Continental Nat'l Bk. of Fort Worth v. Schiller

12 Citing cases

  1. Rush-Presbyterian-St. Luke's Medical Center v. Hellenic Republic

    980 F.2d 449 (7th Cir. 1992)   Cited 11 times
    Determining that a hospital which failed to obtain a "certificate of need" from a state board in order to perform kidney transplants was not barred from collecting its bills for services because the statutory violation was not a serious affront to public policy or a serious injury to the public welfare that would justify a refusal to enforce the contract

    The hospitals seek to bypass this issue by claiming under the guarantees as well as under the contract; the guarantees contain no limit. But either the guarantees are of the Greek government's performance under the contract, and therefore are subject to any payment ceiling in the contract, or they are separate contracts and therefore require consideration. Continental National Bank v. Schiller, 89 Ill.App.3d 216, 44 Ill.Dec. 471, 411 N.E.2d 593 (1980). The latter possibility requires us to distinguish between guarantees issued before and after the contract was signed.

  2. Justine Realty Co. v. American Nat. Can Co.

    976 F.2d 385 (8th Cir. 1992)   Cited 10 times   1 Legal Analyses

    II. DISCUSSION Acceleration clauses are widely recognized and enforceable under Illinois law. Continental Nat'l Bank v. Schiller, 89 Ill. App.3d 216, 44 Ill.Dec. 471, 473, 411 N.E.2d 593, 595 (1980) (acceleration of an installment loan); Plasti-Drum Corp. v. Ferrell, 70 Ill.App.3d 441, 26 Ill.Dec. 723, 731, 388 N.E.2d 438, 447 (1979) (acceleration of a promissory note); Curran v. Houston, 201 Ill. 442, 66 N.E. 228 (1903) (acceleration of a deed of trust note). An acceleration clause sets the damages due at the time of default as the amount attributable to the principle in the remaining periodic payments.

  3. Promero, Inc. v. Mammen

    02 C 1191 (N.D. Ill. Oct. 30, 2002)   Cited 11 times
    Finding that a substantial portion of events giving rise to plaintiff's claims occurred in Illinois when the defendant engaged in discussions related to the contract while in Illinois, contract negotiations involved various communications to and from Illinois and the subject of the contract was a potential investment in Illinois

    There is no question that under Illinois law parties can enter into contracts to guarantee another's pre-existing debt for additional consideration. See Cant'l Nat'l Bank of Fort Worth v. Schiller, 89 Ill. App.3d 216, 219 (3d Dist. 1980). Accordingly, the Court denies defendants' Rule 12(b)(6) motion to dismiss Count I.

  4. Citibank, N.A. v. Bearcat Tire, A.G.

    550 F. Supp. 148 (N.D. Ill. 1982)   Cited 5 times
    Finding that confession of judgment by plaintiff's counsel is expressly permitted under Illinois law and does not invalidate the judgment

    In any case Citibank asserts (see n. 4) Fishman was in default on the earlier guaranty when he executed the Guaranty. If consideration had to flow to him directly in the Guaranty, it plainly did so. Moreover Fishman's Guaranty was part of the loan renewal transaction represented by the Note — it did not guarantee a "preexisting debt." See Continental Nat'l Bank of Fort Worth v. Schiller, 89 Ill. App.3d 216, 219-20, 44 Ill.Dec. 471, 474-475, 411 N.E.2d 593, 596-97 (3d Dist. 1980). Fishman raises one additional argument that does his cause little good — that the Guaranty is defective on its face because he guarantees loans to Beatcat Tire A.G. in which he has "no holdings or interest," Mem. 6, "not Bearcat Tire A.G."

  5. Cox v. Nostaw, Inc. (In re Cent. Ill. Energy Coop.)

    526 B.R. 786 (Bankr. C.D. Ill. 2015)   Cited 10 times
    Holding that lack of consideration was an affirmative defense that was waived by the debtor pre-petition; therefore, the trustee could not use it as a basis to avoid a transfer under § 541

    The court then applied the long-standing principle of law that when one person promises to guarantee or pay the antecedent debt of another, some new consideration is necessary to support the promise, such as the creditor's agreement to release the debtor or grant forebearance of some kind. That principle is a corollary to the rule that a contemporaneous guaranty of a third person's debt does not need independent consideration. L.D.S., LLC v. Southern Cross Food, Ltd., 2011 IL App (1st) 102379, 352 Ill.Dec. 613, 954 N.E.2d 696, 708 ; Continental Nat. Bank of Ft. Worth v. Schiller, 89 Ill.App.3d 216, 219, 44 Ill.Dec. 471, 411 N.E.2d 593 (Ill.App. 3 Dist. 1980). The Leaf River court also recognized that the new consideration need not flow to the third party, as it is sufficient that the original debtor alone be benefitted, by release or forebearance.

  6. Hale Contracting v. United N.M. Bank

    110 N.M. 712 (N.M. 1990)   Cited 39 times
    Concluding that modification requires an "exchange of consideration"

    An actual intent to waive the requirement for timely payment, or to waive the contractual right to declare a default without notice, as provided for in their agreement, must be implied from the parties conduct in the performance of that obligation. Cf. Continental Nat'l Bank of Fort Worth v. Schiller, 89 Ill. App.3d 216, 44 Ill.Dec. 471, 411 N.E.2d 593 (1980) (evidence that bank had accepted late payments on earlier debts insufficient to show a waiver, express or implied, of timely payments on present debt). Otherwise the express terms of the agreement would have no meaning at the time of its execution.

  7. L.D.S., LLC v. S. Cross Food, Ltd.

    2017 Ill. App. 163058 (Ill. App. Ct. 2017)   Cited 4 times

    However, if a guaranty is executed contemporaneously with the original contract, the consideration for the original contract is sufficient consideration for the guaranty and no new consideration is required for the guaranty. Tower Investors , 371 Ill. App. 3d at 1028, 309 Ill.Dec. 686, 864 N.E.2d 927 ; Pedott v. Dorman , 192 Ill. App. 3d 85, 94, 139 Ill.Dec. 156, 548 N.E.2d 541 (1989) ; Continental National Bank of Fort Worth v. Schiller , 89 Ill. App. 3d 216, 219–20, 44 Ill.Dec. 471, 411 N.E.2d 593 (1980) ; Vaughn v. Commissary Realty, Inc. , 30 Ill. App. 2d 296, 302, 174 N.E.2d 567 (1961).¶ 37 In the case at bar, the trial court found that the guaranty was executed after the lease agreement had been executed and therefore required new consideration to be enforceable.

  8. Pink Fox, LLC v. Sing Chok Kwok

    2016 Ill. App. 150868 (Ill. App. Ct. 2016)   Cited 1 times

    " (Internal quotation marks omitted.) Continental National Bank of Ft. Worth v. Schiller, 89 Ill. App. 3d 216, 219 (1980). "If the promise of the guarantor is shown to have been given as part of a transaction or arrangement which created the guaranteed debt or obligation, it is not essential to a recovery on the promise of guaranty that the promise shall have been supported by consideration other than that of the principal debt-that is, one and the same consideration may suffice for both contracts where the contract of guaranty has been entered into at the time of creation of the principal obligation."

  9. L.D.S., LLC v. Southern Cross Food, LTD

    2011 Ill. App. 102379 (Ill. App. Ct. 2011)   Cited 25 times
    In L.D.S., LLC, the lease identified the parties to the lease as L.D.S. and Southern Cross, and the integration clause provided that the lease contract “ ‘contains all of the agreements of the parties hereto’ (emphasis added).

    However, if a guaranty is executed contemporaneously with the original contract, the consideration for the original contract is sufficient consideration for the guaranty and no new consideration is required for the guaranty. Tower Investors, 371 Ill. App. 3d at 1028; Pedott v. Dorman, 192 Ill. App. 3d 85, 94 (1989); Continental National Bank of Fort Worth v. Schiller, 89 Ill. App. 3d 216, 219-20 (1980); Vaughn v. Commissary Realty, Inc., 30 Ill. App. 2d 296, 302 (1961). In the case at bar, the verified second amended complaint contains allegations that the lease and the guaranty were executed contemporaneously as part of a single "lease transaction," despite the fact that the guaranty was executed six days after the execution of the lease.

  10. Pedott v. Dorman

    192 Ill. App. 3d 85 (Ill. App. Ct. 1989)   Cited 15 times

    • 9, 10 Finally, as neither defendant, plaintiff, nor CNB rebutted the presumption of consideration, judgment was properly entered against defendant as CNB's guarantor. Where a guaranty is executed contemporaneously with an original note or obligation, the consideration for the note or obligation furnishes sufficient consideration for the guaranty. ( Continental National Bank v. Schiller (1980), 89 Ill. App.3d 216, 411 N.E.2d 593; First National Bank v. Chapman (1977), 51 Ill. App.3d 738, 366 N.E.2d 937.) As such, a guarantor is liable on a note even though he does not receive the consideration flowing from the payee.