The court held that BOI's recovery would be reduced by the amount of loss that the Debtor could prove resulted from BOI's lack of notice of default. The Bankruptcy Court relied on the case of Juzwik v. Juzwik, 140 Ill. App.3d 644, 94 Ill.Dec. 926, 929-30, 488 N.E.2d 1319, 1322-23 (1986) in stating that, "although there is no duty to give notice of default as a prerequisite for bringing a cause of action based on a guarantee, the failure of a party holding a guarantee to notify the guarantor of the obligor's default does provide a defense to the extent of any loss or damage sustained as a result of such failure to give notice of default." (Transcript, November 17, 1994, p. 4). Accordingly, the Bankruptcy Court specified that, at trial, Debtor had the burden of proving (1) when default first occurred on which the bank could take action; (2) the value of her interest in the collateral on that date; (3) the outstanding indebtedness to BOI on that date; and (4) what Debtor could have done, if anything, to spare her loss. (Transcript, November 17, 1994, p. 6; Transcript, May 22, 1995, pp. 4-6).
See State Bank of East Moline v. Cirivello, 74 Ill.2d 426, 24 Ill.Dec. 839, 840, 386 N.E.2d 43, 45 (1978); Newman-Green, Inc. v. Alfonzo-Larrain R., 605 F. Supp. 793, 799 (N.D.Ill. 1985); Mortgage Associates, Inc. v. Cleland, 494 F. Supp. 683, 685 (N.D.Ill. 1980) rev'd other grounds, 653 F.2d 1144 (7th Cir. 1981). Although an unconditional guarantor is not, as a matter of law, absolutely entitled to notice of the principal's default, Juzwik v. Juzwik, 140 Ill. App.3d 644, 94 Ill.Dec. 926, 929-30, 488 N.E.2d 1319, 1322-23 (2d Dist. 1986), a guarantee may expressly provide that the guarantor's obligations are conditioned upon notice. The court agrees with Uni-Fin that proper notice was a condition to its obligations under the Guarantee and that the fifteen day notification period under the Guarantee began to run thirty days from the invoice date.
(Ill. Rev. Stat. 1987, ch. 110, par. 2-1110.) The court must determine whether the petitioner has presented a prima facie case and grant the motion only if he has not done so. ( Juzwik v. Juzwik (1986), 140 Ill. App.3d 644, 648-49.) On appeal, we will not disturb the court's decision unless it is contrary to the manifest weight of the evidence.
In order to prevail, UAL must prove (1) the original indebtedness of ALG Trust, (2) ALG Trust's default, and (3) the guarantee of ALG Trust's debt by ALG. See Continental Bank N.A. v. Everett, 760 F. Supp. 713, 716 (N.D.Ill. 1991), aff'd, 964 F.2d 701 (7th Cir.), cert. denied, 506 U.S. 1035, 113 S.Ct. 816, 121 L.Ed.2d 688 (1992); Juzwik v. Juzwik, 140 Ill. App.3d 644, 94 Ill.Dec. 926, 929, 488 N.E.2d 1319, 1322 (1986) (citing Mid-City Indus. Supply Co. v. Horwitz, 132 Ill. App.3d 476, 87 Ill.Dec. 279, 285, 476 N.E.2d 1271, 1277 (1985)). ALG does not dispute that ALG Trust failed to make several payments to UAL, including basic rent payments from February 1994 to the end of the lease term, maintenance payments on the amount of time the aircraft was in operation in January and February 1994, and various costs incurred by UAL in repossessing the aircraft and seeking payment from ALG. Pl.'s 12(M) ΒΆΒΆ 47-88.