                                         2018 IL App (1st) 172196
                                               No. 1-17-2196
                                                                      Fourth Division
                                                                      March 29, 2018
     ______________________________________________________________________________

                                         IN THE

                             APPELLATE COURT OF ILLINOIS

                                     FIRST DISTRICT

     ______________________________________________________________________________

                                                    )
     GUTERMAN PARTNERS ENERGY, LLC,                 )   Appeal from the Circuit Court
                                                    )   of Cook County.
           Plaintiff-Appellant,                     )
                                                    )   No. 15 L 11747
     v. 	                                           )

                                                    )   The Honorable

     BRIDGEVIEW BANK GROUP,                         )   Diane M. Shelley,

                                                    )   Judge Presiding.

           Defendant-Appellee.	                     )

                                                    )

     ______________________________________________________________________________

                JUSTICE GORDON delivered the judgment of the court, with opinion.
                Justices McBride and Ellis concurred in the judgment and opinion.

                                                 OPINION

¶1         The instant appeal arises from an uncompleted purchase between plaintiff Guterman

        Partners Energy, LLC, and defendant Bridgeview Bank Group, in which plaintiff sought to

        purchase certain loan documents from defendant. During the time in which the parties

        intended to close on the purchase, plaintiff paid $400,000 to defendant as a deposit. The

        closing never occurred, and defendant retained the deposit. Plaintiff filed suit for the return of

        the deposit, claiming that the closing never occurred because plaintiff had discovered that

        defendant did not actually “own” the loan documents it was attempting to sell. Both parties

        filed motions for summary judgment, and the	 trial court denied plaintiff’s motion for
     No. 1-17-2196


         summary judgment and granted defendant’s motion for summary judgment. Plaintiff appeals

         and, for the reasons that follow, we affirm.

¶2                                            BACKGROUND

¶3                                               I. Complaint

¶4           On November 17, 2015, plaintiff filed a complaint against defendant; the complaint was

         amended on June 14, 2016, and it is the amended complaint that is at issue on appeal. In the

         complaint, plaintiff sought to recover $400,000 in deposits that it had made in connection

         with its agreement to purchase certain loan documents from defendant. Defendant allegedly

         appropriated the funds from plaintiff’s account at defendant bank, claiming that plaintiff had

         forfeited the funds because plaintiff had failed to close on the purchase of the loan

         documents. The complaint alleged that this action was wrongful because (1) plaintiff had no

         obligation to close on the purchase and therefore did not forfeit its deposits because

         defendant did not own the loan documents that it was purporting to sell (a breach of contract

         count); and (2) defendant had no right or authority to reach into plaintiff’s account and

         remove the funds (a conversion count). 1

¶5           The agreement at issue was dated June 17, 2015, and was entitled the “Non-Recourse

         Loan Sale Agreement” (LSA). Under the LSA, which is described in further detail below,

         plaintiff was to purchase defendant’s position as secured lender with respect to two loan

         transactions.

¶6           The first transaction concerned a 2009 loan made by plaintiff to 401 Properties Limited

         Partnership (401 Partnership). The 401 Partnership loan was secured by an office building



             1
               The conversion cause of action is not at issue on appeal and, accordingly, we do not delve into
     detail on this issue.
                                                          2

       No. 1-17-2196


          located at 401 South LaSalle Street in Chicago, and defendant held a mortgage on this

          property as security for the loan.

¶7           The second transaction was a 2010 loan made by defendant to 401 LaSalle Lenders LLC

          (LaSalle Lenders), which was done in order to facilitate LaSalle Lenders’ purchase of

          defendant’s interest in the 401 Partnership loan. According to the complaint, “[p]ursuant to

          the LaSalle Lenders Loan, [defendant] assigned to LaSalle Lenders all of its right, title, and

          interest in the 401 Partnership Loan, including the underlying promissory notes.”

¶8           According to the complaint, in 2013, defendant “took the position” that LaSalle Lenders

          was in default on the LaSalle Lenders loan and, “[i]n connection with the resolution of that

          purported default, [defendant] contends that LaSalle Lenders re-assigned its interest in the

          401 Partnership Loan back to [defendant].”

¶9           The complaint alleges that, pursuant to the LSA, plaintiff sought to purchase from

          defendant both the 401 Partnership loan and the LaSalle Lenders loan for a total purchase

          price of $10.1 million, for which plaintiff “would acquire loans with outstanding balances

          exceeding $15 million (for the 401 Partnership Loan) and $9 million (for the LaSalle Lenders

          Loan).” Additionally, “[plaintiff] would also acquire security interests in the underlying

          collateral—including a senior mortgage on the commercial office building at 401 South

          LaSalle Street.”

¶ 10         The complaint further alleges:

                       “12. In light of the foregoing, [plaintiff] bargained for [defendant’s]

                 representation and warranty that it actually owned and had the authority to sell the

                 documents that it was purporting to sell to [plaintiff] including, significantly, the

                 promissory notes that evidenced the 401 Partnership Loan.


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                        13. Accordingly, as a condition precedent to [plaintiff’s] obligation to close the

                  transaction and purchase these positions, the LSA required [defendant] to make

                  several representations and warranties. Key among them, [defendant] was required to

                  represent and warrant that it owned the documents comprising both loans, and

                  accordingly, had the power and authority to sell both loan positions to [plaintiff].

                        14. *** [Defendant] was unable, and remains unable, to honor this representation

                  and warranty.” (Emphasis in original.)

¶ 11          According to the complaint, upon LaSalle Lenders’ default under the LaSalle Lenders

           loan in 2013, defendant “did not take the steps required to enforce any alleged security

           interest [defendant] had in the collateral for that loan,” namely, the 401 Partnership loan

           promissory notes “that [defendant] had sold to LaSalle Lenders in 2010 and no longer

           owned.” Due to defendant’s failure, “multiple parties involved in bankruptcy proceedings

           related to 401 Partnership (initiated in December 2014) have since challenged whether

           [defendant] owns the loan documents that [defendant] agreed to sell to [plaintiff] in 2015

           pursuant to the LSA.” The complaint alleges that even LaSalle Lenders claimed in the

           bankruptcy proceeding that it never assigned the promissory notes back to defendant.

¶ 12	         The complaint alleges that plaintiff “raised these issues” with defendant prior to the

           LSA’s closing date and “suggested steps that might be taken to put [defendant] in a position

           to represent and warrant its ownership of all the loan documents.” However, defendant did

           not take any of these steps “and by the time of that scheduled closing date, it was clear that

           [defendant] could not represent and warrant that it owned the notes and had the authority to

           sell them to [plaintiff].” The complaint also alleges that in the months leading up to the

           closing date, defendant failed to provide plaintiff a complete and accurate set of documents


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       No. 1-17-2196


          underlying the two loans during the LSA’s “due diligence” period. 2 Consequently, “[a]s a

          result of this course of conduct, defendant was unable to fulfill the conditions precedent to

          [plaintiff’s] obligation to close pursuant to the LSA.”

¶ 13          According to the complaint, despite defendant’s failure to honor its obligations,

          defendant unilaterally appropriated the $400,000 that plaintiff had deposited in plaintiff’s

          savings account at defendant bank.

¶ 14                                                II. LSA

¶ 15          Attached to the complaint was a copy of the LSA, which was dated June 17, 2015. Since

          the precise language of the LSA is at issue on appeal, we quote from the relevant provisions

          extensively. The LSA’s recitals provided, in relevant part:

                       “WHEREAS, Purchaser has expressed to Seller its intent to purchase certain loan

                  documents possessed by Seller and represented by certain mortgages, loan documents

                  and other documents described more fully in Exhibit A to this Agreement (the ‘Loan

                  Documents’),

                       WHEREAS, Seller desires to sell, and Purchaser desires to purchase, all of

                  Seller’s right, title and interest in, and to the Loan Documents on the terms and

                  conditions as set forth below[.]”

¶ 16          Article II was entitled “Purchase and Sale of the Loan Documents.” Section 2.1 provided:

                       “Section 2.1 Purchase and Sale; Release of Servicing Rights. Subject to the terms

                  and provisions set forth in this Agreement, on the Closing Date,[3] Purchaser shall

                  purchase all of Seller’s right, title and interest in the Loan Documents from Seller and


              2
               This allegation is not at issue on appeal.
              3
               The LSA provided that the closing date was July 31, 2015, “or such other date and time as may
       be mutually acceptable to both Seller and Purchaser.”
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       No. 1-17-2196


                 Seller shall sell, transfer, assign and convey such Loan Documents to Purchaser. The

                 Loan Documents shall be sold to Purchaser with all servicing rights being assigned to

                 Purchaser.”

¶ 17         Section 2.2 concerned one of the deposits at issue on appeal:

                       “2.2 Deposit against Purchase Price. Purchaser shall contemporaneously with the

                 execution of this Agreement deposit $100,000.00 (‘Refundable Deposit’) with Seller.

                 Purchaser may terminate this Agreement for any reason or no reason whatsoever in

                 Purchaser’s sole discretion, by delivering written notice of such termination to Seller

                 before the expiration of the Due Diligence Period (as defined below). In the event that

                 the Purchaser terminates this Agreement prior to the expiration period of the Due

                 Diligence Period, Seller shall return the Refundable Deposit within three (3) business

                 days of written notification. Should Purchaser elect to proceed to closing or otherwise

                 fail to deliver written notice to Seller of its intent to terminate this Agreement, Seller

                 may retain the Refundable Deposit as liquidated damages as its sole remedy. The

                 Refundable Deposit shall become non-refundable after the expiration of the Due

                 Diligence Period (as defined below). If Purchaser requests an extension of the Due

                 Diligence Period, Seller may grant it at its sole discretion. Upon closing, the

                 Refundable Deposit shall be credited to the Purchase Price.”

          The “Purchase Price” was set at $10.1 million. The “Due Diligence Period” terminated on

          June 30, 2015; under section 6.1(a) of the LSA, during this period, “Purchaser is entitled to

          inspect and review Seller’s information in its possession and control as it relates to: (i) legal

          documents, e.g., notes, amendments, deeds, mortgages and title; (ii) loan payment histories;

          and (iii) payoff schedules.”


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        No. 1-17-2196


¶ 18          Article III of the LSA was entitled “Conditions to Execution and Closing.” Section 3.2

           concerned conditions precedent to plaintiff’s obligations as the purchaser and provided:

                        “Section 3.2: Conditions Precedent to Obligations of Purchaser. The obligation of

                  Purchaser to consummate the transactions contemplated by this Agreement is subject

                  to fulfillment of each of the following conditions (any or all of which may be waived

                  by Purchaser in writing in whole or in part to the extent permitted by applicable

                  Law):

                           (a) All representations and warranties of Seller set forth in this Agreement

                        shall be true and correct on the Closing Date, except to the extent that such

                        representations and warranties relate to an earlier date or specifically reference

                        another date (in which case such representations and warranties shall be true on

                        and as of such date);

                           (b) Seller shall have performed and complied in all material respects with all

                        obligations and agreements required in this Agreement to be performed or

                        complied with by it prior to the Closing Date;

                           (c) There shall not be in effect on the Closing Date any order or decision by a

                        Governmental Authority of competent jurisdiction restraining, enjoining, or

                        otherwise prohibiting the consummation of the transactions contemplated

                        hereby.”

¶ 19	         Article IV concerned the closing and provided that defendant “agrees to execute, deliver

           and/or provide to Purchaser the following at the Closing:” (1) “The original Mortgage Notes

           endorsed, ‘Pay to the order of Purchaser or its nominee[’] and signed in the name of Seller by

           an authorized signatory, in the form of Exhibit E attached hereto”; (2) “The original


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       No. 1-17-2196


          Mortgages with all intervening original assignments thereof, with evidence of recording

          thereon”; (3) “Original Assignment of Mortgage for each Mortgage and each Assignment of

          Rents assigning each Mortgage and each Assignment of Rents to Purchaser executed by

          Seller and in form mutually acceptable to Purchaser and Seller”; (4) “An Assignment and

          Assumption of Loan Documents, assigning the Loan Documents from Seller to Purchaser

          executed by Seller and in form mutually acceptable to Purchaser and Seller”; (5) “An original

          of each other Loan Documents”; (6) “To the extent they exist and are in the possession

          and/or control of Seller, Seller shall Assign each Loan Policy on each Mortgage to

          Purchaser”; and (7) “To the extent permitted by law, and under the direction of the 401

          Properties, an Assignment of all Escrow Accounts to Purchaser.”

¶ 20         Article V was entitled “Representations and Warranties of Seller.” Section 5.1 provided:

                       “Section 5.1 Representations and Warranties by Seller. Each of the following

                 representations and warranties by Seller is true and correct as of the date hereof and

                 shall be true and correct on the Closing Date:

                          (a) Authority; Binding on Seller; Enforceability. Seller is an Illinois banking

                       company duly formed and validly existing and in good standing under the laws of

                       the State of Illinois. Seller has taken all necessary action to authorize its

                       execution, delivery and performance of this Agreement and has the power and

                       authority to execute, deliver and perform this Agreement and all related

                       documents and all the transactions contemplated hereby, including, but not

                       limited to, the authority to sell the Loan Documents and, assuming due

                       authorization, execution and delivery by each other party hereto, this Agreement




                                                       8

       No. 1-17-2196


                       and all the obligations of Seller hereunder are the legal, valid and binding

                       obligations of Seller enforceable in accordance with the terms of this Agreement.”

          Section 5.2 provided, in bold, all-caps letters:

                       “Section 5.2 Loans Sold ‘As Is.’ Except as otherwise stated in this Agreement or

                 the other Closing Documents delivered by Seller to Purchaser at Closing the Loan

                 Documents are sold ‘as is’ and ‘with all faults,’ without any representation, warranty

                 or recourse whatsoever as to either collectability, condition, fitness for any particular

                 purpose, merchantability or any other warranty, express or implied. Seller specifically

                 disclaims any warranty, guaranty or representation, oral or written, past or present,

                 express or implied, concerning the Loan Documents except as provided above, the

                 stratification or packaging of the Loan Documents, the Collateral Property or the

                 Loan Files.”

¶ 21         Article VI was entitled “Conditions Precedent to Closing,” and section 6.1 specifically

          concerned conditions for the benefit of plaintiff as the purchaser:

                       “The respective obligations of Purchaser and Seller to complete the purchase and

                 sale of the Loan Documents pursuant to this Agreement is subject to the fulfillment

                 on or prior to Closing Date of each of the following additional conditions to be

                 fulfilled by the other, unless the same is specifically waived in writing by the party

                 for whose benefit the same is to be fulfilled:

                       Section 6.1 Conditions for the Benefit of Purchaser.

                          (a) Due Diligence. Purchaser is entitled to inspect and review Seller’s

                       information in its possession and control as it relates to: (i) legal documents, e.g.,

                       notes, amendments, deeds, mortgages and title; (ii) loan payment histories; and


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        No. 1-17-2196


                        (iii) payoff schedules. Purchaser’s Due Diligence Period shall terminate on June

                        30, 2015 (‘Due Diligence Period’).

                           (b) Performance of Covenants. Seller shall have performed, if any, all of its

                        covenants and agreements contained herein which are required to be performed

                        by it on or prior to the Closing Date.

                           (c) Representations and Warranties. All representations and warranties of

                        Seller, if any, contained in this Agreement shall be true in all material respects at

                        and as if made on the Closing Date.”

¶ 22	         Finally, article VII was entitled “Default” and provided, in relevant part:

                        “Section 7.1 Purchaser’s Default. In the event Purchaser shall default in its

                 obligations to purchase the Loan Documents, Seller shall have the option to waive the

                 default and pursue the following: *** (iv) declare Purchaser in default and retain the

                 Refundable Deposit and terminate this agreement by delivery of written notice of

                 termination.

                        Section 7.2 Seller’s Default. In the event Seller shall default in its obligations to

                 sell the Loan Documents, materially breach any covenant hereunder or otherwise fail

                 to perform any material obligation under this Agreement, Purchaser shall have the

                 option to (i) grant an extension of time for Seller to perform its obligations hereunder

                 (if after said extension the default has not been cured, then Purchaser may elect any of

                 the remaining remedies); provided, however, the per diem interest shall not be

                 applicable as provided in 6.1 above, (ii) expressly waive any default of which

                 Purchaser has actual knowledge and proceed to closing; provided, however, the per

                 diem interest shall not be applicable as provided in 6.1 above; further provided, any


                                                         10 

       No. 1-17-2196


                 such waiver does not constitute a waiver of any of Purchaser’s other rights or

                 remedies under this agreement; or (iii) terminate this agreement by delivery of written

                 notice of termination to Seller.”

¶ 23         Also attached to the complaint was a “Supplemental Agreement” to the LSA, which was

          executed on July 29, 2015, and extended the closing date to “August 14, 2015, or such other

          date and time as may be mutually acceptable to both Seller and Purchaser.” The

          supplemental agreement also added a section 2.2(a) to the LSA, which provided:

                       “Section 2.2(a) Second Deposit against Purchase Price. Contemporaneously with

                 the execution of this Supplemental Agreement, the Purchaser shall deliver to Seller an

                 additional non-refundable cash deposit in the amount of $300,000 (‘Non-Refundable

                 Cash Deposit’). The Non-Refundable Cash Deposit shall be sent via wire transfer

                 from Purchaser to Seller in accordance with the wiring instructions set forth in

                 paragraph 2.4 of LSA as defined above. Purchaser understands that in consideration,

                 in part, for Seller negotiating, drafting and agreeing to extend the Closing Date that

                 Purchaser’s $300,000 Non-Refundable Cash Deposit will be forfeited to the Seller, in

                 the event that as a result of Purchaser’s Default, the sale does not close on the Closing

                 Date (as defined above) in accordance with Section 4 of the LSA. Both the

                 Refundable Deposit and the Non-Refundable Cash Deposit shall serve as a credit

                 against the Purchase Price at Closing.”

          The supplemental agreement also provided:

                       “Finally, to clarify, it is agreed that Seller shall assign to Purchaser, Seller’s

                 interest in the Bankruptcy matter: In re: 401 Properties Limited Partnership, Case

                 No. 14-44983.”


                                                       11 

       No. 1-17-2196


¶ 24                                 III. Other Exhibits to Complaint

¶ 25         Also attached to the complaint were adversary complaints filed by creditors in connection

          with a chapter 11 bankruptcy case filed by 401 Partnership, in which the creditors objected to

          defendant’s claim that it was the owner and holder of the note and mortgage for the 401

          Partnership loan and claimed that defendant and LaSalle Lenders had “asserted contradictory

          positions regarding the current ownership” of the note.

¶ 26                              IV. Answer and Affirmative Defenses

¶ 27         On July 8, 2016, defendant filed its answer and affirmative defenses, in which it alleged

          that, on March 10, 2009, defendant made the 401 Partnership loan, which was secured by a

          mortgage and evidenced by two promissory notes, made payable to the order of defendant.

          The 401 Partnership loan transaction closed on March 25, 2009, and defendant “continued to

          hold physical possession of the 401 Partnership Promissory Notes until October 30, 2015.”

          Defendant alleged that in September 2010, 401 Partnership defaulted on the loan by failing to

          perform its payment obligations, and defendant sold the 401 Partnership loan to LaSalle

          Lenders; defendant made the LaSalle Lenders loan to provide the financing for LaSalle

          Lenders to purchase the 401 Partnership loan. The LaSalle Lenders loan was evidenced by

          two promissory notes and a collateral assignment of mortgage dated September 16, 2010.

          Defendant alleged that “[s]ince [defendant] financed the LaSalle Lenders Loan, [defendant]

          continued to hold physical possession of the original 401 Partnership Promissory Notes as

          collateral for the LaSalle Lenders Loan. [Defendant] never transferred physical possession of

          the original Promissory Notes to LaSalle Lenders. [Defendant] held physical possession of

          the 401 Partnership Promissory Notes until October 30, 2015.”




                                                     12 

       No. 1-17-2196


¶ 28         Defendant alleged that LaSalle Lenders defaulted on its payment obligations under the

          LaSalle Lenders loan, and, following the default, executed an “Agreement and Assignment

          of Mortgage” dated November 1, 2013, “pursuant to which LaSalle Lenders assigned to

          [defendant] the mortgage securing the loans to 401 [Partnership].” According to defendant,

          “[a]s a consequence of LaSalle Lender’s [sic] default, [defendant] became entitled to endorse

          the Promissory Notes in LaSalle Lender’s [sic] name in furtherance of its collateral interest in

          such notes.”

¶ 29         With respect to the LSA and its supplemental agreement, defendant alleged that from the

          date of the supplemental agreement until the August 14, 2015, closing date, defendant

          advised plaintiff that it was prepared to close. On August 8, 2015, defendant’s counsel sent

          an e-mail to plaintiff’s counsel “attaching drafts of the assignments, stating that [defendant]

          was prepared to execute the Allonge required by the LSA, and confirming the August 14,

          2015 Closing Date.” Defendant’s counsel called plaintiff’s counsel on August 10 and 11 to

          schedule a time for the closing, but plaintiff did not agree to a time for closing on August 14,

          did not appear for a closing on that date, and no closing occurred on that date. At defendant’s

          direction, defendant’s counsel prepared and sent a letter to plaintiff’s counsel proposing to

          extend the closing to August 24, 2015, on certain terms, but plaintiff did not sign the

          extension letter. Instead, plaintiff’s principal, Igor Gabal, sent an e-mail to Jane Shifrin, one

          of defendant’s officers, asking that defendant “hangout” with plaintiff “for a little more time

          so we can get this done.” On August 21, 2015, Gabal sent Shifrin an e-mail thanking her for

          defendant’s “continued support and cooperation while I am doing my best to consummate

          this transaction.” Plaintiff did not agree to schedule a closing, and did not appear for any

          closing on August 24, 2015. On August 24, 2015, defendant’s counsel prepared and sent a


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       No. 1-17-2196


          letter to plaintiff declaring a default under the LSA. On August 28, 2015, a different attorney

          for plaintiff sent a letter to defendant “claiming for the first time that the closing did not

          occur because [defendant] was not able to transfer ownership.”

¶ 30         Defendant alleged that on October 30, 2015, it sold its right, title, and interest in the loan

          documents that were the subject of the LSA to a different party. “[Defendant] delivered the

          original 401 Partnership Promissory Notes and the LaSalle Lenders Promissory Notes to [the

          purchaser], along with the other Loan Documents. Shortly thereafter, [defendant] assigned

          the Proof of Claim that it had filed in the 401 Partnership bankruptcy case to [the

          purchaser].” On January 19, 2016, the bankruptcy court entered an order dismissing one of

          the adversary complaint as to defendant with prejudice and, on February 19, 2016, the other

          adversary complaint was amended to substitute the purchaser as a party instead of defendant

          and defendant “is no longer active in the adversary proceeding.”

¶ 31         Defendant raised three affirmative defenses. First, it alleged that plaintiff failed to give

          notice of termination during the due diligence period, forfeiting the $100,000 deposit.

          Second, defendant alleged that the sale of the loan documents was governed by article 3 of

          the Uniform Commercial Code (UCC) (810 ILCS 5/3-101 et seq. (West 2014)), which did

          not require a determination as to the “owner” of the note. Instead, the relevant question was

          whether defendant was “entitled to enforce the note,” which defendant alleged it was,

          alleging that it “was at all times ready, willing and able to deliver possession of the 401

          Partnership Promissory Notes and the LaSalle Lenders Promissory Notes” to plaintiff. Third,

          defendant alleged that plaintiff breached the LSA by failing to close on the closing date or at

          any time thereafter, forfeiting the $300,000 nonrefundable cash deposit.




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       No. 1-17-2196


¶ 32         Attached to the answer and affirmative defenses were exhibits supporting defendant’s

          allegations, including (1) copies of the notes in connection with the 401 Partnership loan and

          the LaSalle Lenders loan; (2) other loan documents, including the collateral assignment of

          mortgage executed by LaSalle Lenders at the time of the LaSalle Lenders loan and the

          agreement and assignment of mortgage executed by LaSalle Lenders after its default; and (3)

          correspondence between plaintiff’s and defendant’s representatives, culminating in an

          August 24, 2015, letter from defendant declaring plaintiff in default and electing to retain the

          $100,000 refundable deposit and the $300,000 nonrefundable cash deposit and an August 28,

          2015, response from plaintiff claiming that “Purchaser did not default on the LSA when it

          declined to close on the purchase of the Loan Documents that are the subject of the LSA.

          Purchaser’s obligation to close was contingent upon [defendant’s] satisfaction of certain

          conditions precedent—conditions which [defendant] did not and could not satisfy.”

¶ 33         As relevant to the instant appeal, the “Collateral Assignment of Mortgage and Other Loan

          Documents and Security Agreement” was dated September 16, 2010, and was between

          LaSalle Lenders as the assignor and defendant as the assignee. Section 5 of the collateral

          assignment of mortgage concerned remedies upon default and provided:

                       “5. Remedies. Whenever a Default shall exist hereunder, Assignee may, at

                 Assignee’s option and without further demand or notice, declare all or any part of the

                 Loan to be immediately due and payable and exercise any of the rights and remedies

                 granted hereunder, under the Notes or under any other of the Loan Documents. ***

                 Assignee may sell, lease or otherwise dispose of the Collateral, or exercise any of the

                 rights conferred upon Assignee by this Agreement or the Notes. *** Assignee is

                 hereby granted the authority, at Assignee’s discretion, to: in the name of Assignor or


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                 otherwise, in respect of any or all of the Collateral, demand, collect, receive and

                 receipt for, compound, compromise, settle and give acquittances, and take any action

                 which Assignee may deem necessary or desirable in order to realize on the Collateral,

                 including endorsement in the name of Assignor of any checks, drafts, notes or other

                 instruments or documents received in payment of or on account of the Collateral.”

¶ 34         The “Agreement and Assignment of Mortgage” was dated November 1, 2013, and was

          between LaSalle Lenders as the assignor and defendant as the assignee. The assignment of

          mortgage acknowledged that LaSalle Lenders was in default under the LaSalle Lenders loan

          and assigned to defendant all of LaSalle Lenders’ right, title, and interest in (1) the March 10,

          2009, 401 Partnership loan mortgage, assignment of leases and rents, and security agreement;

          and (2) a March 17, 2009, “Modification of Mortgage and Other Security Documents” in

          connection with the 401 Partnership loan. The assignment of mortgage made no reference to

          an assignment of the 401 Partnership loan promissory notes back to defendant.

¶ 35                           V. Plaintiff’s Motion for Summary Judgment

¶ 36         On February 15, 2017, plaintiff filed a motion for summary judgment on the breach of

          contract count of its amended complaint, as well as on defendant’s affirmative defenses.

          Plaintiff argued that it had no obligation to close on the purchase of the loan documents—and

          accordingly did not forfeit its $400,000 in deposits—because defendant “had failed to honor

          (and could not honor) its fundamental obligation to warranty that it had the power and

          authority to sell the loan documents that it was purporting to sell.”

¶ 37         Attached to plaintiff’s motion for summary judgment was the transcript of the discovery

          deposition of Jane Shifrin, defendant’s vice president of commercial lending at the time of




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          the LSA’s execution, who testified as to her understanding of the LSA’s terms and its

          negotiations.

¶ 38                         VI. Defendant’s Motion for Summary Judgment

¶ 39         Also on February 15, 2017, defendant filed a motion for summary judgment, arguing that

          it was entitled to summary judgment because defendant had the authority to sell the notes

          under the UCC and, regardless, plaintiff had agreed to purchase the documents “as is”

          without any warranties or representations of any kind.

¶ 40         Attached to the motion for summary judgment were excerpts from the discovery

          deposition of Igor Gabal, plaintiff’s principal, in which Gabal testified that plaintiff requested

          to view “every document” that defendant had as collateral on May 13, 2015; in the same e­

          mail chain in which plaintiff requested the documents, Gabal indicated that “we are working

          under [the] assumption that we will buy Bank position” and also sent “our offer to buy

          [defendant’s] interest in 401 S. Lasalle.” Gabal also testified that he sent an e-mail on May

          27, 2015, in response to Shifrin’s rejection of the offer as being too low, in which he stated

          that “[t]here is a lot of risk we will be taking on by stepping into [defendant’s] position.”

          Gabal testified that at the time he made the offer, he was aware that 401 Partnership was in

          bankruptcy proceedings and was aware that there were subordinated lenders involved.

¶ 41         Also attached to the motion for summary judgment were excerpts from the discovery

          deposition of John Malarkey, the attorney who represented plaintiff with respect to the LSA,

          who testified that he and Gabal met with Shifrin on July 22, 2015, where they inspected

          defendant’s original documents; he had not visited defendant to inspect the documents before

          that date, which was after the expiration of the due diligence period because he “was




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       No. 1-17-2196


          overwhelmed with the documents that they gave me during the due diligence period and

          needed more time.”

¶ 42          Additionally, attached to the motion for summary judgment were excerpts from the

          discovery deposition of Josh Reitman, Shifrin’s manager at the time of the LSA, who

          testified that there had been a demand letter sent to LaSalle Lenders after its default. The

          letter provided, in relevant part:

                  “Lender hereby provides Borrower with ten (10) days written notice of its intention to

                  retain all of the right, title and interest in the Collateral, including, but not limited to

                  the Properties Notes and exclude therefrom Borrower and any others claiming

                  through or under the Borrower.

                       Lender hereby further provides notice of its right to sell, lease or otherwise

                  dispose of the Collateral, or to take any further action that Lender may deem

                  necessary or desirable in order to realize on the Collateral.”

¶ 43          Finally, attached to the motion for summary judgment were excerpts from the discovery

          deposition of Adam Rome, the attorney who represented defendant with respect to the LSA,

          who testified that plaintiff had sought to extend the closing time because there were “having

          issues with financing.”

¶ 44          The motion for summary judgment also included, inter alia, a copy of a lis pendens that

          had been recorded on June 10, 2014, which provided notice that the 401 Partnership

          mortgage was being foreclosed and the names of the subordinate lenders.

¶ 45                                           VII. Trial Court Order

¶ 46          On April 10, 2017, the trial court entered an order denying plaintiff’s motion for

          summary judgment and granting defendant’s motion for summary judgment; the trial court

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          did not set forth the basis for its ruling and there is no transcript of the hearing on the parties’

          cross-motions for summary judgment. Defendant subsequently filed a petition for attorney

          fees, which was granted by the trial court on August 8, 2017, and a judgment for $91,067.22

          was entered in favor of defendant and against plaintiff; plaintiff does not appeal the attorney

          fees award. On September 5, 2017, plaintiff filed a notice of appeal, and this appeal follows.

¶ 47                                             ANALYSIS

¶ 48          On appeal, plaintiff argues that the trial court erred in granting summary judgment in

          defendant’s favor, claiming that it did not forfeit its deposits because defendant failed to

          perform its conditions precedent to closing under the LSA. A trial court is permitted to grant

          summary judgment only “if the pleadings, depositions, and admissions on file, together with

          the affidavits, if any, show that there is no genuine issue as to any material fact and that the

          moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2-1005(c) (West

          2014). The trial court must view these documents and exhibits in the light most favorable to

          the nonmoving party. Home Insurance Co. v. Cincinnati Insurance Co., 213 Ill. 2d 307, 315

          (2004). We review a trial court’s decision to grant a motion for summary judgment de novo.

          Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992). De novo

          consideration means we perform the same analysis that a trial judge would perform. Khan v.

          BDO Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011).

¶ 49          “Summary judgment is a drastic measure and should only be granted if the movant’s right

          to judgment is clear and free from doubt.” Outboard Marine Corp., 154 Ill. 2d at 102.

          However, “[m]ere speculation, conjecture, or guess is insufficient to withstand summary

          judgment.” Sorce v. Naperville Jeep Eagle, Inc., 309 Ill. App. 3d 313, 328 (1999). The party

          moving for summary judgment bears the initial burden of proof. Nedzvekas v. Fung, 374 Ill.


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           App. 3d 618, 624 (2007). The movant may meet his burden of proof either by affirmatively

           showing that some element of the case must be resolved in his favor or by establishing “ ‘that

           there is an absence of evidence to support the nonmoving party’s case.’ ” Nedzvekas, 374 Ill.

           App. 3d at 624 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). When parties

           file cross-motions for summary judgment, as was the case here, “they agree that only a

           question of law is involved and invite the court to decide the issues based on the

           record.” Pielet v. Pielet, 2012 IL 112064, ¶ 28 (citing Allen v. Meyer, 14 Ill. 2d 284

           (1958)); Ruby v. Ruby, 2012 IL App (1st) 103210, ¶ 13. However, the filing of cross-

           motions does not necessarily mean there is not an issue of material fact, nor does it obligate a

           court to render summary judgment. Pielet, 2012 IL 112064, ¶ 28. “ ‘The purpose of summary

           judgment is not to try an issue of fact but *** to determine whether a triable issue of fact

           exists.’ ” Schrager v. North Community Bank, 328 Ill. App. 3d 696, 708 (2002) (quoting Luu

           v. Kim, 323 Ill. App. 3d 946, 952 (2001)). We may affirm on any basis appearing in the

           record, whether or not the trial court relied on that basis or its reasoning was correct. Ray

           Dancer, Inc. v. DMC Corp., 230 Ill. App. 3d 40, 50 (1992).

¶ 50	         In the case at bar, the resolution of the parties’ dispute turns on the questions of (1) what

           defendant promised to do under the LSA and (2) whether it satisfied its obligation. Plaintiff

           claims that defendant promised to sell the 401 Partnership notes and was unable to satisfy

           that obligation because it did not “own” the notes. Defendant, on the other hand, claims that

           it was only required to show that it had the authority to sell the notes, which it did.

           Alternatively, defendant also claims that plaintiff promised to purchase the loan documents

           “as is,” meaning that defendant made no warranties as to the extent of its ownership interest.

           Our analysis must begin with a discussion of the terms of the LSA.


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        No. 1-17-2196


¶ 51          The principal objective in construing a contract is to determine and give effect to the

           intention of the parties at the time they entered into the contract. Fleet Business Credit, LLC

           v. Enterasys Networks, Inc., 352 Ill. App. 3d 456, 469 (2004). “ ‘[A]n agreement, when

           reduced to writing, must be presumed to speak the intention of the parties who signed it. It

           speaks for itself, and the intention with which it was executed must be determined from the

           language used. It is not to be changed by extrinsic evidence.’ ” Air Safety, Inc. v. Teachers

           Realty Corp., 185 Ill. 2d 457, 462 (1999) (quoting Western Illinois Oil Co. v. Thompson, 26

           Ill. 2d 287, 291 (1962)). A court interpreting a contract begins by examining the language of

           the contract alone, and “[i]f the language of the contract is facially unambiguous, then the

           contract is interpreted by the trial court as a matter of law without the use of parol evidence.”

           Air Safety, 185 Ill. 2d at 462 (citing Farm Credit Bank of St. Louis v. Whitlock, 144 Ill. 2d

           440, 447 (1991)). If an ambiguity is present, then the court may admit parol evidence to aid

           in resolving the ambiguity. Air Safety, 185 Ill. 2d at 462-63 (citing Whitlock, 144 Ill. 2d at

           447). “In interpreting a contract, it is presumed that all provisions were intended for a

           purpose, and conflicting provisions will be reconciled if possible so as to give effect to all of

           the contract’s provisions.” Shorr Paper Products, Inc. v. Aurora Elevator, Inc., 198 Ill. App.

           3d 9, 13 (1990). “A court will not interpret a contract in a manner that would nullify or

           render provisions meaningless, or in a way that is contrary to the plain and obvious meaning

           of the language used. [Citation.] Further, when parties agree to and insert language into a

           contract, it is presumed that it was done purposefully, so that the language employed is to be

           given effect. [Citation.]” Thompson v. Gordon, 241 Ill. 2d 428, 442 (2011).

¶ 52	         In the case at bar, the first question we must determine is what, exactly, defendant agreed

           to sell and plaintiff agreed to buy under the terms of the LSA. In its recitals, the LSA


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          provides that “Purchaser has expressed to Seller its intent to purchase certain loan documents

          possessed by Seller” and further provides that “Seller desires to sell, and Purchaser desires to

          purchase, all of Seller’s right, title and interest in, and to the Loan Documents on the terms

          and conditions as set forth below[.]” The agreement to purchase itself is contained in section

          2.1 and provides:

                       “Section 2.1 Purchase and Sale; Release of Servicing Rights. Subject to the terms

                 and provisions set forth in this Agreement, on the Closing Date, Purchaser shall

                 purchase all of Seller’s right, title and interest in the Loan Documents from Seller and

                 Seller shall sell, transfer, assign and convey such Loan Documents to Purchaser. The

                 Loan Documents shall be sold to Purchaser with all servicing rights being assigned to

                 Purchaser.”

¶ 53         Section 4.2 of the LSA sets forth the documents that defendant was required to “execute,

          deliver and/or provide to Purchaser” at the closing: (1) “The original Mortgage Notes

          endorsed, ‘Pay to the order of Purchaser or its nominee[’] and signed in the name of Seller by

          an authorized signatory, in the form of Exhibit E attached hereto”; (2) “The original

          Mortgages with all intervening original assignments thereof, with evidence of recording

          thereon”; (3) “Original Assignment of Mortgage for each Mortgage and each Assignment of

          Rents assigning each Mortgage and each Assignment of Rents to Purchaser executed by

          Seller and in form mutually acceptable to Purchaser and Seller”; (4) “An Assignment and

          Assumption of Loan Documents, assigning the Loan Documents from Seller to Purchaser

          executed by Seller and in form mutually acceptable to Purchaser and Seller”; (5) “An original

          of each other Loan Documents”; (6) “To the extent they exist and are in the possession

          and/or control of Seller, Seller shall Assign each Loan Policy on each Mortgage to


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       No. 1-17-2196


          Purchaser”; and (7) “To the extent permitted by law, and under the direction of the 401

          Properties, an Assignment of all Escrow Accounts to Purchaser.” Section 5.1 further required

          that defendant warrant that “Seller has taken all necessary action to authorize its execution,

          delivery and performance of this Agreement and has the power and authority to execute,

          deliver and perform this Agreement and all related documents and all the transactions

          contemplated hereby, including, but not limited to, the authority to sell the Loan Documents

          ***.”

¶ 54         Reading the express language of the LSA, it is apparent that the parties contracted for

          plaintiff to purchase “all of Seller’s right, title and interest in the Loan Documents from

          Seller,” and defendant was required to provide a number of documents at closing and to

          warrant that it had the authority to sell the loan documents, including the promissory notes at

          issue. We see nowhere in the language of the LSA where defendant warrants that it “owns”

          the notes; in fact, the LSA does not contain the terms “own,” “owner,” or “ownership”

          anywhere within its provisions. To the extent that plaintiff uses the term “ownership” to

          mean “holding absolute title to” the notes, there is also no language in the LSA suggesting

          that defendant was required to convey absolute title to the notes. Accordingly, the language

          of the LSA contemplated only the sale of “all of Seller’s right, title and interest in the Loan

          Documents,” whatever such an interest may be, so long as defendant had the “power and

          authority to execute, deliver and perform this Agreement and all related documents and all

          the transactions contemplated hereby.”

¶ 55         This conclusion is strengthened by article V of the LSA, which was entitled

          “Representations and Warranties of Seller.” As noted, section 5.1 provided:




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No. 1-17-2196


                “Section 5.1 Representations and Warranties by Seller. Each of the following

          representations and warranties by Seller is true and correct as of the date hereof and

          shall be true and correct on the Closing Date:

                   (a) Authority; Binding on Seller; Enforceability. Seller is an Illinois banking

                company duly formed and validly existing and in good standing under the laws of

                the State of Illinois. Seller has taken all necessary action to authorize its

                execution, delivery and performance of this Agreement and has the power and

                authority to execute, deliver and perform this Agreement and all related

                documents and all the transactions contemplated hereby, including, but not

                limited to, the authority to sell the Loan Documents and, assuming due

                authorization, execution and delivery by each other party hereto, this Agreement

                and all the obligations of Seller hereunder are the legal, valid and binding

                obligations of Seller enforceable in accordance with the terms of this Agreement.”

   Section 5.2 provided, in bold, all-caps letters:

                “Section 5.2 Loans Sold ‘As Is.’ Except as otherwise stated in this Agreement or

          the other Closing Documents delivered by Seller to Purchaser at Closing the Loan

          Documents are sold ‘as is’ and ‘with all faults,’ without any representation, warranty

          or recourse whatsoever as to either collectability, condition, fitness for any particular

          purpose, merchantability or any other warranty, express or implied. Seller specifically

          disclaims any warranty, guaranty or representation, oral or written, past or present,

          express or implied, concerning the Loan Documents except as provided above, the

          stratification or packaging of the Loan Documents, the Collateral Property or the

          Loan Files.”


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       No. 1-17-2196


¶ 56           Plaintiff appears to believe that section 5.2 supports its argument that defendant

           warranted that it “owned” the notes. However, article V, read in its entirety, undercuts

           plaintiff’s argument. The warranty in section 5.1(a) is the only warranty set forth in the LSA.

           Thus, pursuant to section 5.2, other than section 5.1(a)’s warranties, 4 “the Loan Documents

           are sold ‘as is’ and ‘with all faults,’ ” including a specific disclaimer of any representation or

           warranty as to “collectability, condition, fitness for any particular purpose, merchantability or

           any other warranty, express or implied.” Thus, it is clear from the language of the LSA that

           we may not read into the contract any representations or warranties that are not specifically

           listed, including a warranty that defendant holds absolute title to the notes.

¶ 57           We note that plaintiff repeatedly draws an analogy to the sale of an automobile, arguing

           that “[w]hether one can legally sell a car is irrelevant if one owns no car.” However, this

           analogy does not properly describe the relationship between the parties in the context of the

           case at bar and merely serves to muddy the waters. Moreover, even plaintiff’s automobile

           analogy can illustrate the flaws in plaintiff’s argument. First, multiple people may have

           ownership interests in a single automobile—for instance, spouses may jointly own a vehicle,

           as may a parent and child. In that case, one individual is certainly entitled to dispose of his or

           her partial interest without “owning” the entire vehicle. Alternatively, one of the owners of

           the partial interest may have the authority from the other owners to sell the vehicle.

           Additionally, an automobile owner may sell her vehicle without “owning” it—if she obtained

           an automobile loan, the lender is named on and in possession of the certificate of title to the

           vehicle until the lien is satisfied (see 625 ILCS 5/3-203(a); 3-205(a) (West 2016)), but this



               4
                Section 5.2 also includes an exception for warranties or representations made in “the other
       Closing Documents delivered by Seller to Purchaser at Closing.” However, there is no claim that any
       other documents contain warranties that are applicable to the arguments raised by the parties on appeal.
                                                           25 

       No. 1-17-2196


           does not prevent her from being able to sell her interest in the vehicle. Thus, even using

           plaintiff’s own analogy does not add support to its argument.

¶ 58           In the case at bar, defendant alleged that it was ready, willing, and able to sell the loan

           documents—including the promissory notes—to plaintiff and that it had the original

           documents ready to be turned over to plaintiff at the closing. This is all that was required

           under the LSA, and there is no showing that defendant was unable to perform its obligations

           at the closing. Consequently, we cannot find that defendant failed to perform any conditions

           precedent and must find that plaintiff had no excuse for its failure to close and therefore

           forfeited its deposits. 5

¶ 59                                            CONCLUSION

¶ 60           For the reasons set forth above, the trial court properly entered summary judgment in

           defendant’s favor because there was no excuse for plaintiff’s failure to close and, therefore,

           plaintiff forfeited its $400,000 in deposits under the LSA.

¶ 61           Affirmed.




               5
                 We note that defendant makes an alternative argument that even if had been required to “own”
       the notes, it satisfied that requirement. However, as we have found that “ownership” was not required,
       we have no need to address this alternate basis for affirming.
                                                         26 

