JPMorgan Chase Bank, N.A. v. East-West Logistics, L.L.C.

2014 IL App (1st) 121111

• Court: Appellate Court of Illinois
• Decided: May 19, 2014
• Docket: 1-12-1111
• Status: Unpublished

Opinion

2014 IL App (1st) 121111 No. 1-12-1111 Opinion filed March 31, 2014 Sixth Division

___________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

___________________________________________________________________________

JPMORGAN CHASE BANK, N.A., Successor ) Appeal from the Circuit Court by Merger to Bank One, NA, ) of Cook County. ) Plaintiff and Counterdefendant-Appellee, ) ) No. 2008 L 051299 v. ) ) EAST-WEST LOGISTICS, L.L.C., a Nevada ) Limited Liability Company, MICHAEL ) Honorable Allen S. Goldberg and STRUCK, Not Individually But in His Capacity ) John C. Griffin, as Personal Representative of the Estate of ) Judges Presiding. James Wesley Taylor, Deceased, and EAST ) WEST LOGISTICS SUPPLY, LLC, an ) Arizona Limited Liability Company, ) ) Defendants ) ) (Arthur Wondrasek, ) ) Defendant and Counterplaintiff-Appellant). )

______________________________________________________________________________

JUSTICE HALL delivered the judgment of the court, with opinion. No. 1-12-1111

Presiding Justice Rochford and Justice Lampkin concurred in the judgment and opinion.

OPINON

¶1 On December 4, 2008, the plaintiff, JPMorgan Chase Bank, N.A. (Chase Bank), filed a

verified multicount complaint against Arthur Wondrasek1 and other named parties.

Following Mr. Wondrask's death in 2010, his estate (hereinafter the Estate) was substituted

as a defendant. In 2012, the circuit court of Cook County entered orders dismissing the

Estate's affirmative defenses and counterclaims and granted partial summary judgment to the

plaintiff, Chase Bank.

¶2 On appeal, the Estate contends as follows: the dismissal of its affirmative defenses and

counterclaims was error; the award of summary judgment to Chase Bank was error; and the

circuit court erred in ordering the Estate to pay discovery costs to Chase Bank. On review,

we find no error and affirm the orders of the circuit court.

¶3 BACKGROUND

¶4 The pertinent facts are taken from the record on appeal. In 2003, Bank One, NA, entered

into a lending relationship with defendant East-West Logistics, L.L.C. (East-West), and

furnished a line of credit to East-West in the amount of $1 million. On December 10, 2003,

Mr. Wondrasek executed a continuing guaranty of East-West's obligation under the line of

credit loan (the guaranty).

¶5 The continuing guaranty provided in pertinent part as follows:

1 Arthur Wondrasek is also referred to as Arthur Wondrasek, Jr., in the record.

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"Guaranty. To induce Bank One, NA *** (the 'Bank'), and its successors and

assigns, at its option, to make loans, extend or continue credit or some other benefit

*** present or future, direct or indirect, *** to [East-West] *** and because [Mr.

Wondrasek] has determined that executing this Guaranty is in [his] interest and to

[his] financial benefit, [Mr. Wondrasek] unconditionally guarantees to the Bank, as

primary obligor and not merely as surety, the full and prompt payment of the

Liabilities when due, whether at stated maturity, by acceleration or otherwise.

*** Limitation. [Mr. Wondrasek's] obligation under this Guaranty is unlimited.

Continued Reliance. The Bank may continue to make loans or extend credit to

[East-West] based on this Guaranty until it receives written notice of termination

from [Mr. Wondrasek], regardless of whether at any time or from time to time there

are no existing Liabilities or commitment by the Bank to make advances or other

financial accommodations for [East-West].

***

Permissible Actions. [Mr. Wondrasek] authorizes the Bank, without notice or

demand and without affecting [Mr. Wondrasek's] obligations hereunder, from time to

time to[] (a) renew, modify, compromise, extend, accelerate or otherwise change the

time for payment of, or otherwise change the terms of the Liabilities or any part

thereof, including increasing or decreasing the rate of interest thereon. *** [Mr.

Wondrasek's] obligations under this Guaranty shall not be released, diminished or

affected by (i) any act or omission of the Bank ***.

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Nature of Guaranty. This Guaranty is a guaranty of payment and not of

collection. Therefore, the Bank may insist that [Mr. Wondrasek] pay immediately,

and the Bank is not required to attempt to collect first from [East-West] ***.

*** Waivers. [Mr. Wondrasek] waives (a) to the extent permitted by law, all rights

and benefits under any laws or statutes regarding sureties, as may be amended, and

(b) any right [Mr. Wondrasek] may have to receive notice of the following matters

before the Bank enforces any of its rights (i) the Bank's acceptance of this Guaranty,

(ii) any credit that the Bank extends to [East-West], (iii) [East-West's] default, (iv)

any demand, diligence, presentment, dishonor and protest, or any action that the Bank

takes regarding [East-West] *** or any of the Liabilities, which it might be entitled to

by law or under any other agreement *** (d) any defense based on any claim that

[Mr. Wondrasek's] obligations exceed or are more burdensome than those of [East-

West],

*** Information. [Mr. Wondrasek] assumes all responsibility for being and keeping

[himself] informed of [East-West's] financial condition and assets, and of all other

circumstances bearing upon the risk of nonpayment of the Liabilities and the nature,

scope and extent of the risks that [Mr. Wondrasek] assumes and incurs under this

Guaranty and agrees that the Bank does not have any duty to advise [Mr. Wondrasek]

of information known to it regarding those circumstances or risks ***." (Emphasis

omitted.)

¶6 In its complaint, Chase Bank, the successor to Bank One since 2004, alleged that the loan

to East-West had matured on February 24, 2008, and as of November 17, 2008, East-West

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owed a balance of $1,627,339.46 on the loan. In addition, East-West was obligated to pay

attorney fees, costs and expenses incurred by Chase Bank in collecting the amounts due

under the credit agreement. In count III of the complaint, Chase Bank sought to enforce the

guaranty against Mr. Wondrasek to recover the outstanding loan balance as well as the

attorney fees, costs and expenses of collection.

¶7 On November 12, 2009, Mr. Wondrasek filed a verified answer and seven affirmative

defenses. Mr. Wondrasek admitted he had executed the guaranty as alleged in the complaint

and evidenced by an exhibit to the complaint but denied the remaining allegations for lack of

knowledge. On December 2, 2009, Chase Bank filed a motion pursuant to section 2-615 of

the Code of Civil Procedure (735 ILCS 5/2-615 (West 2008)) (the Code) to dismiss the

affirmative defenses. On October 22, 2010, following Mr. Wondrasek's death and the

substitution of the Estate, Circuit Court Judge Allen S. Goldberg dismissed six of the seven

affirmative defenses, and the Estate withdrew the remaining affirmative defense. The Estate

was given 28 days to replead the affirmative defenses.

¶8 On November 23, 2010, Chase Bank filed a motion seeking reimbursement of electronic

discovery costs from the Estate. In support of its motion, Chase Bank argued that the Estate

opposed Chase Bank's request to stay all discovery until the parties were at issue on the

pleadings, and insisted that discovery go forward.

¶9 On December 15, 2010, the Estate filed counterclaims and amended affirmative defenses.

The counterclaims sought recovery for common law fraud and under the Illinois Consumer

Fraud and Deceptive Business Practices Act (815 ILCS 505/1 et seq. (West 2010)) (the

Consumer Fraud Act). The Estate set forth the following amended affirmative defenses: (1)

extinguishment of the guaranty; (2) doctrine of equitable estoppel; (3) breach of the duty of

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good faith; and (4) setoff. As the factual basis for the counterclaims and amended

affirmative defenses, the Estate alleged that Chase Bank created phony "SOFA" accounts

(secured out of formula advance) to which the loan balance was transferred in order to hide

the existence of East-West's defaults from Mr. Wondrasek

¶ 10 On April 27, 2011, Judge Goldberg entered an order granting Chase Bank's section 2-615

motion to dismiss the Estate's counterclaims and amended affirmative defenses. Judge

Goldberg granted in part and denied in part Chase Bank's motion to assess discovery costs

and assessed the Estate $3,025.80 in costs. On June 21, 2011, Judge Goldberg entered

judgment against the Estate in the amount of $3,025.80.

¶ 11 On June 28, 2011, Chase Bank filed a motion for summary judgment on count III of the

complaint. According to Chase Bank, it was undisputed that Mr. Wondrasek executed the

guaranty and then defaulted on it, that Chase Bank was the lawful holder of the note and that

the indebtedness on the line of credit loan matured on February 28, 2008, and remained

unpaid. Since there was no genuine issue of material fact, Chase Bank maintained it was

entitled to summary judgment as a matter of law.

¶ 12 On August 16, 2011, the Estate filed a motion to strike two affidavits filed by Chase

Bank in support of its motion for summary judgment, and filed its response to Chase Bank's

summary judgment motion. The Estate argued that the affidavits were inadmissible and

therefore could not provide the necessary foundation for the admission of the documents

evidencing the loan to and the balance owed on the loan by East-West. In its response to the

summary judgment motion, the Estate argued that the motion should be denied in the absence

of any admissible evidence of the original note, any of the replacement notes or the 2007

note modification. The Estate asserted that Chase Bank failed to establish that East-West

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defaulted on the loan, that East-West owed any amount to Chase Bank and that Chase Bank

failed to provide sufficient evidence of how it calculated the loan indebtedness.

¶ 13 On September 13, 2011, the Estate filed a motion for leave to file its amended

counterclaims and second amended affirmative defenses. The Estate explained that the

amended counterclaims and second amended affirmative defenses were reasserted for appeal

purposes only. The Estate also corrected the allegations regarding the creation of the SOFA

accounts. It now alleged that the SOFA accounts were never created, but nonetheless, "when

the Bank was hypothetically shifting money around in these various fake accounts, it was

doing so in order to conceal East West's defaults, and prevent Wondrasek from cancelling his

Guaranty." The Estate also added a fifth affirmative defense. The Estate alleged that Mr.

Wondrasek was not a party to the 2007 modification agreement and, therefore, no longer a

guarantor of Chase Bank's loan to East-West. On October 12, 2011, Chase Bank filed a

motion requesting that the Estate be denied leave to file its amended counterclaim and second

amended affirmative defenses, and in the alternative, moved to dismiss. On January 5, 2012,

the Estate filed a motion for reconsideration of the order of April 27, 2011, dismissing the

counterclaims and amended affirmative defenses.

¶ 14 On January 9, 2012, Circuit Court Judge John C. Griffin granted the Estate leave to file

its amended counterclaims and second amended affirmative defenses. Judge Griffin then

granted Chase Bank's motion to dismiss the Estate's counterclaims and second amended

affirmative defenses. The remaining matters were set for hearing on March 14, 2012.

¶ 15 On March 14, 2012, Judge Griffin entered an order denying the Estate's motion for

reconsideration of the April 27, 2011, order dismissing its counterclaims and amended

affirmative defenses. The judge also denied the Estate's motion to strike the summary

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judgment affidavits. Judge Griffin granted Chase Bank's motion for partial summary

judgment as to count III of the complaint and entered judgment against the Estate in the

amount of $2,044,411.97. Since the case was continued for status on the remaining counts,

Judge Griffin made a finding pursuant to Illinois Supreme Court Rule 304(a) (Ill. S. Ct. R.

304(a) (eff. Feb. 26, 2010)) that there was no just reason to delay the enforcement or appeal

of the March 14, 2012, order. The Estate filed its notice of appeal on April 12, 2012.

¶ 16 On May 11, 2012, Judge Griffin granted Chase Bank's motion for voluntary dismissal of

counts II (breach of guaranty – estate of James Wesley Taylor) and count IV (breach of

guaranty – East West Logistics Supply, LLC) without prejudice. The order further stated

that all pending claims had been resolved.2

¶ 17 ANALYSIS

¶ 18 I. Appellate Jurisdiction

¶ 19 Initially, we must address the Estate's challenge to our jurisdiction of this appeal. The

Estate contends that this court has jurisdiction of the March 14, 2012, order but not the orders

entered prior to the entry of that order. Chase Bank maintains that after the circuit court

disposed of all the pending claims in its order of May 11, 2012, the Estate was required to

file a second notice of appeal in order to appeal those prior nonfinal orders. In the absence of

the second notice of appeal, Chase Bank maintains this court has no jurisdiction to review

any of the nonfinal orders entered prior to the March 14, 2012, order.

2 In its motion for voluntary dismissal, Chase Bank stated that the counts against East-West

had been dismissed due to its filing for bankruptcy.

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¶ 20 A. Standard of Review

¶ 21 A challenge to our jurisdiction is a question of law. In re Marriage of Demaret, 2012 IL

App (1st) 111916, ¶ 25. Questions of law are subject to de novo review. Jones v. DHR

Cambridge Homes, Inc., 381 Ill. App. 3d 18, 38 (2008).

¶ 22 B. Discussion

¶ 23 On April 12, 2012, the Estate filed its notice of appeal from the following orders of the

circuit court: (1) October 22, 2010, order dismissing the Estate's affirmative defenses; (2)

April 27, 2011, order dismissing the Estate's counterclaim and first amended affirmative

defenses and granting in part Chase Bank's motion to assess costs; (3) June 21, 2011, order

entering judgment against the Estate in the amount of $3, 025.80; (4) January 9, 2012, order

dismissing the Estate's amended counterclaim and second amended affirmative defenses; and

(5) March 14, 2012, order granting summary judgment to Chase Bank on count III of the

complaint in the amount of $2,044,411.97, denying the Estate's motion for reconsideration,

denying the Estate's motion to strike the plaintiff's affidavits, and denying the Estate's oral

motion to file additional affirmative defenses and counterclaims. The March 14, 2012, order

contained a Rule 304(a) finding by the circuit court.

¶ 24 Subject to certain exceptions, the jurisdiction of the appellate court is limited to

reviewing appeals from final judgments. Valdovinos v. Luna-Manalac Medical Center, Ltd.,

307 Ill. App. 3d 528, 537 (1999). An order is a final judgment if it terminates the litigation

on its merits or disposes of the rights of the parties' entire controversy or on some definite

part of the litigation. Citicorp Savings of Illinois v. First Chicago Trust Co. of Illinois, 269

Ill. App. 3d 293, 296-97 (1995). In order for a party to appeal from a final order which does

not resolve all of the claims raised in the case, the circuit court must make a finding pursuant

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to Rule 304(a). As we noted above, the March 14, 2012, order contained a Rule 304(a)

finding.

¶ 25 Chase Bank does not dispute that the March 14, 2012, order was a final order as to the

Estate. An appeal from a final judgment draws into issue all prior interlocutory orders which

constituted a procedural step in the progression leading to the entry of the final judgment

from which an appeal has been taken. Valdovinos, 307 Ill. App. 3d at 538.

¶ 26 We agree with the Estate that the orders dismissing the counterclaims and affirmative

Defenses and the judgment order awarding discovery costs were appealable as steps in the

progression to the grant of summary judgment. Sacramento Crushing Corp. v. Correct/All

Sewer, Inc., 318 Ill. App. 3d 571, 574 (2000). We conclude that we have jurisdiction to

consider the orders listed in the notice of appeal.

¶ 27 II. Affirmative Defenses

¶ 28 A. Standard of Review

¶ 29 The de novo standard applies to our review of a circuit court's dismissal pursuant to

section 2-615 of the Code. See R&B Kapital Development, LLC v. North Shore Community

Bank & Trust Co., 358 Ill. App. 3d 912, 920 (2005).

¶ 30 B. Discussion

¶ 31 An affirmative defense must allege facts with the same degree of specificity required to

establish a cause of action. International Insurance Co. v. Sargent & Lundy, 242 Ill. App. 3d

614, 630 (1993). As with all section 2-615 motions, a section 2-615 motion to dismiss

affirmative defenses admits all well-pleaded facts constituting the defenses and attacks only

the legal sufficiency of those facts. Sargent & Lundy, 242 Ill. App. 3d at 630-31. An

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affirmative defense should not be stricken where well-pleaded facts raise the possibility that

the party asserting the defense will prevail. Sargent & Lundy, 242 Ill. App. 3d at 631. A

guaranty is a contract; therefore, we apply the standards governing the interpretation of

contracts. T.C.T. Building Partnership v. Tandy Corp., 323 Ill. App. 3d 114, 118 (2001). The

guaranty is strictly construed in favor of the guarantor, but only where some doubt has arisen

as to the meaning of the guaranty language. T.C.T. Building Partnership, 323 Ill. App. 3d at

118-19. Terms of a guaranty which are clear and unambiguous must be given effect as

written. T.C.T. Building Partnership, 323 Ill. App. 3d at 119. Under such circumstances, the

meaning of a guaranty presents a question of law. T.C.T. Building Partnership, 323 Ill. App.

3d at 119.

¶ 32 1. Extinguishment of the Guaranty

¶ 33 The Estate contends that any liability it owed on the guaranty was extinguished by Chase

Bank when it materially increased Mr. Wondrasek's risk as the guarantor by continuing to

lend to East-West despite existing defaults and hiding those defaults by purporting to create

phony SOFA accounts for East-West into which Chase Bank could move loan funds without

informing Mr. Wondrasek. A guarantor will be discharged pro tanto of his obligation where,

without the consent of the guarantor, the creditor takes any action to vary the terms of the

principal obligation, to increase the guarantor's risk or to deprive the guarantor of the

opportunity to protect himself. McHenry State Bank v. Y&A Trucking, Inc., 117 Ill. App. 3d

629, 633 (1983). The Estate argues that the guaranty did not cover loans made in violation of

the loan documents. The Estate points to the "conditions precedent to each extensions of

credit" contained in the line of credit agreement between Chase Bank and East-West. An

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extension of credit could be obtained provided that "no default has occurred in any provision

of [the line of credit] agreement, the notes or any agreement related to the credit facilities."

¶ 34 The language of the guaranty defeats the affirmative defense of extinguishment. The

terms of the guaranty provide that Mr. Wondrasek "unconditionally guaranteed" payment of

the liabilities; his liability under the guaranty was "unlimited"; Chase Bank could continue to

make loans to East-West under the guaranty until it received a written termination notice

from Mr. Wondrasek; Mr. Wondrasek's obligations under the guaranty were not "released,

diminished or affected by (1) any act or omission" of Chase Bank. Thus, the guaranty was

not "extinguished" because loans were made when East-West was in default.

¶ 35 As to the allegations that Chase Bank failed to notify and concealed the East-West's

defaults via the phony SOFA accounts, Mr. Wondrasek waived "all rights and benefits under

any laws or statutes regarding sureties" and waived his right of notice of "any credit [Chase

Bank] extends to [East-West] or "[East-West's] default *** or of any of the Liabilities which

it might be entitled to by law or under any other agreement." A waiver that is clear and

unambiguous must be given effect according to its language. Morris v. Columbia National

Bank of Chicago, 79 B.R. 777, 782 (N.D.Ill.1987) (citing Du Quoin State Bank v. Daulby,

115 Ill. App. 3d 183, 185-86 (1983) and other Illinois cases). This is true even where the

guaranty agreement contains broad statements of guarantor liability. Daulby, 115 Ill. App.

3d at 186.

¶ 36 Furthermore, as the guarantor, Mr. Wondrasek was responsible for keeping himself

informed of "[East-West's] financial condition and assets, and of all other circumstances

bearing upon the risk of nonpayment of the Liabilities," and he acknowledged that Chase

Bank owed no duty to inform him of those risks or circumstances. The Estate does not allege

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that Mr. Wondrasek kept himself informed about East-West's financial dealing with the

plaintiff or that Mr. Wondrasek ever contacted Chase Bank to determine the status of the loan

to East-West. We find significant the absence of any allegation that Chase Bank provided

Mr. Wondrasek with false information in response to any inquiry he made about the status of

the line of credit extended to East-West.

¶ 37 The allegations in the extinguishment defense were insufficient to state a cause of action.

Therefore, its dismissal was proper.

¶ 38 2. Equitable Estoppel

¶ 39 The Estate argues that its allegations were sufficient to state the affirmative defense of

equitable estoppel. The Estate alleged Mr. Wondrasek was prevented from discovering that

Chase Bank continued to lend money to East-West even though East-West was in default

because Chase Bank "purported" to create phony accounts in which to hide the defaults, thus

preventing Mr. Wondrasek from discovering them.

¶ 40 "To establish equitable estoppel, the party claiming estoppel must demonstrate that: (1)

the other person misrepresented or concealed material facts; (2) the other person knew at the

time he or she made the representations that they were untrue; (3) the party claiming estoppel

did not know the representations were untrue when they were made and when they were

acted upon; (4) that the other person intended or reasonably expected that the party claiming

estoppel would act upon the representations; (5) the party claiming estoppel reasonably relied

upon the representations in good faith to his or her detriment; and (6) the party claiming

estoppel would be prejudiced by his or her reliance on the representations if the other person

is permitted to deny the truth thereof." Geddes v. Mill Creek Country Club, Inc., 196 Ill. 2d

302, 313-14 (2001).

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¶ 41 An estoppel may be based on a failure to disclose when coupled with an affirmative

statement or act, misleading the party asserting estoppel but only when there is knowledge of

the facts on one side and ignorance on the other. Maniez v. Citibank, F.S.B., 404 Ill. App. 3d

941, 950 (2010). Whether an estoppel defense has been established is dependent on the facts

of each case. Maniez, 404 Ill. App. 3d at 950.

¶ 42 The Estate failed to sufficiently allege that it was entitled to raise the defense of estoppel.

Under the guaranty, it was Mr. Wondrasek's responsibility to keep informed of East-West's

financial situation related to whether East-West would be able to repay its liabilities to Chase

Bank and affecting the scope of Mr. Wondrasek's liability under the guaranty. In addition,

under the guaranty, Mr. Wondrasek agreed that Chase Bank owed no duty to inform him of

any information it possessed that concerned his risk as the guarantor.

¶ 43 " ' "A person is not estopped by his silence where there is no positive duty and

opportunity to speak, or the party is in ignorance of his rights." ' " Maniez, 404 Ill. App. 3d

at 950 (quoting Town & Country Bank of Springfield v. James M. Canfield Contracting Co.,

55 Ill. App. 3d 91, 95 (1977), quoting Sabin D. Puterbaugh, Illinois Chancery Pleading and

Practice § 675, at 1372 (7th ed. 1930)). Chase Bank owed no duty to keep Mr. Wondrasek

informed of East-West's borrowing and defaults.

¶ 44 Moreover, the Estate does not allege that Chase Bank made misrepresentations regarding

East-West's defaults and the extensions of credit in response to Mr. Wondrasek's inquires, or

even that Mr. Wondrasek made any inquires about the status of East-West's loans from Chase

Bank. The Estate alleged in its counterclaims and amended affirmative defenses that Chase

Bank created phony SOFA accounts to hide East-West's defaults. However, in its amended

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counterclaims and second amended affirmative defenses, the Estate corrected that allegation

by alleging that Chase Bank "did not actually create the so-called SOFA account."

¶ 45 Given the respective duties of the parties under the guaranty and the Estate's failure to

allege facts to support its claim that Chase Bank concealed East-West's defaults from it, the

dismissal of the affirmative defense of equitable estoppel was proper.

¶ 46 3. Breach of the Duty of Good Faith

¶ 47 The Estate contends that the circuit court erred when it ruled that it had waived this

defense under the language of the guaranty. In Illinois, "a waiver of defense clause does not

'expressly disavow' the covenant of good faith implied into all contracts." Chemical Bank v.

Paul, 244 Ill. App. 3d 772, 782 (1993).

¶ 48 "Every contract implies good faith and fair dealing between the parties to it." Bank One,

Springfield v. Roscetti, 309 Ill. App. 3d 1048, 1059 (1999). A bank has a duty of good faith

in dealing with a guarantor. Roscetti, 309 Ill. App. 3d at 1059. The duty of good faith

requires "the party vested with contractual discretion to exercise it reasonably, and he may

not do so arbitrarily, capriciously, or in a manner inconsistent with the reasonable

expectation of the parties." Roscetti, 309 Ill. App. 3d at 1059-60. "A creditor has a good-

faith obligation to inform the guarantor of facts known to the creditor that materially increase

the guarantor's risk beyond that which the creditor has reason to believe the guarantor

intended to assume, and which the creditor may reasonably believe are unknown to the

guarantor." Roscetti, 309 Ill. App. 3d at 1060. Notwithstanding these principles, "parties to

a contract are entitled to enforce its terms to the letter, and an implied covenant of good faith

cannot overrule or modify the express terms of a contract." Roscetti, 309 Ill. App. 3d at

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1060. A guarantor may not rely on the covenant of good faith and fair dealing to read into a

contract an obligation that does not exist. Roscetti, 309 Ill. App. 3d at 1060.

¶ 49 The Estate maintains that Chase Bank breached its duty of good faith and fair dealing

when it continued to lend money to East-West, knowing that East-West could not repay the

loans. It further maintains that Chase Bank breached its duty of good faith by hiding East-

West's defaults in other accounts.

¶ 50 The duty of good faith and fair dealing does not alter the terms of the guaranty. Under

the guaranty, it was Mr. Wondrasek's responsibility to keep apprised of East-West's financial

state in order to ascertain his own risk as the guarantor, and he agreed that Chase Bank was

not obligated to provide any information bearing on those risks to him. Finally, since the

phone SOFA accounts were never created by Chase Bank, the Estate's claim that Chase Bank

"hid" the defaults in these accounts lacks a factual basis.

¶ 51 We conclude that the Estate failed to sufficiently allege a breach of the duty of good faith

and fair dealing by Chase Bank. The circuit court's dismissal of this affirmative defense was

proper.

¶ 52 4. Setoff

¶ 53 In its amended affirmative defenses, the Estate alleged that it was entitled to a setoff in

the amount it recovered on its common law and consumer fraud claims against any amount

the Chase Bank recovered under the guaranty. The Estate argues that the circuit court erred

when it dismissed its setoff claim under the guaranty's waiver of defenses provision. Chase

Bank responds that the affirmative defense of setoff was properly dismissed because it

should have been pleaded as a counterclaim. Chase Bank urges this court not to follow the

decision in Lake County Grading Co. of Libertyville, Inc. v. Advance Mechanical

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Contractors, Inc., 275 Ill. App. 3d 452 (1995), wherein the Second District Appellate Court

allowed an affirmative defense alleging a setoff to stand as a counterclaim.

¶ 54 Under section 2-613(d) of the Code, a party has the right to plead a defense based on

affirmative matter which avoids or defeats the cause of action. 735 ILCS 5/2-613(d) (West

2010). Counterclaims differ from affirmative defenses in that counterclaims seek affirmative

relief whereas affirmative defenses attempt to defeat the cause of action. Dudek, Inc. v.

Shred Pax Corp., 254 Ill. App. 3d 862, 871 (1993). In Dudek, this court held that the

plaintiff that raised setoffs as an affirmative defense did not lose the right to its claim of

setoffs when it failed to plead them explicitly as counterclaims. Dudek, 254 Ill. App. 3d at

871.

¶ 55 In this case, the Estate pleaded a setoff claim as an affirmative defense rather than one of

its counterclaims. We choose to address its dismissal in connection with the dismissal of the

Estate's other counterclaims.

¶ 56 5. Integration Clause

¶ 57 The Estate argues that the circuit court erred when it ruled that the integration provision

contained in the 2005 lending agreement between Chase Bank and East-West did not

terminate Mr. Wondrasek's obligations under the guaranty.

¶ 58 Initially, we observe that in both its opening and reply brief, the Estate addressed the

arguments and authorities relied on by Chase Bank but cited no authority supporting its

argument that the integration clause in the 2005 credit agreement terminated its 2003

guaranty. Illinois Supreme Court Rule 341(h)(7) (Ill. S. Ct. R. 341(h)(7) (eff. July 1, 2008))

requires a party to support its argument with citations to authority. Failure to do so results in

the forfeiture of the argument on appeal. In re Marriage of Hendry, 409 Ill. App. 3d 1012,

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1019 (2011). Forfeiture aside, we agree with the circuit court that the integration clause in

the 2005 note did not terminate Mr. Wondrasek's 2003 guaranty.

¶ 59 The integration clause provided in pertinent part as follows:

"This agreement, the Notes, and any agreement related to the Credit Facilities

embody the entire agreement and understanding between [Chase Bank] and [East-

West] and supersede all prior agreements and understandings relating to their subject

matter."

¶ 60 The inclusion of an integration clause in a contract manifests the parties' intention to

protect themselves against misinterpretations which might arise from extrinsic evidence.

L.D.S., LLC, v. Southern Cross Food, Ltd., 2011 IL App (1st) 102379, ¶ 30. In L.D.S., LLC,

the lease identified the parties to the lease as L.D.S. and Southern Cross, and the integration

clause provided that the lease contract " 'contains all of the agreements of the parties hereto'

(emphasis added)." L.D.S., LLC, 2011 IL App (1st) 102379, ¶ 32. The reviewing court

determined that the "plain language of the integration clause is limited to agreements of the

parties." Because the guarantor was not listed as a party to the lease, "the integration clause

does not speak to any agreements made between him and either L.D.S. or Southern Cross."

L.D.S., LLC, 2011 IL App (1st) 102379, ¶ 32.

¶ 61 In the present case, the 2005 credit agreement provided that it was between Chase Bank

and East-West. The agreement defined credit facilities as "all extensions of credit" from

Chase Bank to East-West, in existence now or in the future. "Notes" were defined as "all

promissory notes, instruments and/or contracts evidencing the terms and conditions of any of

the Credit Facilities."

18 No. 1-12-1111

¶ 62 The plain language of the 2005 credit agreement limits it to the agreements between the

Chase Bank and East-West, which involve the extensions of credit and notes pertaining to the

extensions of credit. Mr. Wondrasek was not a party to the 2005 credit agreement, the

extensions of credit or the notes. Therefore, Mr. Wondrasek's guaranty was not terminated

under the integration clause in the 2005 credit agreement. The circuit court correctly

dismissed the Estate's termination defense.

¶ 63 Except for the setoff claim, the affirmative defenses were properly dismissed for failure

to state a cause of action.

¶ 64 III. Counterclaims

¶ 65 The Estate contends that the dismissal of its counterclaims for common law fraud and

consumer fraud was error. In dismissing the counterclaims, the circuit court found that under

the terms of the guaranty, Mr. Wondrasek agreed that any act or omission by Chase Bank

was not a basis for releasing Mr. Wondrasek from his obligations under the guaranty. The

Estate points out that an exculpatory clause cannot protect persons from the results of their

willful and wanton misconduct. See Zimmerman v. Northfield Real Estate, Inc., 156 Ill. App.

3d 154, 164-65 (1986); but see RBS Citizens, National Ass'n v. RTG-Oak Lawn, LLC, 407 Ill.

App. 3d 183, 187 (2011) (reviewing court "would be inclined to find" that a waiver of

defenses clause applied to common law fraud).

¶ 66 A. Common Law Fraud

¶ 67 To state a claim for common law fraud, a party must allege the following elements: " '(1)

a false statement of material fact; (2) by one who knows or believes it to be false; (3) made

with the intent to induce action by another in reliance on the statement; (4) action by the

other in reliance on the truthfulness of the statement; and (5) injury to the other resulting

19 No. 1-12-1111

from that reliance.' " Benson v. Stafford, 407 Ill. App. 3d 902, 921 (2010) (quoting State

Security Insurance Co. v. Frank B. Hall & Co., 258 Ill. App. 3d 588, 592 (1994)).

Intentional concealment of a material fact is the equivalent of a false statement of material

fact. Zimmerman, 156 Ill. App. 3d at 161. Where a person has a duty to speak, his failure to

disclose material information constitutes fraudulent concealment. Zimmerman, 156 Ill. App.

3d at 161.

¶ 68 In support of its fraud counts, the Estate alleged that Chase Bank owed a duty to Mr.

Wondrasek to disclose to him any risks that increased his obligations under the guaranty; that

Chase Bank did not inform him of the risks; that Chase Bank concealed the risks from Mr.

Wondrasek by moving East-West's loan balances into phony accounts; that Chase Bank

intended Mr. Wondrasek to rely on its omissions and concealments; that Mr. Wondrasek did

rely on the omissions and concealment and was actually deceived by them; and that Chase

Bank's unfair and deceptive acts resulted in damage to Mr. Wondrasek.

¶ 69 The Estate failed to allege sufficient facts to establish a cause of action for common law

fraud. The guaranty specifically provided that Chase Bank had no duty to provide

information to Mr. Wondrasek bearing on the risks he assumed under the guaranty. In

addition, Mr. Wondrasek agreed that Chase Bank did not have to notify him of any credit the

plaintiff extended to East-West. Mr. Wondrasek accepted the responsibility of keeping

informed of East-West's financial condition and the risks he assumed under the guaranty.

Under the guaranty, Chase Bank owed no duty to speak.

¶ 70 The party must allege that its reliance was justified. Benson, 407 Ill. App. 3d at 921. To

determine whether reliance was justified, the court considers the facts the party knew and

those facts which it could have learned through ordinary prudence. Benson, 407 Ill. App. 3d

20 No. 1-12-1111

at 921. The Estate did not allege that Mr. Wondrasek made any effort to obtain information

about the status of East-West's loan from either East-West or Chase Bank. Moreover, while

the Estate alleged that Mr. Wondrasek was actually deceived by Chase Bank's alleged failure

to disclose and alleged concealment of East-West's defaults, the Estate failed to allege that

Mr. Wondrasek kept himself informed of the status of East-West's finances or sought

information about the status of the loans from Chase Bank.

¶ 71 We conclude that the Estate failed to state a cause of action for common law fraud.

¶ 72 B. Consumer Fraud Act

¶ 73 "The elements of a cause of action brought pursuant to the Consumer Fraud Act are: (1)

a deceptive act or practice by defendant, (2) an intent on the defendant's part that plaintiff

rely on the deception, and (3) the deception occurred in the course of conduct involving trade

or commerce." Nilsson v. NBD Bank of Illinois, 313 Ill. App. 3d 751, 764 (1999). While

reliance on the part of the plaintiff is not an element of statutory consumer fraud, a claim

must show that the consumer fraud proximately caused the plaintiff's injury. Nilsson, 313 Ill.

App. 3d at 764.

¶ 74 Under the terms of the guaranty, Mr. Wondrasek agreed that Chase Bank had no duty to

disclose to him information about the risk he had assumed in guarantying East-West's loan.

See RBS Citizens, National Ass'n, 407 Ill. App. 3d at 192 (the defendants' claim under the

Consumer Fraud Act that the calculation of the interest rate was deceptive and based on

misrepresentations was rejected where the interest provision and the interest charged did not

deviate from the terms of the note).

¶ 75 In support of its Consumer Fraud Act claim, the Estate alleged that Chase Bank

employees developed a plan whereby Chase Bank could continue to lend money to East-

21 No. 1-12-1111

West, despite the fact East-West was in default, because it had Mr. Wondrasek's guaranty.

To prevent Mr. Wondrasek from terminating his guaranty, Chase Bank:

"came up with the plan to move the borrowing that was causing the default under the

Borrowing Base into the dummy SOFA account.

24. [Chase Bank] internally approved the plan and, as a result, internally made

the default seem to disappear. Yet, the Bank did not actually create or document the

so-called 'SOFA' account. As a result, it was a complete fiction that the Bank used to

cover-up East-West's default under the Line of Credit and thereby, justify giving

more and more money to a borrower that the Bank knew it could never repay it.

25. By setting up the phony account to conceal East-West's Borrowing Base

defaults, the Bank materially increased Wondrasek's risk under the Guaranty. As

such the Bank had a duty to disclose this material increase that the Bank itself had

created."

¶ 76 According to the allegations in the Estate's counterclaims and amended affirmative

defenses, the alleged deception was to conceal East-West's defaults from Mr. Wondrasek by

creating the phony SOFA accounts. But in its amended counterclaims and second amended

affirmative defenses, the Estate then corrected the allegation to allege that the phony SOFA

accounts were never created. The Estate failed to make a sufficient showing that Chase

Bank's plan to deceive Mr. Wondrasek by creating phony SOFA accounts constituted a

deceptive act or practice since the accounts were never created. The Estate further failed to

make a sufficient showing that the alleged deceptive acts were a proximate cause of his

injury, i.e., his liability under the guaranty.

22 No. 1-12-1111

¶ 77 The Estate failed to state a cause of action for common law fraud or for violation of the

Consumer Fraud Act. We conclude that the dismissal of the counterclaims was proper.

Therefore, the Estate was not entitled to a setoff based on these claims, and the dismissal of

the setoff affirmative defense was proper

¶ 78 IV. Summary Judgment

¶ 79 The Estate contends that the circuit court erred when it denied its motion to strike two

affidavits in support of Chase Bank's motion for judgment and granted summary judgment to

the plaintiff.

¶ 80 A. Standards of Review

¶ 81 We review a circuit court's ruling on a motion to strike an affidavit in conjunction with a

motion for summary judgment and its ruling on the motion for summary judgment de novo.

Collins v. St. Paul Mercury Insurance Co., 381 Ill. App. 3d 41, 46 (2008); Wolinsky v.

Kadison, 2013 IL App. (1st) 111186, ¶ 48; but see American Service Insurance Co. v. China

Ocean Shipping Co. (Americas), Inc., 402 Ill. App. 3d 513, 524 (2010) (applying the abuse of

discretion standard to review of the striking of an affidavit in a summary proceeding).

The determination of whether business records are admissible is within the sound discretion

of the circuit court, and its determination will not be reversed absent an abuse of discretion.

Bank of America, N.A. v. Land, 2013 IL App (5th) 120283, ¶ 13. An abuse of discretion

occurs only where the court's ruling is arbitrary, fanciful or unreasonable, or where no

reasonable person would take the view adopted by the trial court. TruServ Corp. v. Ernst &

Young LLP, 376 Ill. App. 3d 218, 227 (2007).

23 No. 1-12-1111

¶ 82 B. Discussion

¶ 83 In general, the liability of a guarantor is limited by that of the debtor and if no recovery

could be had against the debtor, the guarantor would be absolved of liability. Hensler v.

Busey Bank, 231 Ill. App. 3d 920, 927 (1992). "Where under the conditions of the contract

no liability has arisen on the part of the principal, there is no liability on the guarantor."

Hensler, 231 Ill. App. 3d at 927.

¶ 84 The Estate contends that the affidavits of Joseph Patek, a Chase Bank vice-president, and

Brenda Pawlak, an analyst with Chase Bank, were inadmissible and should have been

stricken. In the absence of the affidavits, it submits there was no foundation for the

admission of the documents evidencing East-West's indebtedness to Chase Bank, and the

motion for summary judgment should have been denied.

¶ 85 In support of its motion for summary judgment, Chase Bank submitted a number of

documents to establish the amount East-West was indebted to the plaintiff, including: the

2003 line of credit note, the guaranty, the loan history and the payoff-amount. In order to

provide a foundation for the admission of these documents, Chase Bank submitted the

affidavits of Mr. Patek and Ms. Pawlak. Both Mr. Patak and Ms. Pawlak averred that they

had personal knowledge of the facts contained in their affidavits and were competent to

testify to those facts.

¶ 86 In his affidavit, Mr. Patak averred as follows. Since 2004, he had been a vice-president

of Chase Bank; since 2008, he had been primarily responsible for the collection of the East-

West's indebtedness to Chase Bank. In connection with his responsibilities for the collection

of East-West's indebtedness, he reviewed the loan and credit files of East-West's

indebtedness maintained by Chase Bank. To the best of his knowledge, Chase Bank was the

24 No. 1-12-1111

holder of the note, the credit extension agreements, and the guaranty. Mr. Patek further

averred that he had possession of the original note and the guaranty and that pursuant to the

2007 note modification agreement, the maturity date of indebtedness was extended to and

included February 28, 2008. As of that date, neither East-West nor Mr. Wondrasek had

satisfied the indebtedness.

¶ 87 In her affidavit, Ms. Pawlak averred as follows. From 2004 to the present, she was

employed by Chase Bank. From 2004 to 2007, she was a project II manager and was

responsible for coordinating process changes affecting the servicing of commercial loans,

and from 2007 to 2009, she was employed as a business and reporting analyst, responsible

for generating summary and exception reports for the commercial loan services staff. From

2009 to the present, she was employed as a quality assurance analyst, serving as a liaison for

the commercial loan services department for internal audit reviews and performing sample

testing on processes and controls used in that department.

¶ 88 In the capacity of her employment by the plaintiff, Ms. Pawlak had access to and was

generally familiar with Chase Bank's commercial bank business records maintained in the

regular course of business, including the business records relating to East-West and its

indebtedness to the plaintiff. Her affidavit was based on her review of Chase Bank's records

relating to the loan to East-West including, but not limited to, the payoff calculation

document, and her own personal knowledge of how Chase Bank's records were maintained.

¶ 89 Ms. Pawlak stated that the loan records and the payoff calculation document were

maintained by Chase Bank in the course of its regularly conducted business activities. Chase

Bank maintained its loan records by logging in entries at or near the time of a recordable

25 No. 1-12-1111

event by a person with knowledge or from information transmitted from a person with

knowledge of the event.

¶ 90 Through her employment with Chase Bank, Ms. Pawlak was familiar with the computer

equipment Chase Bank used to maintain balance information, record payments and to

compute interest and cost charges. From 2003 to November 2006, Chase Bank used the

"Automated Financial Software," and from December 1, 2006 to the present, Chase Bank

used the "Advanced Commercial Banking System" (ACBS) software to perform those

functions. Ms. Pawlak explained the process of imputing the terms of Chase Bank's

commercial loans into the computer and how variable rate interest was adjusted in the

computer. Payment information was imputed to the computer by Chase Bank employees on

the day the payment arrived or, at the latest, the next business day. It has been Chase Bank's

business practice to periodically review and audit entries into the computer to eliminate

potential errors and to correct inadvertent erroneous entries.

¶ 91 The payoff calculation document was generated on June 21, 2011, by the ACBS software

and utilized by Chase Bank employees in the regular course of business. According to the

document, the loan balance was $1,562,319.71 and the unpaid interest through June 21,

2011, was $321,870.40.

¶ 92 The basic rules of evidence require that a proper foundation be laid for the introduction of

a document into evidence. Piser v. State Farm Mutual Automobile Insurance Co., 405 Ill.

App. 3d 341, 348 (2010). There must be evidence demonstrating that the document is what

the party offering it claims it to be. Piser, 405 Ill. App. 3d at 348-49. Generally, the party

offering the document establishes its identity through the testimony of a witness who has

26 No. 1-12-1111

sufficient personal knowledge to satisfy the trial court that the document is what it claims to

be. Piser, 405 Ill. App. 3d at 349.

¶ 93 An affidavit may also serve to authenticate a document. Piser, 405 Ill. App. 3d at 349;

see Robidoux v. Oliphant, 201 Ill. 2d 324, 335-36 (2002) (an affidavit submitted in a

summary judgment proceeding serves as a substitute for testimony at trial). In order to insure

that the trial court bases its decision on valid evidentiary facts, there must be strict

compliance with Illinois Supreme Court Rule 191(a) (Ill. S. Ct. R. 191(a) (eff. July 1, 2002)).

Robidoux, 201 Ill. 2d at 336. Rule 191(a) provides in pertinent part as follows:

"Affidavits in support of and in opposition to a motion for summary judgment ***

shall be made on the personal knowledge of the affiants; shall set forth with

particularity the facts upon which the claim, counterclaim, or defense is based; shall

have attached thereto sworn or certified copies of all documents upon which the

affiant relies; shall not consist of conclusions but of facts admissible in evidence; and

shall affirmatively show that the affiant, if sworn as a witness, can testify competently

thereto." Ill. S. Ct. R. 191(a) (eff. Jan. 4, 2013).

¶ 94 The Estate points out that since Mr. Patek did not become personally involved with

Chase Bank's loan to East-West until 2008, he lacked the necessary personal knowledge of

the facts stated in his affidavit. Since Mr. Patak's affidavit was inadmissible, his affidavit

could not provide the foundation for the admission of the loan documents.

¶ 95 "In order to fulfill the foundational requirements of a business record, it is not necessary

that the author or creator of the record testify or be cross-examined about the contents of the

record." Troyan v. Reyes, 367 Ill. App. 3d 729, 733 (2006). The custodian or any other

person familiar with the business and its mode of operation may provide testimony for

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establishing the foundational requirements of a business record. Troyan, 367 Ill. App. 3d at

733. The fact that the author of the record does not testify affects only the weight, not the

admissibility of the record. Troyan, 367 Ill. App. 3d at 733 (citing Illinois Supreme Court

Rule 236 (eff. Aug. 1, 1992)). Moreover, " '[i]f, from the document as a whole, it appears

that the affidavit is based upon the personal knowledge of the affiant and there is a

reasonable inference that the affiant could competently testify to its contents at trial, Rule

191 is satisfied.' " Doria v. Village of Downers Grove, 397 Ill. App. 3d 752, 756 (2009)

(quoting Kugler v. Southmark Realty Partners III, 309 Ill. App. 3d 790, 795 (1999)).

¶ 96 In National Builders Bank of Chicago v. Simons, 307 Ill. App. 562 (1940), the reviewing

court upheld the denial of a motion to strike an affidavit for lack of personal knowledge. The

bank official's affidavit was predicated on facts well within his knowledge and that of the

bank and on the records of the transaction and the events following it, which were in the

bank's possession. Simons, 307 Ill. App. at 567. In Tague v. Autobarn Motors, Ltd., 394 Ill.

App. 3d 268 (2009), the trial court granted a motion to dismiss based on an expired warranty.

In affirming the dismissal, the reviewing court determined that the affidavit of the

defendant's employee in support of the motion complied with Rule 191(a). In the affidavit,

the employee averred that he was responsible for the review of all warranty claims, including

all factual histories related to the claim. He set forth his review of the warranty on the

plaintiff's vehicle and established that it was the same warranty upon which the dismissal was

based and had expired prior to the time the cause of action arose. See Tague, 394 Ill. App.

3d at 276.

¶ 97 Mr. Patek's averments were sufficient to establish his personal knowledge. His position

as vice-president of Chase Bank provided him with familiarity with Chase Bank's loan

28 No. 1-12-1111

operations. While he was not in charge of the efforts to collect the unpaid balance from East-

West until 2008, as part of his responsibilities, Mr. Patek reviewed all the documents relating

to the line of credit loan from Chase Bank to East-West, including those which predated his

taking over the collection of East-West's indebtedness to Chase Bank. We hold that Mr.

Patek's affidavit was sufficient to authenticate the loan documents and laid the necessary

foundation for their admission.

¶ 98 Next, the defendant argues that that the computer-generated payoff calculation document

failed to comply with Illinois Rules of Evidence 803(6) (Ill. R. Evid. 803(6) (eff. Ap. 26,

2012)) for admission into evidence. Rule 803 provides in pertinent part as follows:

"The following are not excluded by the hearsay rule, even though the declarant is

available as a witness:

(6) Records of Regularly Conducted Activity. A memorandum, report, record,

or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses,

made at or near the time by, or from information transmitted by, a person with

knowledge, if kept in the course of a regularly conducted business activity, and if it

was the regular practice of that business activity to make the memorandum, report,

record or data compilation, all as shown by the testimony of the custodian or other

qualified witness *** unless the source of information or the method or circumstances

of preparation indicate lack of trustworthiness , but not including in criminal cases

medical records." Ill. R. Evid. 803(6) (eff. Ap. 26, 2012).

¶ 99 We observe first that the adoption of the Illinois Rules of Evidence relating to the

admission of business records did not make any substantive changes to the requirements

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under Illinois Supreme Court Rule 236 (Ill. S. Ct. R. 236 (eff. Aug. 1, 1992)). See Village of

Arlington Heights v. Anderson, 2011 IL App (1st) 110748, ¶ 17 (reviewing court recognized

that while Rule 803(8), providing for the admission of public records, was new, the legal

principles behind it were not). Therefore, case law developed under Rule 236 continues to be

relevant to our review of this issue.

¶ 100 The payoff calculation document was generated by a computer. With a proper

foundation, a computer-generated business record is admissible under the business records

exception to the hearsay rule. People v. Lombardi, 305 Ill. App. 3d 33, 42 (1999). In order

for the record to be admitted into evidence, it must be shown that " '(1) the electronic

computing equipment is recognized as standard; (2) the input is entered in the regular course

of business reasonably close in time to the happening of the event recorded; and (3) the

foundation testimony establishes that the sources of the information, method and time of

preparation indicate its trustworthiness and justify its admission.' " Lombardi, 305 Ill. App.

3d at 42 (quoting People v. Bynum, 257 Ill. App. 3d 502, 512 (1994)). The ultimate issue is

whether the foundation sufficiently guarantees trustworthiness to justify introduction into

evidence. Lombardi, 305 Ill. App. 3d at 43.

¶ 101 The Estate contends that the payoff calculation document failed to comply with the

requirements of Rule 803(6). The Estate argues that the document was not made at or near

the time of the events it reflected. The Estate's argument is belied by the record. The payoff

calculation document was dated June 21, 2011, and set forth the amount necessary to satisfy

East-West's indebtedness to Chase Bank as of that date. In her affidavit, Ms. Pawlak averred

that the payoff document was created on June 21, 2011.

30 No. 1-12-1111

¶ 102 The Estate points out that the payoff calculator document was not created by a person but

by a computer, but none of the people who imputed the information into the computer were

identified by Ms. Pawlak, or shown to have personal knowledge of the information they

imputed into the computer. Rule 803(6) did not require Ms. Pawlak to name each individual

who input information into the computer and to provide the source of that person's

information Ms. Pawlak averred that the loan records and the payoff calculation document

were maintained by Chase Bank in the course of its regularly conducted business activities.

Chase Bank maintained its loan records by logging in entries at or near the time of a

recordable event by a person with knowledge or from information transmitted from a person

with knowledge of the event. Ms. Pawlak's averments in this regard satisfied Rule 803(6).

See Lombardi, 305 Ill. App. 3d at 43 (even without evidence that the computer was standard,

testimony that the computer was used in the industry, that the information was immediately

entered by tellers or automatic teller machines and stored in the mainframe computer and that

the records were kept in the ordinary course of business and subject to auditing, was

sufficient to establish trustworthiness of the information).

¶ 103 Next, the Estate points out that the payoff calculator document did not refer to the other

loan documents and the payoff calculator document was not produced in discovery. The

payoff calculator document was not a summary of Chase Bank's line of credit loan to East-

West from 2003 to 2007. It provides only how the amount necessary to satisfy the

outstanding loan and interest balance as of June 21, 2011, was calculated. The fact that the

payoff calculator document did not refer to the other loan documents or was not produced in

discovery with the other loan documents did not render it inadmissible under Rule 803(6).

As Ms. Pawlak averred, it was produced in the ordinary course of Chase Bank's business

31 No. 1-12-1111

based on information recorded by employees with the knowledge or transmitted by an

employee with knowledge of the information.

¶ 104 The Estate points out that Ms. Pawlak did not state that she was the custodian of the

payoff calculator document and that the document only served to summarize evidence that

was never presented. Rule 803(6) requires the testimony of the custodian or other qualified

witness. Ms. Pawlak's averments in her affidavit established that she was a qualified witness

to establish the foundation for the admission of the payoff calculator document into evidence.

We reiterate that the payoff calculator document was not a summary of the line of credit

loan.

¶ 105 We conclude that the affidavits of Mr. Patek and Ms. Pawlak were admissible to establish

the necessary foundations for the admission of the loan documents and the payoff calculator

document. Therefore, the circuit court did not err in denying the Estate's motion to strike.

¶ 106 In challenging the grant of summary judgment, the Estate contended only that the circuit

court erred in dismissing its affirmative defenses and counterclaims and that the court relied

on inadmissible evidence. Apart from those claims, the Estate did not argue that a genuine

issue of material fact existed or that Chase Bank was not entitled to judgment as a matter of

law. In light of our determination that the Estate's affirmative defenses and counterclaims

were properly dismissed and that the circuit court did not rely on inadmissible evidence in

granting summary judgment, the grant of summary judgment to Chase Bank was proper.

¶ 107 V. Discovery Costs

¶ 108 The Estate contends that the circuit court erred by assessing it $3,025.80 toward Chase

Bank's costs in producing electronically stored documents in response to Mr. Wondrasek's

and/or the Estate's discovery requests. The Estate maintains that the court lacked authority to

32 No. 1-12-1111

assess costs against it and, in effect, imposed a sanction without any misconduct on the

Estate's part.

¶ 109 A. Standard of Review

¶ 110 Trial courts' rulings on discovery matters are generally reviewed for an abuse of

discretion. Payne v. Hill, 2013 IL App (1st) 113519, ¶ 13. A reviewing court will uphold a

trial court's decision on a protective order unless the trial court has abused its discretion.

Payne, 2013 IL App (1st) 113519 ¶ 12. "A court abuses its discretion only if it acts

arbitrarily, without the employment of conscientious judgment, exceeds the bounds of reason

and ignores recognized principles of law; or if no reasonable person would take the position

adopted by the court." Payne, 2013 IL App (1st) 113519, ¶ 12.

¶ 111 B. Discussion

¶ 112 The pertinent facts from the record reveal that the Estate filed motions to compel Chase

Bank to produce documents which Chase Bank maintained were electronically stored and

would be costly to produce. Chase Bank requested that discovery not go forward until the

parties were at issue on the pleadings. On December 10, 2009, the circuit court entered an

order granting the Estate's motion to compel, in part, and ordering the parties to confer as to

the scope of the production. The court also reserved the issue of allocating the cost of the

production.

¶ 113 Following the circuit court's dismissal of the Estate's affirmative defenses, Chase Bank

filed a motion pursuant to Illinois Supreme Court Rule 201(c) (Ill. S. Ct. R. 201(c)(1) (eff.

July 1, 2002)) for reimbursement of the costs incurred in producing the electronically-stored

documents. In support of the motion, Chase Bank alleged that the Estate opposed the request

for a stay and insisted on going forward with discovery. Chase Bank sought $18,771.39 in

33 No. 1-12-1111

attorney fees, costs and expenses related to the location, restoration, retrieval and production

of the documents. Following the dismissal of the Estate's counterclaims and amended

affirmative defenses, the circuit court ordered the Estate to pay $3,025.80 in costs to Chase

Bank.

¶ 114 The Estate maintains that parties bear the cost of complying with discovery requests, and

therefore, Judge Goldberg had no authority to assess the discovery costs against it. The

Estate overlooks the provisions of Rule 201(c). Rule 201(c) provides in pertinent part as

follows:

"(1) Protective Orders. The court may at any time on its own initiative, or on

motion of any party or witness, make a protective order as justice requires, denying,

limiting, conditioning, or regulating discovery to prevent unreasonable annoyance,

expense, embarrassment, disadvantage, or oppression." Ill. S. Ct. R. 201(c)(1) (eff.

Jan. 1, 2013).

¶ 115 Protective orders are among the tools the circuit courts may use in order to oversee and

prevent harassment during discovery. Hall v. Sprint Spectrum L.P., 368 Ill. App. 3d 820, 823

(2006). The nature of a protective order depends on the facts of the case; proper use of the

rule requires flexible application. Hall, 368 Ill. App. 3d at 823. The circuit court is in the

best position to weigh the competing needs and interests of the parties affected by the

protective order. Hall, 368 Ill. App. 3d at 823.

¶ 116 Judge Goldberg entered an order granting the defendant's motion to compel discovery in

part. In light of the plaintiff's concerns as to the expense and necessity of the discovery prior

to the parties being at issue on the pleadings, the judge further ordered the parties to confer

on the scope of the production and reserved the allocation of costs. After the Estate's

34 No. 1-12-1111

affirmative defenses were dismissed twice, Judge Goldberg ordered that the Estate pay

$3,025.80 of the $18,000 in discovery costs claimed by Chase Bank.

¶ 117 The record established that Judge Goldberg acted within his authority under Rule 201(c)

to balance the Estate's need for the discovery material against the expense of production

incurred by Chase Bank. Moreover, the Estate failed to address let alone provide any

argument that Rule 201(c) did not apply in this case.

¶ 118 We conclude that the circuit court did not abuse its discretion when it ordered the Estate

to pay a portion of Chase Bank's electronic discovery costs.

¶ 119 CONCLUSION

¶ 120 For all of the foregoing reasons, we affirm the judgment of the circuit court.

¶ 121 Affirmed.

35 No. 1-12-1111

¶ 122

¶ 123

¶ 124 The pertinent facts from the record reveal that the Estate filed motions to compel Chase

Bank to produce documents which Chase Bank maintained were electronically stored and

would be costly to produce. Chase Bank requested that discovery not go forward until the

parties were at issue on the pleadings. On December 10, 2009, the circuit court entered an

order granting the Estate's motion to compel, in part, and ordering the parties to confer as to

the scope of the production. The court also reserved the issue of allocating the cost of the

¶ 125 Following the circuit court's dismissal of the Estate's affirmative defenses, Chase Bank

filed a motion pursuant to Illinois Supreme Court Rule 201(c) (Ill. S. Ct. R. 201(c)(1) (eff.

July 1, 2002)) for reimbursement of the costs incurred in producing the electronically-stored

documents. In support of the motion, Chase Bank alleged that the Estate opposed the request

for a stay and insisted on going forward with discovery. Chase Bank sought $18,771.39 in

attorney fees, costs and expenses related to the location, restoration, retrieval and production

of the documents. Following the dismissal of the Estate's counterclaims and amended

affirmative defenses, the circuit court ordered the Estate to pay $3,025.80 in costs to Chase

¶ 126 The Estate maintains that parties bear the cost of complying with discovery requests, and

therefore, Judge Goldberg had no authority to assess the discovery costs against it. The

36 No. 1-12-1111

Estate overlooks the provisions of Rule 201(c). Rule 201(c) provides in pertinent part as

"(1) Protective Orders. The court may at any time on its own initiative, or on

motion of any party or witness, make a protective order as justice requires, denying,

limiting, conditioning, or regulating discovery to prevent unreasonable annoyance,

expense, embarrassment, disadvantage, or oppression." Ill. S. Ct. R. 201(c)(1) (eff.

¶ 127 Protective orders are among the tools the circuit courts may use in order to oversee and

prevent harassment during discovery. Hall v. Sprint Spectrum L.P., 368 Ill. App. 3d 820, 823

(2006). The nature of a protective order depends on the facts of the case; proper use of the

rule requires flexible application. Hall, 368 Ill. App. 3d at 823. The circuit court is in the

best position to weigh the competing needs and interests of the parties affected by the

¶ 128 Judge Goldberg entered an order granting the defendant's motion to compel discovery in

part. In light of the plaintiff's concerns as to the expense and necessity of the discovery prior

to the parties being at issue on the pleadings, the judge further ordered the parties to confer

on the scope of the production and reserved the allocation of costs. After the Estate's

affirmative defenses were dismissed twice, Judge Goldberg ordered that the Estate pay

$3,025.80 of the $18,000 in discovery costs claimed by Chase Bank.

¶ 129 The record established that Judge Goldberg acted within his authority under Rule 201(c)

to balance the Estate's need for the discovery material against the expense of production

incurred by Chase Bank. Moreover, the Estate failed to address let alone provide any

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¶ 130 We conclude that the circuit court did not abuse its discretion when it ordered the Estate

to pay a portion of Chase Bank's electronic discovery costs.

¶ 131 CONCLUSION

¶ 132 For all of the foregoing reasons, we affirm the judgment of the circuit court.

¶ 133 Affirmed.

¶ 134

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¶ 136

¶ 137

¶ 138 Abe

¶ 139 Abe

¶ 140 Abe

¶ 141 Abe

¶ 142

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¶ 144

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