                             ILLINOIS OFFICIAL REPORTS
                                          Appellate Court




        Gonzalez v. Second Federal Savings & Loan Ass’n, 2011 IL App (1st) 102297




Appellate Court              RAFAEL GONZALEZ, Plaintiff-Appellee, v. SECOND FEDERAL
Caption                      SAVINGS AND LOAN ASSOCIATION, Defendant-Appellant (Hector
                             Gonzalez, Individually, and as Executor of the Estate of Juana Gabriela
                             Martinez, Third-Party Defendant).



District & No.               First District, Sixth Division
                             Docket No. 1–10–2297


Filed                        June 10, 2011


Held                         In an action by decedent’s cousin alleging that he was the beneficiary
(Note: This syllabus         of four payable on death accounts decedent opened at defendant savings
constitutes no part of the   and loan association and that the association, without authorization,
opinion of the court but     paid the proceeds of two of the accounts to the executor of the estate of
has been prepared by the     decedent’s daughter, the trial court properly entered a judgment for
Reporter of Decisions for    plaintiff that included prejudgment interest, notwithstanding the
the convenience of the       association’s contention that plaintiff failed to present clear and
reader.)                     convincing evidence that decedent changed the beneficiary of the
                             accounts from her daughter to plaintiff by adding language to the
                             original certificates of deposit naming plaintiff as the beneficiary.


Decision Under               Appeal from the Circuit Court of Cook County, No. 05–L–1827; the
Review                       Hon. Henry R. Simmons, Jr., Judge, presiding.



Judgment                     Affirmed.
Counsel on                     Adrian Mendoza and Edward R. Sherman, both of Lillig & Thorsness,
Appeal                         Ltd., of Chicago, for appellant.

                               Gilbert W. Gordon, Peter J. Miller, and Richard R. Gordon, all of
                               Gordon Rappold & Miller LLC, of Chicago, for appellee.


Panel                          JUSTICE McBRIDE delivered the judgment of the court, with opinion.
                               Presiding Justice Garcia and Justice Cahill concurred in the judgment
                               and opinion.




                                                 OPINION

¶1          In February 2005, plaintiff filed a two-count complaint against defendant Second Federal
        Savings and Loan Association for conversion and breach of fiduciary duty. Plaintiff later
        amended his complaint to include an additional count of breach-of-contract third-party-
        beneficiary action. Plaintiff alleged that he was the beneficiary of four accounts opened at
        Second Federal and that Second Federal, without authorization, paid the proceeds of two of
        the accounts to the third-party defendant Hector Gonzalez,1 as the executor of the estate of
        Juana Gabriela Martinez. Following a July 2010 bench trial on the breach-of-contract third-
        party-beneficiary count, the trial court found in favor plaintiff and awarded him $111,045.
¶2          Second Federal appeals, arguing that (1) the trial court erred in finding in favor of
        plaintiff because the evidence was insufficient to establish that plaintiff was the rightful
        beneficiary of two accounts at Second Federal; and (2) the trial court erred in awarding
        prejudgment interest when plaintiff did not request that relief in his complaint.
¶3          Plaintiff’s first amended complaint alleged that he was the executor of the estate of Gaby
        Gonzalez (Gonzalez), his cousin. In October 1999, Gonzalez opened two accounts at the
        Archer Avenue branch of Second Federal, account number 008–07–9–001137–5 (375) and
        008–07–9–001135–9 (359) (collectively, 1999 accounts). In November 2000, Gonzalez
        opened two more accounts with Second Federal at the Pulaski branch, account number
        001–07–9001626–4 (264) and account number 001–07–9001627–2 (272) (collectively, 2000
        accounts). When the four accounts were opened, Gonzalez designated her daughter, Juana
        Gabriela Martinez, as the beneficiary.
¶4          The complaint further alleged that on March 1, 2001, Gonzalez changed the beneficiary
        of all four accounts to plaintiff. On August 22, 2001, Gonzalez died from terminal cancer.
        On September 29, 2001, plaintiff closed the 2000 accounts and the proceeds were paid to


               1
                   Hector Gonzalez is not a party to this appeal.

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       plaintiff. Martinez died of terminal cancer on September 30, 2001.
¶5         On November 15, 2001, plaintiff requested Second Federal to draft a check to pay for
       Gonzalez’s funeral costs from one of the 1999 accounts, specifically account number 375,
       which Second Federal issued. Later in 2001, plaintiff asked Second Federal to prepare a
       check to pay attorney fees associated with Gonzalez’s estate and Second Federal again issued
       a check from account number 375, one of the 1999 accounts.
¶6         In December 2003, plaintiff sought to close the 1999 accounts, but Second Federal
       informed him that the accounts had been closed and the proceeds were paid to Hector
       Gonzalez, Martinez’s boyfriend and no relation to plaintiff or Gonzalez.
¶7         Plaintiff’s complaint alleged three counts against Second Federal: count I for conversion,
       count II for breach of fiduciary duty, and count III for breach of contract third-party-
       beneficiary action. Plaintiff sought $80,473.47, the proceeds of the 1999 accounts. In October
       2009, the trial court dismissed the conversion count from plaintiff’s complaint in its ruling
       on the parties’ cross-motions for summary judgment. The court’s written decision also
       indicated that plaintiff withdrew count II (breach of fiduciary duty) during the hearing on the
       motion for summary judgment. As for count III (breach of contract third-party beneficiary),
       the trial court found that a question of material fact existed and denied both parties’ requests
       for summary judgment as to this count.
¶8         On July 29, 2010, a bench trial was conducted on plaintiff’s breach-of-contract third-
       party-beneficiary claim. A new trial judge presided over the bench trial. The following
       evidence was presented at the trial.
¶9         Plaintiff testified with the aid of an interpreter. He stated that he resided in San Luis
       Potosi, Mexico. He testified that he was related to Gaby Gonzalez. They were cousins
       through their fathers. Gonzalez was also from Mexico, but she moved to Chicago in the
       1970s. Plaintiff maintained contact with Gonzalez through visits and the telephone. He was
       also acquainted with Gonzalez’s daughter, Juana Martinez. Plaintiff called Martinez “his
       niece.”
¶ 10       Plaintiff stated that he was aware of Gonzalez’s real estate. He said that she owned a
       building with a beauty salon, which Gonzalez operated.
¶ 11       Plaintiff learned in 1999 that Martinez had cancer. Later, in March 2001, plaintiff spoke
       with Gonzalez over the phone and was informed that Gonzalez had cancer. Gonzalez invited
       plaintiff to visit in June 2001 for a party in honor of Martinez’s birthday. Plaintiff described
       Gonzalez’s condition as “very delicate” and “frail.” He said “she didn’t look well.” Plaintiff
       stated that he returned at the end of July and Gonzalez’s condition was worse. When he came
       to Chicago at the beginning of August, Gonzalez was at a “cancer hospital” in Waukegan,
       but was transferred to Rush. Plaintiff testified that Gonzalez was released to go home when
       the doctors felt “that they had no more recourse.”
¶ 12       Plaintiff stated that he had conversations with Gonzalez about her estate. She told him
       that her documents were kept in a bag in a bedroom closet. The documents included her will
       and certificates of deposit. Plaintiff testified that Gonzalez told him that he was to receive
       the documents. Gonzalez died on August 22, 2001. Plaintiff arranged the funeral.
¶ 13       Plaintiff identified four exhibits as the original certificates of deposit that Gonzalez left

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       him. All four of the certificates indicated that “Gaby Gonzalez” was the account holder. The
       trustee language included a change. For the 1999 accounts, the trustee language stated,
       “GABY GONZALEZ AS TRUSTEE FOR: JUANA GABRIELA MARTINEZ,” and beneath
       that it said, “RAFAEL GONZALEZ.” For the 2000 accounts, the first line of the trustee
       language stated, “AS TRUSTEE FOR: JUANA GABRIELLA MARTINEZ,” and beneath
       it a second line was added, “AS TRUSTEE FOR: RAFAEL GONZALEZ.” Additionally, a
       line was typed at the top of each of the four certificates, stating: “REVISED BENEFICIARY
       03/01/01 RC.” The certificates for the 1999 accounts each listed an opening balance of
       $50,000, while the certificates for the 2000 accounts each listed an opening balance of
       $60,000.
¶ 14        Plaintiff stated that he cashed the certificates for the 2000 accounts in September 2001
       at the Pulaski branch. He testified that he used the money for expenses for Martinez’s funeral
       and the care of Gonzalez’s stepmother, who lived in Mexico. Plaintiff presented the
       withdrawal slips for each of the accounts as an exhibit and it stated that $63,515.99, was
       withdrawn from each of the 2000 accounts, and included plaintiff’s signature and the date
       of September 29, 2001. The 2000 accounts were then closed. Plaintiff testified that the bank
       employee did not look at any records or review any other documents before she gave plaintiff
       the check.
¶ 15        Plaintiff stated he returned to Second Federal on November 15, 2001. He sought a check
       to pay the funeral home. He said he took the certificates for the 1999 accounts, his
       identification, the “payment slip from the funeral,” and Gonzalez’s death certificate. He
       spoke with an employee and told her he wanted to issue a check to pay the funeral services
       because he did not have a checking account. He said she looked over the documents, went
       inside the bank, and then came back with a check. Plaintiff testified that no one indicated to
       him that there was a question whether he was the beneficiary of this account. He did not
       speak with any other employee of Second Federal. An exhibit was presented that showed a
       copy of a check for $9,606.48, payable to Fortuna Brothers, as well as a copy of the teller
       receipt indicating payment from account number 375 and plaintiff’s signature.
¶ 16        Plaintiff testified that he returned to Second Federal on December 6, 2001, to obtain a
       check for attorney services on Gonzalez’s estate. He said he brought the certificates, his
       identification, and the bill from the attorney. He spoke with an employee. She did not ask
       him any questions, but instead she looked at plaintiff’s documents, went into the back of the
       bank, and came back with a check. A copy of the teller receipt with the account number and
       plaintiff’s signature and a copy of the check, payable to Owens, Owens & Rinn, Ltd., in the
       amount of $22,526.50, were presented as exhibits. The teller receipt had a handwritten note,
       “Approved by Gigi,” under the section for “Teller’s I.D.” The receipt also indicated that the
       money was drawn from account number 375. Again, plaintiff stated that no one asked him
       about his right to withdraw funds under the certificate.
¶ 17        Plaintiff stated his next visit to Second Federal was in July 2003. He spoke with an
       employee at a desk. He brought the certificates and asked if the accounts were still open and
       what the amounts were. Plaintiff said the employee informed him that the accounts were
       open and he could go to a teller. Plaintiff did not withdraw any money that day.


                                                -4-
¶ 18        In December 2003, plaintiff returned to the bank. He brought the certificates and his
       identification. He spoke with a teller and asked to close the accounts. He stated that the teller
       looked in the system and told him the accounts were closed. Plaintiff testified that he told her
       that was “impossible” because he had the original certificates. She went inside the bank and
       came back with two people. They explained to plaintiff that the money had been paid to
       Hector Gonzalez.
¶ 19        On cross-examination, plaintiff admitted that he did not have any firsthand knowledge
       of Gonzalez’s actions with Second Federal. He was not present at Second Federal with
       Gonzalez. Plaintiff stated no one at Second Federal informed him that he was not designated
       as the beneficiary on the 1999 accounts. Plaintiff admitted that he was not the executor of
       Martinez’s estate; she had named Hector as her executor. Plaintiff stated that other than the
       certificates, he has not seen any other bank documents that reflected him as the beneficiary
       of the 1999 accounts.
¶ 20        Mary Turk testified for plaintiff’s case. She stated that she formerly worked for Second
       Federal for 43 years. At the time she left Second Federal, Turk handled miscellaneous
       matters pertaining to “EFT” operations, checking operations, legal files and was in charge
       of office supply purchases. She also handled general customer problems. Turk did not
       supervise the tellers, but the tellers did come to her with questions. In 1999 and 2000, Turk
       was an assistant vice-president of Second Federal.
¶ 21        Turk identified the certificates of deposit on the 1999 and 2000 accounts. She stated that
       the certificates are issued when the account is opened and they are similar to a passbook-type
       of instrument. Turk was asked what the notation of “REVISED BENEFICIARY 03/01/01
       RC” meant. Turk answered, “That means that the owner, Gaby Gonzalez, was the account
       holder at that time, came in to change the beneficiary on these accounts. That was her intent,
       and it was typed this way by this–the letters, RC.” Turk stated that Rosa Cavilla worked in
       the new accounts area of the bank at that time.
¶ 22        Turk was also asked about the portion in which the language naming Martinez as trustee
       was crossed out and plaintiff’s name was added as trustee. Turk stated that “it’s not the way
       it should have been done, but it’s the way that Rosa did it.” Turk testified that this method
       had been used in prior years, but the preferred way was to issue a new certificate and a new
       signature card, “but this is what was done at this time.” Turk admitted that she did not
       believe there were any written procedures on how to change beneficiaries on certificates of
       deposit. Turk stated that a new signature card should have been issued and the account owner
       should have initialed the change.
¶ 23        Turk also testified that the signature cards from the 2000 accounts were signed twice, but
       Gonzalez did not initial where the beneficiary was changed. Copies of the signature cards
       were presented as exhibits. These signature cards included the language “REVISED
       BENEFICIARY 03/01/01 RC” and Martinez’s name was crossed out and plaintiff’s name
       was added in the section for beneficiary.
¶ 24        Turk stated that the account numbers for the 1999 accounts indicated that the accounts
       were opened at a different branch, the Archer Avenue office, and the original signature cards
       would have been maintained at that location. Despite this, Gonzalez would have been able


                                                 -5-
       to change the beneficiaries at the Pulaski office, but certain steps should have been done,
       such as contacting the Archer branch, asking them to pull the signature cards, and preparing
       new signature cards. Turk admitted that there were no procedures to perform these tasks.
       Turk also stated that it would not have been proper to return the certificates to the account
       holder unless all the steps to change the signature card had been completed.
¶ 25       Turk reviewed a copy of Gonzalez’s customer profile presented as an exhibit. The
       message section stated: “GABY GONZALEZ DECEASED 08/22/01. REVISED
       BENEFICIARY 03/01/01 RAFAEL GONZALEZ. PLEASE USE CAUTION 09/21/01.
       ANY QUESTIONS SEE GIGI. 09/21/01 MNG.” Turk testified that “MNG” was Myra Garza
       and that she was “GIGI.” She said this entry was on the computer system and it listed all four
       accounts.
¶ 26       Turk stated that she believed she was the person who approved plaintiff’s requests for
       checks to Fortuna Brothers and Owens, Owens & Rinn, Ltd. Turk testified that she approved
       plaintiff’s request to close the 2000 accounts in September 2001.
¶ 27       Turk testified that she met Martinez once. Martinez came to Second Federal and sought
       to withdraw money as the beneficiary, but Turk saw the accounts listed plaintiff as the
       beneficiary. Turk stated that she felt bad for Martinez as she was “very ill,” but she did not
       have the certificates of deposit or a death certificate. Turk stated that she was aware the
       money in the 1999 accounts was paid to Hector as the trustee for Martinez’s estate, but she
       did not approve the payout.
¶ 28       On cross-examination, Turk admitted that she never met Gonzalez and did not assist her
       when she came to Second Federal. She conceded that she does not have any personal
       knowledge of Gonzalez’s intent. She stated that after there were questions on the accounts,
       she spoke with Rosa Cavilla about the notations, but Cavilla did not have any recollection
       of anything. Turk also said that she did not believe she told Martinez that she was not the
       beneficiary on the 1999 accounts, which had been opened at the Archer branch.
¶ 29       Turk testified that she did not recall encountering an instance in which the certificates of
       deposit were in conflict with the bank signature card. Turk stated she did not know which
       document would control. Turk further testified that the signature card “is the ultimate source
       of ownership of the account.”
¶ 30       Turk stated that for a withdrawal to be made from the 1999 accounts, the signature cards
       would be reviewed. Since the signature cards for the 1999 accounts were at the Archer
       branch, they would have faxed copies over to the Pulaski branch. Turk agreed that this was
       normal custom and practice. Turk admitted that the signature cards for the 1999 accounts
       were lost for a period of time. Second Federal presented as an exhibit a copy of the original
       signature cards for the 1999 accounts which indicated Martinez as the beneficiary. One of
       the signature cards was unsigned by Gonzalez. Turk also noted that proxy cards for each of
       the 1999 accounts were signed by Gonzalez and showed Martinez as the beneficiary.
¶ 31       Turk testified that the copy of the customer profile for Gonzalez’s accounts included a
       handwritten notation, which stated “benef–Juana Gonzalez–daughter died 9-30-01.” Turk
       stated that the handwriting was hers. However, when asked about the typed message that
       indicated a revised beneficiary to plaintiff, Turk stated that she thought it applied to the

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       ownership of the accounts and she could not tell by looking at the message to which account
       it referred. Turk said she did not know for how many accounts Gonzalez requested to have
       the beneficiary changed when she came in on March 1, 2001.
¶ 32        Turk admitted in response to a question from the trial judge that the method of crossing
       out the name of beneficiary was still done “from time to time.” Turk testified that she had
       no reason to believe that the certificates were not modified by an employee of Second
       Federal.
¶ 33        Following Turk’s testimony, plaintiff rested. Second Federal moved for a directed
       finding, which the trial judge denied.
¶ 34        Gonzalo Gradilla testified that he was currently employed as the vice-president of retail
       banking at Second Federal and he previously held the position of chief operations officer at
       Second Federal. In the course of his employment, he stated that he was familiar with the
       forms and documents used in 1999 and 2000 for the certificates of deposit at issue. Gradilla
       said that he had never met plaintiff or Gonzalez, but he had met Martinez once.
¶ 35        Gradilla stated that if a customer wanted to open a certificate of deposit in 1999, he or
       she would be issued “a hardcover CD which maintains a history of the account as well as a
       signature card that we maintain at the branch.” Gradilla identified that the applications and
       proxy cards for the 1999 accounts which listed Gonzalez as the primary owner and Martinez
       as the beneficiary. Gradilla also identified the signature cards, which were maintained at the
       Archer branch. Gradilla admitted that over the course of the litigation, there was a period of
       time when the signature cards could not be located. He said the bank launched an
       investigation and found the cards in a box for closed account signature cards.
¶ 36        Gradilla testified that “account ownership is always supported by the signature card[,]
       which is a contract with our customer.” Gradilla stated the bank would not rely on the
       certificates in the case of a conflict. Gradilla admitted that he was not party to any
       discussions with Gonzalez on March 1, 2001, and did not have any personal knowledge of
       what she may have told a Second Federal employee about what she wanted done with her
       four accounts. He did not know why there are four certificates that show a revised
       beneficiary, but only two signature cards that showed a revised beneficiary.
¶ 37        Gradilla also stated that he was “part of the process” in approving the closing of the 1999
       accounts and issuing payment to Hector in June 2002. He said his participation was that Turk
       informed him that since they had signature cards that mentioned Martinez as the beneficiary,
       Hector would be bringing executor documentation to show that he was the executor of the
       estate of Juana Martinez, and that on the day he came in, Hector would have access to the
       accounts. Gradilla testified that when Hector came to the bank, they reviewed the signature
       cards, his identification and his designation as executor of the estate. Gradilla admitted that
       Hector did not have the actual certificates for the 1999 accounts. Instead, Gradilla had Hector
       sign a “lost passbook affidavit,” which indicated that he did not have possession of the
       certificates. Gradilla stated that during their investigation, no modified or amended signature
       cards were found for the 1999 accounts.
¶ 38        On cross-examination, Gradilla admitted that he did not play a very big role in approving
       the payout to Hector. He stated that he did not know that plaintiff had the original certificates

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       and admitted that if he had known there was a question as to who the funds belonged to, they
       would not have paid out. Gradilla responded to a question from the trial judge that the font
       used on the certificates was one used on the bank’s typewriters.
¶ 39        Myra Garza testified that she was currently employed as the retail operations manager
       for Second Federal. She stated that from 1993 to 2005, she was a supervisor for Second
       Federal. Garza admitted that the initials MNG from the customer profile message were hers.
       She said that she inputted the message into Gonzalez’s customer profile in the computer
       system. The message was entered on September 21, 2001, and all of it was entered at one
       time. Garza stated that “the purpose of this message [was] to alert the teller to use caution
       before proceeding with any transactions.” Garza testified that she received this information
       from someone else and it was not her firsthand knowledge. She said she received this
       information from Turk.
¶ 40        Garza admitted on cross-examination that a person would not be permitted to complete
       a lost passbook affidavit and close the account if the bank employees knew a third party was
       in possession of the certificates. Garza also testified that the change to the certificates was
       a method used by Second Federal in 2001. Garza stated that a customer would not have been
       allowed to leave the bank with the certificates until all the procedures were complete to
       change the beneficiary, which included signing a new signature card indicating a change of
       beneficiary. Garza conceded that Second Federal did not have any written procedures in 2001
       for changing the names of beneficiaries on the certificates of deposit.
¶ 41        Garza testified that she was not present when the accounts were changed in March 2001.
       Garza stated it was possible for a customer to change his or her mind about changes to his
       or her accounts and leave the bank without signing a signature card. She said the transaction
       would not be complete. However, Garza also said the certificates would reflect his or her
       wishes as of that day and he or she would need to come back with certificates to change his
       or her account again.
¶ 42        After Garza’s testimony, Second Federal entered a stipulation that Hector was issued two
       checks: one in the amount of $23,841.49, for account 375 and one for $56,631.98, for
       account 359. Both sides then rested. Following closing arguments, the trial judge made his
       finding that the plaintiff proved his case by clear and convincing evidence. The judge noted
       that he listened very closely to the testimony and observed the witnesses’ demeanor and that
       he was also “intimately familiar with the exhibits allowed into evidence by both sides.” The
       judge entered an award for plaintiff in the amount of $111,045, which included prejudgment
       interest. The judge also entered judgment against Hector in a third-party action for that
       amount.
¶ 43        This appeal followed.
¶ 44        On appeal, Second Federal argues that the trial court erred in finding in favor of plaintiff
       because the evidence failed to establish by clear and convincing evidence that plaintiff was
       the beneficiary of the 1999 accounts.
¶ 45        After a bench trial, we will not disturb the trial court’s findings of fact unless they are
       against the manifest weight of the evidence. Southwest Bank of St. Louis v. Poulokefalos, 401
       Ill. App. 3d 884, 890 (2010). “The reviewing court gives great deference to the trial court’s

                                                 -8-
       findings because, as the trier of fact, the trial court is in a superior position to observe the
       witnesses while testifying, to judge their credibility and to determine the weight their
       testimony and other evidence should receive.” International Capital Corp. v. Moyer, 347 Ill.
       App. 3d 116, 121-22 (2004). A finding is against the manifest weight of the evidence only
       if the opposite conclusion is apparent or if the finding appears to be arbitrary, unreasonable
       or not based on the evidence. Southwest Bank, 401 Ill. App. 3d at 890; Moyer, 347 Ill. App.
       3d at 122.
¶ 46        All of the accounts created by Gonzalez were payable on death (POD) accounts, also
       known as Totten trust accounts. “A Totten trust is created when a deposit is made by a
       person (the holder) of his or her own money in his or her own name as trustee for another.”
       In re Estate of Weiland, 338 Ill. App. 3d 585, 589 (2003) (citing In re Estate of Davis, 225
       Ill. App. 3d 998, 1005 (1992)). “[W]here a decedent, during his lifetime, executes an
       instrument creating a bank account in his or her own name as trustee for another, there is a
       presumption that the decedent intended to create a [POD] trust in favor of the named
       beneficiary or beneficiaries.” Weiland, 338 Ill. App. 3d at 597 (citing In re Estate of Petralia,
       48 Ill. App. 2d 122, 136 (1964), aff’d, 32 Ill. 2d 134 (1965)).
¶ 47        In determining the proper burden of proof in cases involving a Totten trust account, the
       Weiland court reviewed cases involving joint accounts. The court concluded that the same
       burden of proof should be applicable to both joint accounts and Totten trust accounts.
       Weiland, 338 Ill. App. 3d at 597-98. Thus, “a written instrument executed by the holder
       expressing his or her intent to create a POD account raises the presumption of the holder’s
       intent, and such presumption may be overcome only by clear and convincing evidence.
       However, in the absence of a written instrument executed by the holder, the claimant must
       show the holder’s intent to create a Totten trust by clear and convincing evidence.” Weiland,
       338 Ill. App. 3d at 598.
¶ 48        The statute governing POD accounts does not specify the signature card as the controlling
       instrument when changing beneficiaries.
¶ 49        Section 4(a) of the Illinois Trust and Payable on Death Accounts Act states:
                “If one or more persons opening or holding an account sign an agreement with the
                institution providing that on the death of the last surviving person designated as
                holder the account shall be paid to or held by [one or more designated beneficiaries],
                the account, and any balance therein which exists from time to time, shall be held as
                a payment on death account and unless otherwise agreed in writing between the
                person or persons opening or holding the account and the institution:
                    (a) Any holder during his or her lifetime may change any of the designated
                [beneficiaries] to own the account at the death of the last surviving holder without
                the knowledge or consent of any other holder or the designated beneficiaries by a
                written instrument accepted by the institution[.]” 205 ILCS 625/4(a) (West 2002).
¶ 50        The cardinal rule in construing a statute, to which all others are subordinate, is to
       ascertain and give effect to the intent of the legislature. Alvarez v. Pappas, 229 Ill. 2d 217,
       228 (2008). To determine legislative intent, we turn to the language of the statute, which is
       the best indicator of its intent. Alvarez, 229 Ill. 2d at 228.

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¶ 51       Section 4(a) specifically allows a holder to change the beneficiary on a POD with “a
       written instrument accepted by the institution.” 205 ILCS 625/4(a) (West 2002). See also
       Weiland, 338 Ill. App. 3d at 603 (“neither a signature card nor any other particular form of
       writing is required by the statute. Instead, the record must establish the existence of a writing
       expressing the intent of the holder to establish a POD account.”). The crux of Second
       Federal’s argument is that the signature cards for the 1999 accounts are the only written
       instrument that can demonstrate a change of beneficiary. However, we first note that the
       signature card for account number 375 was never signed by Gonzalez. Thus, the only
       document which supports Second Federal’s assertion is the signature card for account
       number 359. Moreover, the evidence presented at trial showed that Second Federal and its
       employees allowed money to be withdrawn from the accounts without a signature card and
       relied on the certificates of deposit to substantiate plaintiff’s claim as a beneficiary. These
       actions support a finding that the certificates of deposit constitute “a written instrument
       accepted by the institution” for a holder to indicate a change of beneficiary.
¶ 52       Plaintiff submitted multiple documents indicating Gonzalez’s intention to change the
       beneficiary on all accounts. All four certificates of deposit indicate that the beneficiary was
       changed to plaintiff on March 1, 2001. Second Federal employees testified that the font used
       to type in the changes was from a Second Federal typewriter. Additionally, the customer
       profile for Gonzalez listed all four accounts and included a message that the beneficiary was
       changed to plaintiff on March 1, 2001. Plaintiff also presented the signature cards for the
       2000 accounts which have Martinez’s name crossed out and plaintiff’s name typed
       underneath. However, no new signature card was issued, as Second Federal contends was
       required, nor did Gonzalez initial the changes on the cards. We note that the 2000 accounts
       were opened at the Pulaski branch, which was the location where Gonzalez went to change
       the beneficiaries.
¶ 53       Turk testified that there were no written procedures on how to change a beneficiary. She
       stated that new signature cards should have been issued instead of simply crossing out
       Martinez’s name and adding plaintiff’s name because doing it that way is “not the way it
       should have been done, but it’s the way that Rosa did it.” She also noted that this method of
       crossing out the prior beneficiary and typing in a new one had been used in prior years. Turk
       further stated that Gonzalez would have been able to change the beneficiary on the 1999
       accounts, which were opened at a different branch, at the Pulaski branch, but the bank
       employees would need to follow certain steps to change the signature cards. Again, Turk
       admitted there were no procedures for employees to perform these tasks.
¶ 54       Evidence was also presented through exhibits and witness testimony that Second Federal
       permitted plaintiff to use funds from the 1999 accounts to pay bills for Gonzalez’s estate. A
       check was issued first for the funeral home and later a check for the attorneys for the estate.
       Plaintiff testified that when he went to Second Federal for these checks he presented his
       identification, the certificates of deposit and the invoices. He was not questioned about his
       right to withdraw funds from the accounts. These transactions indicate that Second Federal
       considered the certificates of deposit listing plaintiff as the beneficiary to be sufficient
       documentation to release funds. Second Federal asserts that the invoices were paid because
       they were billed to Martinez and the checks were issued directly to the third-party creditors,

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       but we are not persuaded because at the time of the transactions, plaintiff did not present any
       documents showing that he was authorized to withdraw funds on Martinez’s behalf and
       employees did not question plaintiff about his ownership of the accounts. Further, plaintiff
       testified that he had the checks prepared in the name of the creditors because he did not have
       a checking account.
¶ 55       Under the facts of this case, Second Federal, through the actions of its employees,
       permitted Gonzalez to change her beneficiary to plaintiff and then gave plaintiff access to the
       funds without any question as to the signature card. Since the statute governing POD
       accounts allows for the change in beneficiary on a written instrument accepted by the
       institution, the certificates of deposit were sufficient proof of the beneficiary change and
       Second Federal acknowledged the certificates as such when it permitted plaintiff to withdraw
       funds as the beneficiary. Given this evidence of documentary intent and the actions by
       Second Federal recognizing plaintiff as the beneficiary, we do not find that the opposite
       conclusion is apparent nor was the trial court’s finding arbitrary, unreasonable or not based
       on the evidence. Accordingly, we hold that the trial court’s findings were not against the
       manifest weight of the evidence and affirm its award in favor of plaintiff.
¶ 56       Finally, Second Federal asserts that plaintiff was not entitled to prejudgment interest on
       the award because interest was not specifically requested in his request for relief in his
       complaint. Plaintiff responds that Illinois law did not require him to specifically request
       interest in count III of his complaint.
¶ 57       Section 2 of the Interest Act provides:
                “Creditors shall be allowed to receive at the rate of five (5) per centum per annum for
                all moneys after they become due on any bond, bill, promissory note, or other
                instrument of writing; on money lent or advanced for the use of another; on money
                due on the settlement of account from the day of liquidating accounts between the
                parties and ascertaining the balance; on money received to the use of another and
                retained without the owner’s knowledge; and on money withheld by an unreasonable
                and vexatious delay of payment. In the absence of an agreement between the creditor
                and debtor governing interest charges, upon 30 days’ written notice to the debtor, an
                assignee or agent of the creditor may charge and collect interest as provided in this
                Section on behalf of a creditor.” 815 ILCS 205/2 (West 2002).
¶ 58       “Prejudgment interest need not be requested in the complaint in order to be recoverable
       under the Interest Act; when the evidence at trial establishes that a party is entitled to
       prejudgment interest under the Interest Act, a request for such interest will be read into the
       complaint.” Prignano v. Prignano, 405 Ill. App. 3d 801, 821-22 (2010) (citing Kehoe v.
       Wildman, Harrold, Allen & Dixon, 387 Ill. App. 3d 454, 473 (2008); Boyd v. United Farm
       Mutual Reinsurance Co., 231 Ill. App. 3d 992, 1000 (1992) (“Contrary to the defendant’s
       argument, the mere fact that plaintiffs’ complaint did not ask for interest was of no moment,
       since interest is provided by statute and will be read into the complaint.”) Madison Park
       Bank v. Field, 64 Ill. App. 3d 838, 843 (1978) (“The fact too that the complaint did not ask
       for interest is of no moment, since the same is provided for by statute and will be read into
       the complaint.”)


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¶ 59      Here, Second Federal deprived plaintiff as the beneficiary the funds from the 1999
       accounts and the trial court properly read a request for prejudgment interest under the Interest
       Act into the complaint. Therefore, we affirm the trial court’s award of prejudgment interest.
¶ 60      Based on the foregoing reasons, we affirm the decision of the circuit court of Cook
       County.
¶ 61      Affirmed.




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