Vigilante v. National Bank of Austin

• Decision Date: 20 May 1982
• Docket Number: No. 81-1827,81-1827
• Citation: Vigilante v. National Bank of Austin, 436 N.E.2d 652, 106 Ill.App.3d 820, 62 Ill.Dec. 626 (Ill. App. 1982)
• Parties: , 62 Ill.Dec. 626 Frank J. VIGILANTE and Annette Vigilante, Plaintiffs-Appellants, v. NATIONAL BANK OF AUSTIN, Defendant-Appellee.
• Court: Appellate Court of Illinois

Page 652

436 N.E.2d 652

106 Ill.App.3d 820, 62 Ill.Dec. 626

Frank J. VIGILANTE and Annette Vigilante, Plaintiffs-Appellants, v.NATIONAL BANK OF AUSTIN, Defendant-Appellee.

No. 81-1827.

Appellate Court of Illinois, First District, Fourth Division.

May 20, 1982.

Jerome Marvin Kaplan, Marc K. Schwartz, Chicago, for plaintiffs-appellants.

John E. Coffey, Richard A. Kerwin, Chicago, for defendant-appellee.

JIGANTI, Justice:

The plaintiffs, Frank J. Vigilante and Annette Vigilante, were indebted to the defendant, National Bank of Austin (National) on a note.The dispute between the parties centers around whether the note was extended by an agreement between the parties.National's position is that there was no extension agreement and on the maturity date of the note exercised its right of set-off and deducted money from the plaintiff's savings account to pay off the note's principal and interest.The plaintiffs contend that National had no right to do this because the note was not then due and brought this action for actual and punitive damages.On a motion for summary judgment, the trial court found that there had been no extension agreement and entered judgment in favor of National.

The promissory note at issue was dated January 3, 1977.By its terms, it was a six-month note in the amount of $335,000 with a maturity date of July 5, 1977, with interest at the rate of 81/4 percent per annum payable when the note was due.The assignment of the beneficial interest in various trusts was recited on the face of the note as being the collateral for this loan.The note was signed by both Frank and Annette Vigilante.The parties to this action agree that this note consolidated and renewed prior loans made by National to the Vigilantes.

According to the plaintiffs, certain letters which were exchanged between the parties, certain conduct on the part of the Vigilantes and certain statements contained in the minutes of various committees of the Bank are evidence of an agreement between National and the Vigilantes to extend this note.

On March 24, 1977, approximately two months after the note was signed, Robert F. Callery, National's Executive Vice President, sent a letter to Frank Vigilante.The plaintiffs contend that this letter sets out the terms of the extension agreement.Specifically, the plaintiffs claim that this March 24 letter changes their obligation from a promissory note due at maturity to an installment note due in approximately six years with $5000 plus 81/4 percent interest due each month to be deducted from the Vigilantes' account at the bank.The March 24 letter stated:

"Mr. Burke has advised me that it has been mutually agreed that reductions per month of $5000 plus interest will commence this month.Unless I hear different from you, we are expecting a check from you per this agreement prior to the end of this month."(Emphasis added.)

Following this letter, the bank began to make monthly interest deductions from the Vigilantes' bank account.

Over one month later on April 25, 1977, Frank Vigilante responded to the letter.The plaintiffs contend that this response indicates that an extension contract had been agreed to and that the consideration for the extension was monthly deductions of $5000 plus 81/4 percent interest which had not been required under the original note.The April 25 letter from Frank Vigilante to the bank stated:

"I am sorry that I have not gotten to this sooner but I have been very busy.Enclosed please find my check in the amount of $15,000 which I am forwarding in order to lower my Note with your bank."

A letter dated May 16, 1977, from Robert Callery to Frank Vigilante is the third and final document which the plaintiffs claim comprise the extension agreement.The letter states:

"This letter is to confirm the conditions and terms as to the continuation of your note with our bank.

We will forbear further action regarding our notice to you of the call of your note in full on the basis that we will continue to receive a regular payment of $5,000 plus interest each month.We continue to reserve our rights and conditions of the note as to further review of your credit." (Emphasis added.)

On June 17, 1977, less than a month before the maturity date on the promissory note at issue, Frank and Annette Vigilante deposited $350,000 in a savings account at National and made one more $5000 payment to National.Then on July 6, 1977, Robert Callery wrote Frank Vigilante a letter informing him that because his note with an unpaid principal balance of $315,000 became due and payable in full on July 5, 1977, National had exercised its right of set-off and charged his savings account for principal in the amount of $315,000 plus interest in the amount of $2,398.23.

In addition to the above facts, the plaintiffs also cite certain language in four separate sets of minutes kept by National to support their position that an extension agreement was in effect.The first set of minutes is from an April meeting of the Loan and Discount Committee which was held approximately three months before the original note was due.The minutes state: "The Committee was informed that the agreed upon monthly reduction program has not been adhered to; * * *.It was agreed that the borrower be informed that ...