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  1. 1. December 2013 Vol. 58, No. 3 Commercial Banking, Collections & Bankruptcy Law The newsletter of the Illinois State Bar Association’s Section on Commercial Banking, Collections & Bankruptcy Law Illinois State Bar Association Inside Attorney fees provision in invoice binding on buyer (N.D. Illinois 2013). . . 1 Illinois business records: Getting them in at trial. . . . . 1 Defendant bank not liable for permitting judgment debtor to transfer over $700,000 from accounts. . . . . . . . . . . . . 4 The aftermath of Cypress Creek—How newly-enacted HB 3636 affects commercial mortgage lenders . . . . . . . . . 5 Upcoming CLE programs. . . . . . . . . . . . . . . . . 6 Mentors needed for ISBA Lawyer-to-Lawyer Mentoring Program . . . . . . . 8 If you're getting this newsletter by postal mail and would prefer electronic delivery, just send an e-mail to Ann Boucher at I t’s not unusual for complex litigation cases to drag on for several years, resulting in astro- nomical attorney fees and litigation costs to the parties. When this happens, whether a liti- gant can recover his attorney fees at the lawsuit’s end assumes primary importance. On the issue of recovering fees, Illinois applies the “American Rule”: each side is responsible for its own fees unless: (1) a contract contains ”prevailing party” fee-shifting language; or (2) a statute provides for fees. See, e.g. Estate of Downs v. Webster, 307 Ill.App.3d 625, 240 Ill.Dec. 309, 716 N.E.2d 1256 (1999). On this last point, several State and Fed- eral statutes – particularly in consumer realm - al- low a successful claimant to recover fees in addi- tion to any money damage award. Enter this fact pattern: a seller and buyer of good enter into a written contract. The contract is silent on attorney fees but the seller’s invoices contain boiler-plate fee-shifting language (i.e., the invoices say that if buyer fails to pay invoice within 30 days (usually), the seller can recover unpaid invoice amount plus its attorney fees, collection costs and interest (typically at 18% annually)).Thebuyerthendefaultsandsellersues for damages and includes in its damage claim, the unpaid invoices, its attorney fees, interest at 18% and costs. The buyer defends on the basis that the contract doesn’t provide for attorney fees and therefore, the seller’s boilerplate fees and interest language is not binding on the buyer since those terms were never part of the parties’underlying agreement. I’ve been on both sides of this fact pattern and have both won and lost on the issue.The dif- fuse results illustrate the law’s inconsistency as to whether an invoice’s attorney fees provision is binding on the breaching party. And the higher Attorney fees provision in invoice binding on buyer (N.D. Illinois 2013) By Paul B. Porvaznik T he specter of not being able to get a key document into evidence at a breach of contract trial elicits feelings of both panic and embarrassment. I’ve learned from painful experience to always have evidentiary founda- tion and authenticity considerations at the fore- front of my trial preparation plan. I’ve also found that having a working knowledge of Illinois Su- premeCourtRule236(SCR236),aswellasFeder- al and Illinois Evidence Rules 803(6) and 902(11) (hearsay exception and self-authentication rules for business records, respectively) is essential to preparing for and proving my client’s breach of contract case at trial. Three weeks ago, in Bank of America v. Land, 2013 IL App (5th) 120283, the Fifth District dis- cussed the content and reach of the business record exception to the hearsay rule in the con- text of a mortgage foreclosure suit. The plaintiff bank sued to foreclose a mortgage and later Continued on page 2 Continued on page 2 Illinois business records: Getting them in at trial By Paul B. Porvaznik
  2. 2. 2 Commercial Banking, Collections & Bankruptcy Law | December 2013, Vol. 58, No. 3 the dollar amount involved and the longer the case drags on, the more critical the attor- ney fees issue. The Northern District recently weighed in on the fee-shifting-language-in-invoice question in VLM Food Trading International, Inc. v. Illinois Trading Co., 2013 WL 816103 (N.D.Ill. 2013). The Court held that a seller of frozen foods could recover both its unpaid invoices and its attorney fees against a de- fendant wholesaler even where the parties’ contract was silent on attorney fees, costs and interest. The reason: the seller’s invoices contained fee language and provided for an- nual interest on unpaid sums at 18%. VLM (seller) sued under the Federal Per- ishable Agricultural Commodities Act, 7 USC §499a et seq. (“PACA”), which allows a food seller to impose a floating constructive trust on goods sold to a buyer who fails to pay for them. The plaintiff joined a state law breach of contract claim with its Federal PACA claim. In allowing the seller to recover its attor- neys fees (despite the absence of contractual fee-shifting language) after an evidentiary merits hearing, the Court noted the follow- ing: (a) seller submitted 18 invoices totalling nearly $200K to buyer; and all invoices con- tained attorney fees and interest language; (b) the buyer’s bookkeeper admitted receiv- ing the invoices and never objecting to the form fees and interest language in the invoic- es; and (c) plaintiff’s representative testified that in the food wholesaling business, it was customary for a seller like plaintiff to include fee-shifting and interest provisions in its in- voices. These facts were central to the court denying buyer’s argument that the attorney fee language in the invoices were material changes to the contract under UCC 2-207. First year Sales class/’battle of the forms” nightmare, er um, I mean “flash- back!!”: UCC 2-207 (810 ILCS 5/2-207) provides that additional contract terms are gener- ally construed as counter-proposals but between “merchants”, additional terms are binding unless the terms materially alter the contract’s substance. VLM, at *6. The VLM Court equated the statute’s “materially alter” language with an “unreasonable surprise” to the other contracting party. Id.,JadaToys,Inc. v. Chicago Import, 2009 WL 3055370 (N.D.Ill. 2009). The parties were clearly “merchants” under UCC Article 2: they were both high- volume food sellers and buyers. And since defendant testified that it received, saw and never objected to the invoices’fee language and plaintiff testified that it was an industry standard to include fee-shifting in product invoices, the Court found no unreasonable surprise to the breaching buyer. As a result, the invoice’s attorney fees and interest lan- guage did not work a material change to the contract. VLM, at *6. Take-aways: Major win for sellers; “red alert”territory for buyers. For sellers, it opens the door to claim fees even where a contract is silent on fees and interest (usually, you can only get 5% pre-judgment interest in Illinois). So long as the invoice contains fees/inter- est language and buyer doesn’t object, the case supports a seller claiming these items as additional damages. Goods buyers should clearly be hypervigilant to boilerplate attor- ney fees language in invoices and should timely object to any responsibility for the seller’s fees where the contract doesn’t con- tain a fee-shifting clause.The other benefit to sellers that I see from this case is it will pro- vide added leverage in settlement negotia- tions. Because now, and assuming a seller’s invoices reference attorney fees, a seller will be able to raise the specter of not only re- covering unpaid invoices at trial but also its fees. This will allow the seller to increase its pre-trial settlement demand to include the amount of fees and costs incurred up to the demand date. Note: one factual oddity of VLM is that it was brought under the arcane PACA statute. The Court did say that the underlying policies of PACA (giving food sellers a lien on unpaid products) provided additional support for its attorney fees determination. So, how much of an impact the Federal PACA statute had on the court’srulingisunclear.So,theopenquestionis if PACA didn’t apply, would the court still have awarded fees? The answer is not crystal clear, butitseemstobe“yes.”ButifIrepresentabuyer in a state law breach of contract suit (where no Federal statute is involved) who’s sued for contract damages plus the seller’s attorney feesbasedoninvoice(notcontract)language,I would distinguish such a case from VLM on the basis that the VLM Court considered the PACA statute as an additional basis for its fee award to the seller. Attorney fees provision in invoice binding on buyer (N.D. Illinois 2013) Continued from page 1 You’ve got one shot. Make it count. the difference in your business. 800-252-8908 217-747-1437 Call Nancy to find out how an ad in an ISBA newsletter can make
  3. 3. 3 December 2013, Vol. 58, No. 3| Commercial Banking, Collections & Bankruptcy Law moved for summary judgment. The bank supported its summary judgment motion with a bank officer’s affidavit who testified that she reviewed the bank’s books and re- cords of the mortgage holders, reviewed the borrowers’paymenthistoryandalsocertified a payment history attached to the affidavit. Land, ¶ 5. The trial court granted the bank’s motion awarding it money damages of over $100,000 and a judgment of foreclosure. Land, ¶ 6. Defendant appealed. Result: Trial Court affirmed. The bank’s supporting affidavit meets the requirements of SCR 236. Reasoning: The defendant’s chief argu- ment on appeal was that the bank officer’s supporting affidavit was inadmissible hear- say since the underlying mortgage didn’t originate with the plaintiff and because the affidavit relied on a third party’s (another mortgage company) loan records. The Court rejected the argument and held that the af- fidavit met the requirements of SCR 236, which codifies the hearsay exception for business records (a link to the Rule’s text fol- lows this post). SCR 236 provides that any record of a monetary transaction is admissible as evi- dence of that transaction if the record is made in the regular course of business and the business’ regular practice was to make a record of a transaction at or near the time of the transaction. The philosophical underpin- ning of the rule is that business records exist to aid in the proper transaction of business and so records are “useless for that purpose unless accurate.” Because of this, the motive for accurate record-keeping is high while the motive to falsify records is low. Land, ¶ 13; Kimble v. Jorgenson Co., 358 Ill.App.3d 400 (2005). What’s more: lack of personal knowl- edge by the maker may affect the evidence’s weight, but not its admissibility. Land, ¶ 12; In reEstateofWeiland, 338 Ill.App.3d 585 (2003). And,“it makes no difference whether the re- cords are those of a party or of a third person authorized by the business to generate the record on the business’s behalf.” A party can establish the foundation of a business record through a records custodian or other person familiar with a business’s operations. Land, ¶ 13. Applying these rules, the Court found that plaintiff satisfied SCR 236 requirements where the affiant/bank officer testified (i) that she was familiar with the bank’s busi- ness records creation and maintenance prac- tices, (ii) that the records pertaining to the defendants were made at or near the time of the occurrences giving rise to the records, (iii) were made by individuals with personal knowledge of the information contained in the business record, and (iv) the records were kept in the regular course of the bank’s business. Land, ¶ 14; Also, see Healix Infusion Therapy, Inc. v. HHI Infusion Services, 2011 WL 291160, *1 (N.D.Ill. 2011)(court admits busi- ness records pursuant to FRE 803(6) where e-mail submissions are signed by a records custodian). Take-aways: Illinois litigants now have a slew of evidence rules – SCR 236, IRE 803(6), IRE 902(11) - at their disposal that streamline the process of getting business records into evidence at trial and eliminate many of the logistical and hearsay headaches that trial practice formerly entailed. The cumulative effect of the rules is that a party no longer has to worry about issuing trial subpoenas to unwilling or elusive witnesses. I’m curious why there’s no discussion in this case of IRE 803(6) or 902(11) – the latter of which sim- ply requires a records custodian to submit a sworn statement with the records to be ad- mitted at trial. Even so, the case cements the importance of knowing the rules for busi- ness record admissions at trial and on sum- mary judgment. A key holding of Land is that the business records relied on can be those of a third party; as long as the witness can testify to her familiarity with the records and can establish that the third party records were integral to the witness’s business. This obviously obviates the need to subpoena a third party to testify concerning the third- party records. ■ __________ Links: rules/Art_II/ArtII.htm#236 evidence/Evidence.htm (recommended viewing: Rule 803(6), 902(11) and 406 (habit evidence) Commercial Banking, Collections & Bankruptcy Law Published at least four times per year. Annual subscription rate for ISBA members: $25. To subscribe, visit or call 217-525-1760 Office Illinois Bar Center 424 S. Second Street Springfield, IL 62701 Phones: 217-525-1760 OR 800-252-8908 Editor Thomas P. Sandquist P.O. Box 219 120 W. State St. Rockford, IL 61105-0219 ASSOCIATE EDITOR Hon. Michael J. Chmiel Circuit Curt of McHenry County 2200 N. Seminary Ave. Woodstock, IL 60098 Managing Editor/ Production Katie Underwood Commercial Banking, Collections & Bankruptcy Law Section Council Kim M. Casey, Chair Samuel H. Levine, Vice Chair Cindy M. Johnson, Secretary Michael G. Cortina, Ex-Officio Keith E. Fruehling, Board Liaison Sandra A. Franco, CLE Coordinator Mary M. Grant, Staff Liaison Disclaimer:This newsletter is for subscribers’per- sonal use only; redistribution is prohibited. Copyright Illinois State Bar Association. Statements or expressions of opinion appearing herein are those of the authors and not necessarily those of the Association or Editors, and likewise the publication of any advertisement is not to be construed as an endorsement of the product or service offered unless it is specifically stated in the ad that there is such approval or endorsement. Articles are prepared as an educational service to members of ISBA.They should not be relied upon as a substitute for individual legal research. The articles in this newsletter are not intended to be used and may not be relied on for penalty avoidance. Postmaster: Please send address changes to the Illinois State Bar Association, 424 S. 2nd St., Springfield, IL 62701-1779. Paul M. Bach Robert T. Bruegge Kent A. Gaertner Robert Handley James S. Harkness Elmer C. Hawkins James P. Kelly Michael J. Kelly Richard D. Larson Nathan B. Lollis Thomas M. Lombardo Robert G. Markoff Junko Minami John N. Oest Paul A. Osborn J. Matthew Pfeiffer Jamie J. Swenson Cassel Lawrence O. Taliana Michael L. Weissman David L. Wentworth II Adam J. Wilde Illinois business records: Getting them in at trial Continued from page 1
  4. 4. 4 December 2013, Vol. 58, No. 3| Commercial Banking, Collections & Bankruptcy Law C ode Section 2-1402 and Supreme Court Rule 277 work in tandem to govern the mechanics and scope of post-judgment or “supplementary” pro- ceedings under Illinois law. One particularly powerful creditor enforcement tool is the Ci- tation to Discover Assets to a Third Party or “third-party citation.” 735 ILCS 5/2-1402(a), (b); SCR 277(a), (d). It allows a judgment creditor (the party that obtains a money judgment) to serve a citation on a third-par- ty (usually a bank) that holds property of the judgment debtor (whom the judgment is entered against) and essentially lien or freeze that property until the court orders the property released. See 735 ILCS 5/2- 1402(f)(1).The third-party citation form used in Cook County (see link below) prohibits the citation respondent from allowing any trans- fer or other disposition of debtor’s property pending further order of court or termi- nation of the citation. When a bank is the third-party citation respondent, the creditor serves the citation upon the bank (either by personal service or certified mail) and upon receipt of the citation, the bank must freeze the debtor’s account until the court enters an order dismissing the citation or releasing the account. What’s simultaneously enticing (to a creditor) and sinister (to a debtor) about third-party citation practice is that the credi- tor doesn’t have to notify the debtor that he’s issued and served a third-party citation until 3 business days have passed. 735 ILCS 5/2-1402(b). This makes it next to impossible for a debtor to deplete his bank account(s) and hide funds – something which could easily happen if he caught wind of a credi- tor’s attempts to seize his accounts. My ex- perience is that few things bring a business debtor to its knees (and to the settlement table) quicker than a creditor placing a hold on the debtor’s bank accounts via a citation. Allofasudden,thevitriolicdebtorwholoved calling you and your creditor client unprint- able names, is reduced to begging and now wants to be your best friend. “I’m sorry!” I didn’t mean it!” ”Please! I can explain!” I try not to too gleefully watch the groveling display. (smile emoticon). Mendezv.RepublicBank,2013WL3821532 (7th Cir. 2013), a three-weeks old Seventh Circuit case, examines whether a bank that unfreezes the wrong bank accounts (and al- lows a judgment debtor to transfer hundreds of thousands of dollars) can be liable to the judgment creditor for violating a citation’s restraining provisions. While the court sym- pathized with the plaintiff creditor—who could have had its entire judgment satisfied, and then some—the Court affirmed the trial court’s finding that the bank was not liable to the plaintiff. Facts: plaintiff obtained a money judg- ment of nearly $400,000 in an employment discrimination case against the corporate defendants and embarked on a multi-year post-judgment “odyssey” to enforce the judgment, issuing over 50 citations to vari- ous banks where plaintiff believed defen- dants had accounts. Defendant Republic Bank alone froze 22 separate accounts based on plaintiff’s citation blitz. After several of the banks moved to quash various citations, the district court judge entered an order requir- ing that all bank accounts except for three (3) specified accounts be unfrozen. Mendez, at * 2. In response, defendant bank released from the citation two of the debtors’ accounts which totalled over $700,000 – all of which were dissipated by the debtors over a four- month period. Id. at * 3. After the case was transferred to another judge and plaintiff found out that two of de- fendants’ accounts were unfrozen, plaintiff immediately moved to refreeze the accounts and to hold the bank liable for allowing the release of defendants’ funds in violation of Code Section 2-1402(f)(1) – which provides for a citation respondent’s liability where it improperly releases funds subject to a cita- tion lien. Id. at *3; 735 ILCS 5/2-1402(f)(1).The District Judge, while originally siding with plaintiff, reversed herself and found the bank not liable. The reason: the prior judge’s order requiring the bank to unfreeze accounts was ambiguous “at best” and the bank’s actions were a reasonable response to and interpre- tation of that order. Mendez, at *4. The Seventh Circuit affirmed, noting that the prior judge’s order unfreezing certain ac- counts was indeed poorly drafted and the defendant bank followed the most reason- able interpretation of the order. Id. at * 5. While the Court acknowledged that under Illinois law, a citation respondent can be li- able for any transfer that violates a citation’s restraining provisions (regardless of whether there is intent or contempt), the bank’s ac- tions were reasonable in light of the order’s text: “All we can reasonably expect of third- party citation respondents is that they fol- low the most reasonable interpretation of a court’s order.”Mendez, at * 11. Take-away: In my experience, from a creditor’s standpoint, attaching a corporate debtor’s bank account via a third-party cita- tion is often my only real chance of collecting anything on a judgment. Any real estate is usually mortgaged to the hilt, and the cor- porate debtor often lacks sufficient accounts receivable, inventory or personal property to meaningfully make a dent in the judgment amount. Plus the costs and bonding require- ments entailed in levying on a debtor’s per- sonal property (i.e., car, boat, jewelry, elec- tronics,stocks,etc.)areoftencost-prohibitive. Consequently, hyper-precision in drafting citation orders is critical in post-judgment enforcement proceedings. If the order is not drafted by the parties (i.e. it’s prepared by the court) and its text is unclear, it is incumbent on a party to file a motion seeking clarifica- tion of the order.The case also illustrates that under Illinois supplementary proceedings law, a creditor does not have to prove a cita- tion respondent’s willful or spiteful conduct to hold the respondent liable for wrongfully transferring a debtor’s assets. __________ Links: asp?DocName=073500050K2-1402 rules/Art_II/ArtII.htm#277 CCM0124_EXAMPLE.pdf Defendant bank not liable for permitting judgment debtor to transfer over $700,000 from accounts By Paul B. Porvaznik
  5. 5. 5 Commercial Banking, Collections & Bankruptcy Law | December 2013, Vol. 58, No. 3 O n February 11, 2013, House Bill 3636 was signed into law by Governor Quinn, immediately modifying the Mechanics Lien Act in response to the Illinois Supreme Court’s decision in LaSalle Bank Na- tional Association v. Cypress Creek I, LP, 242 Ill. 2d 231 (2011). This article provides a real- world example of exactly how these changes to the Act affect a commercial real estate foreclosure with post-mortgage mechanics liens. Under Cypress Creek, which HB 3636 es- sentially reversed, the Foreclosing Lender stood in the shoes of any and all contractors who were paid, either from loan proceeds or from the Borrower’s personal funds. Assume there was a $9,000,000 mortgage loan, and the Property was worth $8,000,000 when the loan was made. Also assume that $1,000,000 from the loan paid for improvements, but that the Borrower obtained another $1,000,000 in improvements which were not paid for, resulting in two mechanics liens for $500,000 each. Finally, assume the Property only sold for $5,000,000 at the foreclosure sale. If the Court agreed that the Property was worth $8,000,000 before the improvements were made, and that $2,000,000 in improve- ments took place, then the Court created “two funds”totaling $10,000,000.The Lender was entitled to 100% of the $8,000,000 fund attributable to the value of the Land before the improvements. Under Cypress Creek, the Lender was also entitled to 50% of the $2,000,000 fund attributable to the improve- ments, since the loan proceeds and the owner paid for 50% of the improvements. The other two lien claimants each were en- titled to 25% of the fund attributable to the improvements. The $8,000,000 fund was 80% of the total improved value of the land, and the $2,000,000 fund was 20% of the total im- proved value of the land. The Court would applythis80/20ratiotothesaleprice,anddi- vide the proceeds accordingly. Under Cypress Creek, the land value fund would be 80% of the sale proceeds, or $4,000,000, which the Lender was entitled to. The improvements fund would be 20% of the sale proceeds, or $1,000,000, of which the Lender was entitled to50%,or$500,000.Thelienclaimantswould each receive 25% of the improvements fund, or $250,000 each. HB 3636 reversed the foregoing appor- tionment formula. If we assumed the ex- act same fact pattern, but applied HB 3636 instead of Cypress Creek, the Lender is not entitled to any of the fund attributed to the improvements.Worse, the two lien claimants actually benefit from the improvements paid for by the Lender or the owner. In our hypothetical, the Lender still re- covers the land value pegged at 80% of the sale proceeds under HB 3636. However, the Lender is not allowed to participate in the improvements fund. Instead, the entire $1,000,000 improvements fund is divided up by all the mechanics lien claimants. If there are only two lien claimants, each having im- proved the land by $500,000, and if the total improvements are $2,000,000, the lien claim- ants will each be entitled to 50% of the im- provements fund. Since the $5,000,000 sale price left $1,000,000 in the improvements fund, each lien claimant now recovers their full $500,000. (Note that, in the unlikely case where this new formula resulted in the lien claimants recovering more than they actu- ally were entitled to under their liens, which is possible where an owner or lender funds improvements and only minimal mechan- ics liens are recorded in comparison, the re- mainder of the improvements fund should shift back to the Lender.) Inourfactpattern,thenewlawonlyallows the Lender to recover a total of $4,000,000. But under Cypress Creek, the Lender would have recovered $4,500,000. In enacting HB 3636, the Legislature and Governor Quinn decided to prioritize con- tractors over lenders, even where lenders or owners paid for some of the improvements. Despite this change in the law, the Lender might have one way to reduce its potential losses. If a Lender settles a mechanics lien claim during a foreclosure action, it should insist on an assignment of that lien, not a re- lease. This way, the Lender could attempt to stand in the shoes of the settling lien claim- ant as an assignee. Unfortunately, the only way to prevent the new law from adversely impacting a Lender altogether would be to have a bor- rower or escrow agent refuse to pay any contractor unless they first filed a mechanics lien, requested payment, and assigned the lien to the Lender upon payment. This is not, of course, a reasonably workable solution in real-world situations, and could be deemed an improper end-run around HB 3636. ■ __________ Tom Lombardo is the manager of the litigation department at Ginsberg Jacobs LLC, focusing on creditor’s rights, finance and real estate matters. The aftermath of Cypress Creek—How newly-enacted HB 3636 affects commercial mortgage lenders By Thomas M. Lombardo It’s Campaign Season for the 2014 Election Run for ISBA Office— Positions Available: • 3rd VP • BOG: • Cook (3) • Under 37 Cook (1) • Under 37 Downstate (1) • Assembly: • Cook (22) See the Notice of ISBA Election and get your Candidate Packet on the Web at leadership. Filing of Petitions begins on January 2, 2014 and ends on January 31, 2014
  6. 6. 6 Commercial Banking, Collections & Bankruptcy Law | December 2013, Vol. 58, No. 3 Upcoming CLE programs To register, go to or call the ISBA registrar at 800-252-8908 or 217-525-1760. January Friday, 1/3/14- Teleseminar—Health Care Reform in 2014: What Transactional Lawyers Need to Know. Presented by the Il- linois State Bar Association. 12-1. Tuesday, 1/7/14- Webinar—Introduc- tion to Fastcase Legal Research. Presented by the Illinois State Bar Association – Compli- mentary to ISBA Members Only. 4:00 Eastern. Tuesday, 1/7/14- Teleseminar—Estate Planning in 2014: A Look Forward. Presented by the Illinois State Bar Association. 12-1. Thursday, 1/9/14- Webinar—Advanced Tips to Fastcase Legal Research. Presented by the Illinois State Bar Association – Compli- mentary to ISBA Members Only. 4:00 Eastern. Thursday, 1/9/14- Live Studio Web- cast—2014 Traffic Case Law & Legislative Update-Changes which Affect Your Practice & Clients. Presented by the ISBA Traffic Laws & Courts Section. 12-1. Thursday, 1/9/14- Teleseminar—2014 Nonprofit Law/Exempt Organizations Up- date. Presented by the Illinois State Bar As- sociation. 12-1. Friday, 1/10/14-Teleseminar—Attorney Ethics and Elder Abuse. Presented by the Il- linois State Bar Association. 12-1. Monday, 1/13-Friday, 1/17/13 - Chica- go, ISBA Regional Office—40 Hour Media- tion/Arbitration Training. Presented by the Illinois State Bar Association. 8:30-5:45 daily. Monday, 1/13/14- Teleseminar—2013 Americans With Disabilities Act Update (Live replay from 10/22/13). Presented by the Illi- nois State Bar Association. 12-1. Tuesday, 1/14/14- Teleseminar—BYOD: Bring Your Own Device to Work- Employ- ment Law Issues in theWorkplace. Presented by the Illinois State Bar Association. 12-1. Wednesday, 1/15/14- Webinar—Bool- ean (Keyword) Searches on Fastcase. Pre- sented by the Illinois State Bar Association – Complimentary to ISBA Members Only. 4:00 Eastern. Wednesday, 1/15/14- Teleseminar— Planning with Family Limited Partner- ships/Family LLCS, Part 1 (Live replay from 10/15/13). Presented by the Illinois State Bar Association. 12-1. Thursday, 1/16/14- Teleseminar—Plan- ning with Family Limited Partnerships/Fam- ily LLCS, Part 1 (Live replay from 10/15/13). Presented by the Illinois State Bar Associa- tion. 12-1. Tuesday, 1/21/14- Teleseminar—Pierc- ing the Entity Veil: Individual Liability for Business Acts. Presented by the Illinois State Bar Association. 12-1. Wednesday, 1/22/14- Teleseminar— Fixing Trusts: Techniques to Alter a Trust When Circumstances Have Changed. Pre- sented by the Illinois State Bar Association. 12-1. Thursday, 1/23/14- Teleseminar— Drafting Guaranties in Real Estate Transac- tions. Presented by the Illinois State Bar As- sociation. 12-1. Tuesday, 1/28/14- Teleseminar—Buy- outs in Closely Held Companies- Triggers, Methods, Valuation & Finance. Presented by the Illinois State Bar Association. 12-1. Thursday, 1/30/14- Teleseminar—Es- tate Planning for Personal Residences. Pre- sented by the Illinois State Bar Association. 12-1. Friday, 1/31/14-Teleseminar—Attorney Ethics and Digital Communications. Present- ed by the Illinois State Bar Association. 12-1. February Wednesday 2/5/14- Webinar—Intro- duction to Fastcase Legal Research. Pre- sented by the Illinois State Bar Association – ComplimentarytoISBAMembersOnly.12:00 Eastern. Thursday, 2/6/14- Teleseminar—Fund- ing Unfunded Testamentary Trusts in Estate Planning. Presented by the Illinois State Bar Association. 12-1. Friday, 2/7/14- Teleseminar—2014 Re- taliation in Employment Law Update. Pre- sented by the Illinois State Bar Association. 12-1. Friday, 2/7/14- Webinar—Advanced Tips to Fastcase Legal Research. Presented by the Illinois State Bar Association – Compli- mentary to ISBA Members Only. 12:00 East- ern. Friday, 2/7/14- Bloomington-Normal, Marriott Hotel and Conference Center— Hot Topics in Agricultural Law- 2014. Pre- sented by the ISBA Agricultural Law Section. All Day. Friday, 2/7/14- Chicago, ISBA Regional Office—2014 Federal Tax Conference. Pre- sented by the ISBA Federal Taxation Section All Day. Monday, 2/10/14- Teleseminar—Treat- ment of Trusts in Marital Separation (Live re- play from 11/5/13). Presented by the Illinois State Bar Association. 12-1. Tuesday, 2/11/14- Teleseminar—Suc- cessor Liability in Business Transaction: The Risk of Selling Assets but Retaining Liability. Presented by the Illinois State Bar Associa- tion. 12-1. Wednesday, 2/12/14- Teleseminar— Small Commercial Leases: Negotiating and DraftingIssues.PresentedbytheIllinoisState Bar Association. 12-1. Wednesday, 2/12/14- Webinar—Bool- ean (Keyword) Searches on Fastcase. Pre- sented by the Illinois State Bar Association – ComplimentarytoISBAMembers Only.12:00 Eastern. Wednesday,2/12/14-Chicago,ISBARe- gional Office—Tort Law Back to Basics. Pre- sented by the ISBATort Law Section. All Day. Monday, 2/17/14- Chicago, ISBA Re- gional Office—Advanced Workers’ Com- pensation. Presented by the ISBA Workers’ Compensation Section. 9-4:30. ■
  7. 7. 7 December 2013, Vol. 58, No. 3| Commercial Banking, Collections & Bankruptcy Law The new Guide to Illinois Statutes of Limitations and Repose is here! It contains Illinois civil statutes of limitations and repose (with amendments) enacted through September 15, 2013. The Guide con- cisely brings together provisions otherwise scattered throughout the Code of Civil Procedure and other chapters of the Illinois Compiled Statutes. It also includes summaries of cases interpreting the statutes that were decided and released on or before September 15, 2013. Designed as a quick reference guide for practicing attorneys, it pro- vides comprehensive coverage of the deadlines you can’t afford to miss. The Guide includes a handy index organized by act, code, and subject, and also includes a complete table of cases. Written by Hon. Adrienne W. Albrecht and Hon. Gordon L. Lustfeldt. Guide to Illinois STATUTES of LIMITATIONS and REPOSE 2013 Edition Illinois has a history of some pretty good lawyers. We’re out to keep it that way. Order the new guide at or by calling Janice at 800-252-8908 or by emailing Janice at GUIDE TO ILLINOIS STATUTES OF LIMITATIONS AND REPOSE 2013 EDITION $35 Member/$50 Non-Member (includes tax and shipping) Need it NOW? Also available as one of ISBA’s FastBooks. View or download a pdf immediately using a major credit card at the URL below. FastBook price: Guide to Illinois STATUTES of LIMITATIONS and REPOSE - 2013 Edition $32.50 Member/$47.50 Non-Member A “MUST HAVE” for civil practitioners Don’t Miss This Quick Reference Guide of Deadlines and Court Interpretations of Illinois Statutes!
  8. 8. Commercial Banking, Collections & Bankruptcy Law Illinois Bar Center Springfield, Illinois 62701-1779 December 2013 Vol. 58 No. 3 Non-Profit Org. U.S. POSTAGE PAID Springfield, Ill. Permit No. 820 Mentors needed for ISBA Lawyer-to-Lawyer Mentoring Program By Peter L. Rotskoff H owmanyofyourememberthosefirst few weeks of your first job when you realized how little you actually knew about practicing law? Some of us were lucky enough to have a mentor who guided us through those turbulent times. Those men- tors provided practical training and advice that we didn’t get in law school. They also helped to guide us through difficult issues and ethical dilemmas. Today, many law schools are doing a bet- terjobofteachingpracticalskills.Thenewlaw school at Indiana Tech in Ft. Wayne, Indiana, for example, has a strong emphasis on prac- tice skills. The Dean, Peter Alexander, a mem- ber of the ISBA Standing Committee on Legal Education, Admission and Competence, has helped to develop a curriculum that empha- sizes clinical training and practical legal skills. In addition, each student has a lawyer or judge mentor throughout law school. Despite these efforts, many new gradu- ates need mentors, particularly those who choose to go into solo practice. In 2011, the Illinois Supreme Court’s Commission on Pro- fessionalism launched the Lawyer-to-Lawyer mentoring program. By the end of 2012, 61 sponsoring organizations (including the ISBA) were involved and over 450 mentor- new lawyer pairs had been established. Additionally, Supreme Court Rule 795 was amended to provide that mentors and men- tees who complete the program receive 6 hours of CLE credit. The ISBA’s mentoring program follows the Lawyer-to-Lawyer template established by the Commission on Professionalism. It is a one-year plan that includes at least eight face-to-face meetings and allows the men- tor and mentee to choose discussion topics from a broad range of issues including the development of practical skills, time and law office management issues, legal ethics and professionalism. Presently the number of mentees who have signed up for the ISBA’s mentoring pro- gram far exceeds the number of mentors. Please consider making the commitment to participate in the program as a mentor. Not only will you be contributing to the profes- sion, but a recent survey conducted by the Commission on Professionalism showed that over 90% of the mentors believed that the experience benefitted them professionally as well. A mentor application is available on the ISBA’s Web site at < mentoring>. A required orientation for men- tors and mentees is scheduled for 12:00 p.m., January 29, 2014. EDITOR’SNOTE:Forthepastfewyears,Rich- ard Larson of Sycamore, who serves a Mem- ber of the Commercial Banking, Collections, and Bankruptcy Law Section Council, has also served as its Mentoring Liaison. Mentoring is- sues in commercial banking, collections, and bankruptcylawcanbeaddressedtohimatlar- ■ __________ Peter L. Rotskoff is Chief of Litigation and Pro- fessional Education for the ARDC in Springfield. He is a past Chair of the ISBA’s Standing Committee on Mentoring.