Old Kent Bank v. Stoller

627 N.E.2d 265, 254 Ill. App. 3d 1085, 194 Ill. Dec. 149
CourtAppellate Court of Illinois
DecidedSeptember 30, 1993
Docket1-92-2520
StatusPublished
Cited by16 cases

This text of 627 N.E.2d 265 (Old Kent Bank v. Stoller) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Old Kent Bank v. Stoller, 627 N.E.2d 265, 254 Ill. App. 3d 1085, 194 Ill. Dec. 149 (Ill. Ct. App. 1993).

Opinion

JUSTICE MURRAY

delivered the opinion of the court:

Defendant Russell Stoller (Stoller) appeals from two attachment orders entered by the circuit court on June 19, 1992, and June 23, 1992, which attached his beneficial interest in the Harris Trust and Savings Bank land trust No. 43429. He seeks to have the orders vacated and quashed as erroneously entered. Plaintiff Old Kent Bank (Old Kent), which originally instituted proceedings against Stoller based on a promissory note, urges this court’s affirmance of the attachment orders, but also cross-appeals the circuit court’s finding under Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)), that there was no just reason for delaying enforcement or appeal. Old Kent contends that the attachment orders are nonfinal and nonappealable despite the addition of Supreme Court Rule 304(a) language and that the appeal should be dismissed.

We believe the background in this case is pertinent and so we recount the rather lengthy details here.

On July 24, 1989, Old Kent filed a verified complaint alleging that Chestnut Industries, Inc., had defaulted on the payment of a promissory note it executed on December 7, 1987, in the principal amount of $120,000 and which was secured by Stoller under a personal guaranty of the indebtedness of Chestnut Industries, Inc., which was executed by Stoller on December 7, 1987. The complaint further alleged that Stoller had also defaulted on other notes and security agreements in the aggregate amount of $21,986.05, which he had signed in his individual capacity.

On September 12, 1989, a special process server traveled to the Illinois address Stoller had given Old Kent at the time he executed the guaranty and notes. The process server detailed, in an affidavit, how he served a man fitting Stoller’s description, who hid behind a wall after learning of the process server’s purpose.

Stoller failed to answer the complaint and on March 30, 1990, Old Kent filed a motion for default judgment. Stoller then filed a special and limited appearance through his first attorney, William J. Harte, Ltd., and a motion to quash service of summons in which it was contended that Stoller had never been served. The motion was supported by the affidavits of Stoller, Stoller’s son and Steven Perrigo. Stoller's affidavit alleged that he had not been present in the State of Illinois on September 12, 1989, and that he no longer considered himself a resident of Illinois. He averred that his residence since January 1989 was 4795 North 44th Place, Phoenix, Arizona.

While waiting for the motion to be heard, Old Kent attempted to re-serve Stoller at the Arizona address Stoller had given. However, when a special process server attempted to serve Stoller, it was discovered that no such address existed.

On June 20, 1990, a hearing was held on Stoller’s motion to quash. The trial court denied Stoller’s motion to quash service and Stoller was given 28 days in which to answer or otherwise plead. In addition, Stoller’s legal counsel admitted at this hearing that the Phoenix address that Stoller had given in his affidavit was incorrect. He claimed that the address had been inadvertently misstated and tendered a corrected address, 4702 North 40th Place, as Stoller’s place of residence in Phoenix, Arizona.

Once again Stoller did not answer the complaint. Instead, on August 7, 1990, Stoller filed a motion to substitute counsel and requested additional time in which to answer. On August 21, 1990, the court granted leave to William J. Harte, Ltd., to withdraw as counsel and Lori S. Klingman to file an appearance. Stoller was then given an additional 10 days in which to answer the complaint. Nevertheless, no action was taken within that time period.

On October 1, 1990, Old Kent obtained the affidavit of a clerk of the circuit court of Cook County, who indicated that the court file in this matter had been examined and that no answer had been filed by Stoller as of that date. Old Kent Bank corresponded with Stoller’s attorney, Klingman, and obtained a copy of a proposed answer to the complaint she had prepared which was verified by Stoller’s son as Stoller’s agent, and dated October 16, 1990. However, this answer was not filed with the court. Consequently, Old Kent filed a motion for default judgment on October 22, 1990, and the motion was granted on November 13,1990.

After obtaining the default judgment, Old Kent commenced post-judgment proceedings, filing citations to discover assets. Old Kent attempted to serve Stoller with citation but was unable to locate him. On December 7, 1990, the third attorney to represent Stoller, John Carr, filed an appearance with the court, along with a motion to vacate the default judgment entered against Stoller. On February 19, 1991, an amended motion to vacate the default judgment was filed and on February 25, 1991, Old Kent filed its objection to the motion and, in addition, filed the affidavit of a special process server who attempted to serve Stoller with a citation to discover assets. The process server stated that he traveled to the Phoenix, Arizona, address which had been supplied in open court by Stoller’s former attorney. A woman named Ellen Mayer was found at that address and she indicated that she had lived at the address since 1964 and did not know Russell Stoller.

On March 13, 1991, after hearing on the matter, the circuit court denied Stoller’s motion to vacate the default judgment. Thereafter, Old Kent moved to impress a lien on Stoller’s beneficial interest in a land trust held by Harris Trust and Savings Bank, one of Stoller’s assets discovered through service of citation. By order of the court dated April 12, 1991, Old Kent was allowed to file its motion to impress a lien on the Harris Bank land trust and attorney James B. Ford (Stoller’s fourth attorney) was granted leave to file his appearance as Stoller’s legal representative.

On April 19, 1991, Stoller, through his new attorney, filed an “Emergency Motion to Vacate and Reconsider.” In this motion it was asserted that the default judgment, which had been granted for failure to answer or otherwise plead, should be vacated because an answer had been filed, pro se, with the court on June 26, 1990, but, due to an error on the part of the Cook County clerk’s office, was not properly docketed. The motion was supported by the affidavit of Stoller’s son, Christopher, who claimed to have filed the answer in Judge Lassers’ courtroom on behalf of his father. Also attached to the motion was a copy of the answer, allegedly verified by Stoller, in which he denied being a resident of Cook County, Illinois.

On May 28, 1991, after Stoller failed to appear for his citation to discover assets, the court granted Old Kent’s motion to impose a lien on Stoller’s beneficial interest in the Harris Bank land trust. The court also issued a rule to show cause against Stoller, returnable July 3, 1991. On July 3, 1991, the rule to show cause was continued until December 10,1991.

In the meantime, Stoller and his son failed to appear for their scheduled depositions. Consequently, by order dated August 6, 1991, they were commanded to appear before Judge Cohen and produce certain documents by August 21, 1991. In response to this order, Stoller appeared for deposition on August 21, 1991, although he brought no documents.

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Cite This Page — Counsel Stack

Bluebook (online)
627 N.E.2d 265, 254 Ill. App. 3d 1085, 194 Ill. Dec. 149, Counsel Stack Legal Research, https://law.counselstack.com/opinion/old-kent-bank-v-stoller-illappct-1993.