’s retention of a TIF note satisfied the judgment. The trial

court denied the petition.

¶2 We affirm. The trial court did not err in finding that (i) First American was not required to

sell the TIF note under the Uniform Commercial Code (UCC) (810 ILCS 5/1-101 et seq. (West

2022)) or principles of equity, (ii) retaining the TIF note did not satisfy the judgment, and

(iii) First American had discretion in applying payments and credits it received on the debt.

¶3 Background

¶4 First American made a commercial property loan to Poplar Creek in 2004, secured by a

mortgage lien and assignment of rents and the limited guarantees of Poplar Creek’s

managers—George A. Moser, Douglas C. Altenberger, George M. Moser, and Martin M.

Walsh, who is not a party to this appeal. (George A. Moser’s estate was substituted as a party.)

The guarantors’ obligations were limited “to the amount of ten percent (10.00%) of the

outstanding Obligations” plus interest, expenses including reasonable attorney’s fees, and “all

amounts reasonably necessary to protect, preserve and maintain the Premises (as defined in the

Loan Agreement), including without limitation amounts paid to other lien holders or

governmental entities.” The guaranties stated that “[a]ny amounts received by the Bank from

whatsoever source on account of the Obligations may be applied by it toward the payment of

such of the Obligations, and in such order of application, as the Bank may from time to time

elect.”

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¶5 In an amendment, Poplar Creek assigned a security interest to First American as additional

collateral in the form of a TIF note from the Village of Hoffman Estates. A pledge and security

agreement (TIF Pledge) memorialized the assignment. The TIF note had a principal amount of

up to $3,584,840 and provided the holder with annual interest payments of several hundred

thousand dollars from a portion of collected tax revenue. The TIF note provided:

“The note, together with the interest thereon, is a limited obligation of the Village,

payable solely and only from the collection of the Pledged Taxes and the amounts on

deposit in and pledged to the various funds and accounts as provided herein. No holder of

the note shall have the right to compel the exercise of any taxing power of the Village for

payment of principal thereof or interest thereon. The note does not constitute an

indebtedness of the Village or a loan of credit thereof within the meaning of any statutory

or constitutional provision.”

¶6 The TIF Pledge stated, “The bank shall not be obligated to make any sale of the TIF note

if it shall determine not to do so, regardless of the fact that notice of sale may have been given.”

¶7 Poplar Creek defaulted when the loan matured on September 1, 2017. First American

presented the TIF note to the Village and became its holder and registered owner. The Village

made four interest payments on the TIF note to First American between July 2019 and

November 2021, totaling $1,275,222.72, which First American applied toward the loan

balance, as required by the terms of the note. The TIF note expired on December 31, 2021,

with the Village’s expected final payment of about $386,000 coming in 2022.

¶8 In November 2017, First American sued Poplar Creek, the guarantors, and others to

foreclose the mortgage. Poplar Creek filed for bankruptcy, staying the foreclosure case against

it. First American filed a proof of claim for nearly $6.8 million in the bankruptcy case,

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representing amounts due on the loan as of May 15, 2018. The bankruptcy court approved the

claim and ordered a sale of the real property securing the loan. First American submitted a

credit bid of $2.1 million and applied it to the debt.

¶9 With the case against Poplar Creek stayed, First American moved for partial summary

judgment against the guarantors. After briefing, the trial court entered a written order granting

First American’s motion against each guarantor for $905,061.49 (which included 10% of the

outstanding principal or $658,700.21 plus $246,361.28 in real estate taxes First American paid)

as well as $1,000,832.44 in accrued interest, attorney’s fees, and costs. The trial court later

clarified that the judgment amounts for the accrued interest involved a single satisfaction

among the judgment debtors. The guarantors appealed, and this court affirmed. First American

Bank v. Poplar Creek, LLC, 2020 IL App (1st) 192450.

¶ 10 In supplementary proceedings, First American obtained $4,280,222.82 of the nearly $6.8

million owed on the loan, which included Walsh’s $905,000 settlement payment, the $2.1

million credit bid for the property, and the $1,275,222.72 in TIF note interest payments.

¶ 11 The three remaining guarantors filed a petition under section 12-183 of the Code of Civil

Procedure (735 ILCS 5/12-183 (West 2022)) for an order that the judgment had been satisfied.

The guarantors contended that (i) under the UCC and principles of equity, First American had

to either sell the TIF note or accept it as complete satisfaction of the judgment and (ii) First

American should have applied money it received from other sources to the judgment.

¶ 12 After briefing and discovery, the parties waived an evidentiary hearing and submitted a

joint statement of undisputed facts. The parties also submitted documentary exhibits,

affidavits, and deposition transcripts, including from their expert witnesses, who testified about

the value of the TIF note. First American’s expert, Mary O’Connor, averred the TIF note was

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a nonrecourse note because the Village had no obligation to pay principal or accrued interest

at the end of the agreement and opined that “there is no liquid public market for a contract of

this nature.” The guarantors’ expert, Howard Samuels, acknowledged the Village had no

obligation to pay principal under the TIF note but opined First American could have sold it

because “there’s a market for anything and everything.” Samuels admitted that he never tested

the TIF note’s market value, nor did he provide an amount the bank could have obtained.

¶ 13 A Village employee who managed the TIF note payments testified at a deposition that the

Village had never paid principal on the note because of insufficient tax revenues and the TIF

note did not contain a guarantee or obligation of payment, as the Village pays principal and

interest only if sufficient incremental tax revenues exist.

¶ 14 The trial court entered a written order denying the petition for satisfaction of judgment.

The court found that (i) First American had discretion under the guaranties to allocate

payments and credits as it saw fit, (ii) Illinois law did not require First American to apply the

payments and credits it received to the judgment against the guarantors rather than to the

principal debt, and (iii) double recovery was not an issue because the loan amount exceeded

the amount First American had recovered.

¶ 15 The trial court also rejected the guarantors’ argument that the UCC required First American

to sell the TIF note on the grounds that (i) the guarantors relied on permissive, not mandatory,

provisions of the UCC, (ii) the TIF Pledge gave First American discretion not to sell the TIF

note, and (iii) First American “acted in a commercially reasonable manner in retaining the TIF

Note and receiving the few remaining annual interest-only payments due under the Note.”

¶ 16 In addressing commercial reasonableness, the court listed the “known challenges and

obstacles” First American faced in trying to sell the TIF note, including “(1) it was an

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underperforming TIF Note; (2) no principal sum had ever been paid on the Note because of

insufficient tax revenue; (3) all of the interest that had accrued on the Note had not been paid

because of insufficient tax revenue; (4) the tax revenue to pay interest or principal was deficient

and stagnant; (5) the Village was only conditionally responsible for payments on the Note

(only if sufficient tax revenues existed); and (6) the TIF Note had only a limited remaining life

and was set to expire as of December 31, 2021.”

¶ 17 The court concluded equitable principles did not support the guarantors’ argument that

retaining the TIF note satisfied the judgment because (i) First American “exercised its rights

under the TIF Pledge” to become the holder and registered owner of the note, (ii) the

bankruptcy court acknowledged First American accepted the TIF note “ ‘[i]n partial

satisfaction’ ” of the judgment, and (iii) the guarantors’ “expert did not support their equitable

claim,” having confirmed the TIF note had limited value.

¶ 18 Analysis

¶ 19 A proceeding under section 12-183 determines whether all money due has been paid and a

judgment has been satisfied. Work Zone Safety, Inc. v. Crest Hill Land Development, L.L.C.,

2015 IL App (1st) 140088, ¶ 15. Once a judgment has been paid in full, the defendant becomes

statutorily entitled to receive a release. Otto Baum Co. v. Süd Family Ltd. Partnership, 2020

IL App (3d) 190054, ¶ 21.

¶ 20 Generally, a reviewing court will reverse a release of judgment only where the trial court

abused its discretion. Id. Abuse of discretion occurs when no reasonable person would take the

view adopted by the court. U.S. Bank National Ass’n v. Miller, 2020 IL App (1st) 191029,

¶ 33. An error of law can constitute an abuse of discretion. US Bank, National Ass’n v. Avdic,

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2014 IL App (1st) 121759, ¶ 18. We review de novo issues of statutory construction, which

are questions of law. Board of Education of Chicago v. Moore, 2021 IL 125785, ¶ 18.

¶ 21 Language of the TIF Pledge

¶ 22 The guarantors argue the trial court erred in finding that the TIF Pledge exempted First

American from having to sell the TIF note.

¶ 23 Contract construction seeks to give effect to the parties’ intent. Gallagher v. Lenart, 226

Ill. 2d 208, 232-33 (2007) (intent is not ascertained from detached portions of contract or clause

or provision but emerges from plain and ordinary meaning of contract’s language). Moreover,

courts interpret contracts “as a whole, viewing each part in light of the others.” Id. at 233.

¶ 24 The guarantors contend the trial court erred in its interpretation of the TIF Pledge provision

that First American “shall not be obligated to make any sale of the TIF Note if it shall determine

not to do so, regardless of the fact that notice of sale may have been given.” According to the

guarantors, First American cannot hold the note indefinitely without selling it, but should First

American give notice of a sale, it has no obligation to proceed with it. We disagree.

¶ 25 Under the guise of construing the provision, the guarantors twist unambiguous plain

language that gives First American unfettered discretion to retain the TIF note. Unless contrary

to public policy, which the guarantors do not argue, the provision must be enforced. See Village

of Oak Park v. Schwerdtner, 288 Ill. App. 3d 716, 719 (1997) (courts will not enforce contract

contrary to public policy as reflected in constitution, statutes, or judicial decisions).

¶ 26 The UCC

¶ 27 The guarantors argue that, under the UCC, a creditor that takes possession of collateral

must either (i) accept it in satisfaction of the judgment or (ii) sell it. They assert that First

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American did neither by retaining the TIF note while still trying to collect from the guarantors

and, thus, the judgment against them has been satisfied.

¶ 28 To arrive at their desired result, the guarantors construe the relevant UCC provisions

regarding accepting collateral as mandatory and apply the doctrine of in pari materia, which

views sections of a statute as a whole and gives them “harmonious effect.” Citizens Opposing

Pollution v. ExxonMobil Coal U.S.A., 2012 IL 111286, ¶ 24. According to the guarantors, the

UCC sections only have a “harmonious effect” if a creditor must choose between retaining the

collateral in satisfaction of the loan or selling it.

¶ 29 Section 9-609 of the UCC provides, “[a]fter default, a secured party *** may take

possession of the collateral.” (Emphasis added.) 810 ILCS 5/9-609(a)(1) (West 2022). Further,

under section 9-610(a), “[a]fter default, a secured party may sell, lease, license, or otherwise

dispose of any or all of the collateral in its present condition or following any commercially

reasonable preparation or processing.” (Emphasis added.) Id. § 9-610(a). Section 9-620(a)

specifies that “a secured party may accept collateral in full or partial satisfaction of the

obligation.” (Emphasis added.) Id. § 9-620(a). Once a secured party accepts collateral in full

or partial satisfaction of an obligation, then section 9-622(a) transfers to the secured party all

of the debtor’s rights in the collateral and discharges (i) the obligation to the extent consented

to by the debtor, (ii) the security interest, and (iii) other subordinate interest. Id. § 9-622(a).

¶ 30 The guarantors then point to comments 2 and 9 of section 9-620. After taking possession,

comment 2 says that section 9-620 “deal[s] with strict foreclosure, a procedure by which the

secured party acquires the debtor’s interest in the collateral without the need for a sale or other

disposition under Section 9-610.” 810 ILCS Ann. 5/9-620, Uniform Commercial Code

Comment 2 (Smith-Hurd 2022). Comment 9 says, “legislatures should conform those laws so

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that they mesh well with this section and Section 9-610, and courts should construe those laws

and this section harmoniously.” Id. cmt. 9. The guarantors assert that, because the comments

to section 9-620’s acceptance provisions mention section 9-610’s sale provision, the sections

together require a creditor to sell the collateral or retain it in complete satisfaction of the debt.

¶ 31 We reject the guarantors’ specious reading of the UCC. Sections 9-610 and 9-620,

specifically comment 5 to section 9-620, state the contrary of the guarantors’ position: “A

debtor’s voluntary surrender of collateral to a secured party and the secured party’s acceptance

of possession of the collateral does not, of itself, necessarily raise an implication that the

secured party intends or is proposing to accept the collateral in satisfaction of the secured

obligation under this section.” Id. cmt. 5. This defeats the guarantors’ contention that accepting

collateral satisfies a debt.

¶ 32 Moreover, had the legislature intended to impose a mandatory obligation on a creditor

regarding collateral, it could have done so as in section 9-620, which mandates the disposition

of consumer goods under certain circumstances. See 810 ILCS 5/9-620(e) (West 2022). The

legislature imposed no similar obligations on creditors regarding other types of collateral.

¶ 33 As for interpreting the word “may” in the article 9 UCC provisions as permissive, the

guarantors assert that case law supports a finding that, although a creditor “may” choose to sell

the collateral or retain it in satisfaction of the debt, it “must” choose between one of those two

options.

¶ 34 But the guarantors bypass that “may” will be construed to mean “shall” when the rights of

the public or third persons depend on exercising the duty to which it refers. Figures v. Swank,

128 Ill. App. 2d 211, 216 (1970). The UCC statutory provisions here do not involve public or

third parties’ rights, distinguishing the cases cited by the guarantors. For instance, in Bourke v.

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Grey Wolf Drilling Co., 2013 WY 93, ¶ 18, 305 P.3d 1164 (Wyo. 2013), the Wyoming

Supreme Court held that a statute stating that actions against nonresidents and foreign

corporations “may be brought” where the cause of action arose or where the plaintiff resides

was mandatory in the sense that a nonresident or foreign corporation must choose one of those

options. (Internal quotation marks omitted.) The article 9 provisions on which the guarantors

rely do not have similar language.

¶ 35 Moreover, the guarantors misconstrue section 9-620 to conclude that retaining collateral

means a creditor has “accepted” it in complete satisfaction of the debt obligation. Under that

section, acceptance requires more than retaining collateral to trigger the total or partial

satisfaction provision. As noted in comment 5 to section 9-620, “[t]o ensure that the debtor

cannot unilaterally cause an acceptance of collateral,” “acceptance does not occur unless, in

addition, the secured party consents to the acceptance in an authenticated record or sends to

the debtor a proposal.” 810 ILCS Ann. 5/9-620, Uniform Commercial Code Comment 5

(Smith-Hurd 2022). Nothing in the record suggests an agreement on accepting the collateral in

full or partial satisfaction of the obligation.

¶ 36 Thus, we find no support in the UCC for the guarantors’ illogical Catch-22 interpretation.

¶ 37 Commercial Reasonableness

¶ 38 The guarantors argue the trial court erred in considering whether First American’s decision

to retain the TIF note was commercially reasonable. According to the guarantors, commercial

reasonableness is irrelevant when a creditor has two choices—selling the collateral or

accepting it to satisfy the debt. As noted, the UCC does not impose that choice. (At oral

argument, counsel arguing for the guarantors conceded that our adopting their position would

make new law.) Moreover, under section 9-607, a secured creditor must act in a commercially

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reasonable manner when enforcing and collecting a security interest. 810 ILCS 5/9-607(c)

(West 2022).

¶ 39 Based on the testimony of the experts and the evidence, the trial court did not abuse its

discretion in finding that First American acted in a commercially reasonable manner by

retaining the TIF note.

¶ 40 First American’s expert opined that a nonrecourse note, like the TIF note, has “no liquid

public market” because the Village was not obligated to pay principal or accrued interest at the

end of the agreement. The guarantors’ expert, Howard Samuels, never placed a value on the

TIF note, opining it could be sold because “there’s a market for anything and everything.”

When reminded that the Village had no obligation to pay out the principal on the TIF note,

Samuels responded that he believes something has value until he is “told from somebody ***

that it doesn’t.” Despite stating that the market would determine the value of the TIF note,

Samuels acknowledged he did not attempt to determine what a buyer would pay for a TIF note

on which the Village had no obligation to make payments.

¶ 41 The guarantors also contend that the trial court ignored relevant cases that have held

retaining collateral is not commercially reasonable. But none of the cases involve collateral

that, as here, is a nonrecourse note. For instance, in In re Nardone, 70 B.R. 1010 (Bankr. D.

Mass. 1987), the debtor used a health spa’s equipment to partly secure a $50,000 loan. When

the debtor went out of business, the creditor continued to operate the health club under a

different name using the collateral. Id. at 1012. The bankruptcy court found that, by retaining

collateral that equaled or exceeded the debt, the creditor violated a statute requiring a creditor

to dispose of collateral in a commercially reasonable method, manner, time, and place. Id. at

1017.

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¶ 42 Similarly, in H.V. Funding, Inc. v. Ernest Vakkas & Sons, Inc., 531 N.Y.S.2d 484 (Dist.

Ct. 1988), after a defendant who leased phone equipment defaulted, the plaintiff repossessed

and retained the equipment and sought the balance due under the lease. The trial court found

this violated the UCC by not disposing of the equipment in a commercially reasonable manner

after notice to the debtor. Id. at 486.

¶ 43 Unlike Nardone and H.V. Funding, the TIF note’s value does not equal or exceed the debt.

Indeed, based on the expert witnesses’ deposition testimony, it had almost no fair market value,

as the Village did not have to make payments on it. The note’s value solely depended on the

annual interest payments the Village paid to First American until the note expired. Thus, First

American’s decision to retain the TIF note, collect interest payments, and apply them to the

debt was commercially reasonable.

¶ 44 Also without merit is the guarantors’ contention that First American’s retention of the TIF

note created a rebuttable presumption that its value was equal to the judgment. The guarantors

rely on section 9-626 of the UCC (810 ILCS 5/9-626 (West 2022)). Under that section, when

a deficiency exists and the secured party fails to prove collection, enforcement, disposition, or

acceptance was conducted in accord with the UCC, “the amount of proceeds that would have

been realized is equal to the sum of the secured obligation, expenses, and attorney’s fees unless

the secured party proves that the amount is less than that sum.” Id. § 9-626(4). Based on the

evidence, the TIF note was worth no more than the remaining interest payments, discounted

for time and risk. Thus, the trial court did not abuse its discretion in holding that First American

did not have to sell the TIF note and that retaining it did not satisfy the judgment.

¶ 45 Principles of Equity

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¶ 46 The guarantors contend that, the UCC aside, principles of equity require First American’s

decision to retain the TIF note to qualify as satisfying the judgment. For support, the guarantors

primarily rely on Heller v. Lee, 130 Ill. App. 3d 701 (1985), and International Supply Co. v.

Campbell, 391 Ill. App. 3d 439 (2009). But in both Heller and International Supply, the courts

determined that retaining collateral that had value and seeking to enforce the judgment

constituted a windfall. First American has not obtained a windfall because the amount owed

far exceeds the TIF note’s meager (at best) value.

¶ 47 In Heller, after the trial court entered a monetary judgment for the plaintiff, the defendant

posted an appeal bond consisting of a deed to real property and a certificate of deposit. Heller,

130 Ill. App. 3d at 702. After the bond was released, the plaintiff received the certificate of

deposit and took title to the property but only applied the value of the certificate of deposit

against the judgment. The plaintiff filed collection proceedings on the deficiency. The

defendants sought release from the judgment and return of excess on the bond under section

12-813. The trial court dismissed the petition. Id. We found retaining the property caused “a

windfall,” entitling the defendants to equitable relief. Id. at 703. The court remanded with

directions “to sell the property, apply the proceeds to the judgment, and remit the excess, if

any, to the defendants.” Id.

¶ 48 In International Supply, the plaintiffs assisted the defendants in securing loans for a land

development in exchange for a personal guaranty and escrow of two property deeds.

International Supply, 391 Ill. App. 3d at 441-42. After the defendants defaulted, the plaintiffs

took title to the properties and sued to enforce the guaranty. On appeal, the court explained

that, by taking “full ownership and control” of the collateral properties, the plaintiffs accepted

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the properties “as substitute performance in full satisfaction of defendants’ obligation under

the personal guaranty” and were not entitled to further damages. Id. at 451.

¶ 49 The guarantors also argue that they expected the TIF note to satisfy the judgment. But

under the TIF note and pledge, the guarantors’ expectation that First American would sell the

TIF note was unreasonable. The TIF Pledge agreement, which governs First American’s

obligation, does not obligate First American “to make any sale of the TIF note if it shall

determine not to do so.” And the guarantors knew the Village did not have to pay principal on

the note, and after the project was abandoned, the TIF note had immensely less value than

initially contemplated.

¶ 50 Payments From Other Sources

¶ 51 The guarantors contend the trial court erred in finding that First American did not have to

apply payments it received from other sources toward their judgment. The guarantors argue

the trial court improperly relied on the language of the guaranties in finding that First American

had discretion in deciding how to allocate the payments and credits it received because, under

the merger doctrine, the guaranties merged with the judgment.

¶ 52 Looking first to the guaranties, they gave First American authority to apply payments

toward the debt “in such order *** as the Bank may from time to time elect.” So, the guaranties

did not require First American to first apply the payments toward the judgments.

¶ 53 Under the merger doctrine, when a court enters a judgment on a contract or other

instrument, the instrument merges into the judgment, loses all of its vitality, and ceases to bind

the parties to its execution. Poilevey v. Spivack, 368 Ill. App. 3d 412, 414 (2006) (citing Doerr

v. Schmitt, 375 Ill. 470, 472 (1941)). Once merged, the parties can maintain no further action

on the instrument at law or in equity. Id. (citing Doerr, 375 Ill. at 472). The merger doctrine

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applies only “ ‘to causes of action to bar relitigation of the same cause.’ ” (Emphasis in

original.) Id. at 415 (quoting Stein v. Spainhour, 196 Ill. App. 3d 65, 70 (1990)). It “does not

prevent a court from looking ‘beyond the judgment to see upon what it is founded, to give the

judgment its just effect.’ ” Id. at 416 (quoting Meeker v. Gray, 142 Ill. App. 3d 717, 726

(1986)).

¶ 54 In Stein, the court found that the merger doctrine did not apply because the plaintiff’s claim

did not relitigate the defendant’s liability under the contract but, instead, “sought attorney fees

which are ancillary to the primary cause of action.” Stein, 196 Ill. App. 3d at 70. Similarly, in

denying the guarantors’ section 12-183 petition, the trial court did not relitigate their liability

but gave effect to the judgment based on their guaranties. So, the merger doctrine did not

prevent the trial court from looking at the language of the guaranties.

¶ 55 Finally, the guarantors do not cite authority holding that, in collecting on a debt, a creditor

must first apply payments it receives toward a judgment against guarantors. The cases they

rely on are factually distinguishable, involving the long-standing rule against double recovery.

See Marks v. L.C.J. Construction Co., 89 Ill. App. 3d 418, 421 (1980) (assignment of judgment

to strawman purchaser discharged judgment because it was paid in full to person authorized to

receive it); Popovich v. Ram Pipe & Supply Co., 82 Ill. 2d 203, 209 (1980) (refusing to give

effect to loan agreement to extent that it would have allowed double recovery). Double

recovery, however, is not an issue.

¶ 56 Comment on Parties’ Briefs

¶ 57 The language and tone of the briefs at times veered into the hyperbolic and combative. We

are aware this case has a long history and that counsel have vigorously represented their clients’

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interests. Effective advocacy, however, never warrants impertinence, which is

counterproductive and distracting.

¶ 58 Affirmed.

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First American Bank v. Poplar Creek, LLC, 2024 IL App (1st) 230551

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 17-CH- 14974; the Hon. Patrick J. Heneghan, Judge, presiding.

Attorneys Timothy R. Herman, of Clark Hill PLC, of Chicago, for for appellant Estate of George A. Moser. Appellant: Charles R. Bernardini and Seth A. Horvath, of Nixon Peabody LLP, of Chicago, for appellant Douglas C. Altenberger.

Cornelius P. Brown and Amy E. Daleo, of Cohon Raizes & Regal LLP, of Chicago, for other appellant.

Attorneys Neal H. Levin, of Rimon P.C., and Shira R. Isenberg, of Smith, for Gambrell & Russell, LLP, both of Chicago, for appellee. Appellee:

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