on the first case five million one hundred and ninety thousand one hundred and four peoples national bank versus darnell good morning morning please the court and council my name is eric terlizzi i practice in salem i represent the defendant appellant bobby darnell jr here the plaintiff received a nearly quarter million dollar judgment against my client based on a count on a guarantee of a note to a mr thorson the bank loaned this money to mr thorson to buy an appliance store and unfortunately we're here because that loan went south in a few years obviously if it had been paid nobody would be here but it did not so the bank proceeded on count one to foreclose the mortgage it had taken on the business property and then count two on the guarantee that mr darnell signed the evidence is absolutely undisputed that on may 18th two thousand and twelve when the principal loan was made to mr thorson what the bank had in its file with respect to this guarantee was exhibit d to the complaint plaintiff's trial exhibit one this one page page five of five of this purported guarantee that has two paragraphs in it the evidence is also very open as to whether mr darnell even in fact had anything besides this page five of five mr baer the president of the bank there's some testimony oh we would have sent him the whole guarantee but that's the extent of the testimony there's no cover letter there's no anything else showing that mr darnell when he signed and faxed back actually the day before this loan was made this page five of five of this purported guarantee had anything else besides that mr terlizzi your client doesn't dispute signing this document he doesn't dispute that that's his signature you're correct your honor and is there any testimony that indicates he didn't know what was in the guarantee as the bank said they sent it to him i think there's substantial testimony mr darnell testified that he understood through discussions and the only actual personal discussions had occurred in february months before this loan and before any of the terms were really known or understood at all or whether this loan was even gonna be made but mr darnell testified for example he thought he was guaranteeing the building what the building appraised for one hundred and sixty to one hundred and seventy thousand they guarantee ended up being for three hundred and ten thousand which would have included the inventory operating capital and so on if that's but wasn't there testimony that the bank sent mr darnell the full packet that included the guarantee and that the wife faxed back the page with his signature the actual testimony your honor mr baer mr darnell's testimony is i don't remember i'm not denying that's my signature but i don't really remember what we got what i signed but that's my signature it's not a forgery case so he doesn't dispute that he might have gotten the full packet he might have and right and mr baer's testimony is well it would've been our practice to send it to him but again there was no cover letter saying which obviously should have been in the bank's file mr darnell here's the loan package this is what you're guaranteeing please sign page five of the guarantee and return all five pages in fact as we found out at trial but not before trial a month later the bank insisted on getting a full five page fully originally signed guarantee and that came into evidence as i think it was dated june 20th now the bank didn't sue on that in fact we didn't even know about that until trial because obviously a guarantee executed after the loan was made requires additional consideration the horse is already out of the barn the money's already been lent so they knew they couldn't sue on that they also that was more of a formality that wasn't a requirement that the bank that's what mr baer said yeah we just wanted to cross our t's and dot our i's and so right but mr darnell didn't dispute that did he the formality issue he didn't say that sign it yeah there is the part after the guarantee after the faxed page that you have the june one the june one let's call it the june guarantee or packet the june guarantee right that was more of a formality as you say dot your i's cross your t's there was no requirement that the bank do that well i don't know i mean if this is all i had in my loan file your honor and that's undisputed in this record that's more than crossing t's or dotting i's or formalities i mean i've represented a bank for forty years and if this was what i had to say that i've got a loan guarantee and that part is undisputed we've cited the testimony of mr baer at page twenty five twenty six of the transcript where he says yeah that's what we had when we made the loan and why that's particularly significant too is we have to remember that a guarantee is just is a contract like any other contract and what's the first day of contracts one hundred and one teach you a contract is a meeting of the minds which means you have to have agreed on the essential terms of what this contract is this gives a number of terms even if in fact he had the other four pages which we don't really know from this record but if he did have all it says is the principal amount three hundred and ten thousand now when you go into a bank or a finance company or a car dealer to get a loan what is the first question you ask what rate will you give me if that's not an essential term of a loan what is we don't know assuming that he had this entire guarantee on may 17th when he signed it and faxed it back we don't know what the interest rate was we don't know whether it was fixed or variable we don't know if it had a balloon payment absolutely nothing about it now if that's not an essential term and why that's so important is because that's the contract that's as important as the loan contract and maybe to illustrate that suppose we switched things around and a bank gave a loan a written loan commitment for three hundred and ten thousand and that's all it said and then the bank reneged on that and the customer sued for specific performance saying i want my loan you know i think the judge would laugh the customer out of court saying i'm not here to make a contract for you i'm here to enforce contracts you've already made what am i supposed to do pick an interest rate amortization all these other terms on the loan just out of thin air and really the guarantee is no different there is this record is silent that on may 18th when this loan was made that mr darnell knew any of those essential terms of this purported loan and that's why there is case law that says i mean there's the clear case law that says if you execute a guarantee after the loan there has to be additional consideration and that's just common sense there's also the case law that we've cited that says if you execute a guarantee before the loan was made the essential terms of the proposed loan have to be clear and disclosed and you have to agree to it otherwise there's not a meeting of the minds there's not a contract and the bank did not sue on a estoppel cause and say oh we detrimentally relied on this page five of five when we made the loan that you were gonna come through and cross t's and dot i's and send that guarantee they sued on a contract count and this is the contract they sued on so it was the bank's burden of proof so is that exhibit d is that what you're saying is one page was exhibit d no exhibit d to the complaint is the full five pages right but it's crystal clear in the testimony from mr baer himself that page five is all the bank had when they made this loan so my question to you is how did the parties get beyond the four corners of exhibit d how did they get all this oral evidence in about the making of the terms the meeting of the minds i mean exhibit d which is a us small business loan right document would have been complete in and of itself well i mean that presupposes that exhibit d which doesn't contain all the essential terms of the loan they supposedly guarantee is a contract does represent a meeting of the minds as i said it doesn't disclose anything so you filed some kind of affirmative defense on behalf of your client we did and one of the affirmative defenses was fraud in the execution based on the allegation that he had been told one that he was only gonna be guaranteeing one hundred and seventy thousand the value of the building and two that he explicitly made it known that he had to be he's a tobacco farmer down in tennessee and he's got an operating loan that came up in three years and it's undisputed that that was discussed of course mr baer says oh you know if things are okay in three years we'll let you off and in fact the loan was not in default in that three years but the bank didn't let him off because he didn't have enough money in his account apparently his business account for that are you saying your client took action with the bank to try to get off the note after three years there were yeah the record's clear that there were phone conversations where he requested that now the but i'm still perplexed on how you got to all of that i mean clearly your client even in his affirmative defenses acknowledged that he intended to make some loan he acknowledged that he understood that he had agreed in theory to guarantee a loan actually your honor if you read the record that affirmative defense was dismissed the trial judge took that evidence in the form of an offer of proof which evidence the one about one hundred and seventy thousand and about getting off in two or three years yes and i haven't looked at the notice of appeal in a while was that also part of your appeal then is the inappropriate dismissal of the affirmative defense i don't know that that's referenced in the notice of appeal your honor i wouldn't want to tell you it is and then be wrong okay okay i just didn't see it in the facts of the case but i was perplexed as to how all of this oral evidence came in when the bank well i could tell you i'm sued over the contract just a really good lawyer but that's not the truth it came in as an offer of proof okay thank you you're welcome but i guess i don't need to beat a dead horse that is our position in this appeal in that whether i guess what is is a bank to do when you get into a situation like this and your clients as well it could have i don't remember what is the standard of review for us is it against the manifest weight of the evidence or is it de novo well i think it's really more a question of the law your honor on the issue of whether this guarantee even if he had all five pages when he signed and faxed it back if that is an enforceable contract or not well if he had all five pages what would be deficient about it what's deficient is it doesn't reflect a meeting of the minds as to what he's guaranteeing because it does not contain the essential terms of this proposed loan that didn't even exist on the date he signed this that's undisputed but it was anticipated okay so if you could break that up let's assume hypothetically that he had the five pages that the bank sued on correct which terms were absolutely missing from the five pages the interest rate whether it was fixed variable balloon amortization none of those terms were in this guarantee in the full five pages of the guarantee the only thing he knew was that the proposed loan was going to go to his buddy joel thorson and thorson appliance llc and that the principal assuming he had these five pages was gonna be three hundred and ten thousand that's it that's why i say if that was a loan commitment from the bank that would not be an enforceable contract against the bank because the court would have to supply the interest rate the amortization all those terms that are absolutely necessary you cannot say those are not probably the most necessary the most crucial elements of a loan contract so again i mean if you had a note that just said three hundred and ten thousand and didn't contain an interest rate an amortization rate now you know maybe you could enforce it as a quantum meruit matter that you lent three hundred and ten thousand and the guy didn't pay it back but the court could not supply and say all right i'll finish your contract for you i'll pick a fair interest rate a nice amortization maybe we should make it balloon after five years or make it a variable rate fixed to prime the court could not do that the court's not in the business of making contracts the court's of the business of enforcing contracts but let me ask you a question sure the form that is used for the guarantee i'm assuming it's called sba form one hundred and forty eight so that comes straight from the government apparently there's nothing in that document where it specifically lists what the interest rate is or things such as that it references the promissory note which would have all of that information included in it so are they not referring back to that well and that works if you've got everybody at the table sitting down when the loan is executed and you pass the documents around and it's executed contemporaneously the guarantor can leave with a copy of the note i mean there's no or if they had sent and they had provided at trial you know a cover letter to mr darnell saying enclosed is the proposed guarantee attached to it is exhibit a the proposed note containing all the terms then you've got a contract you've got a meeting of the minds you know even if it's sent back before the loan is actually given because he knows all the essential terms this record and again the plaintiff's burden of proof not ours to defend we didn't have to put on one word of evidence so i don't think i really think we should have been entitled to a directed verdict based on the fact that they failed to prove even if they sent all five pages that he had well he obviously didn't have any idea of those other essential terms of this loan so and this you know we're not talking about a one thousand loan to buy a washing machine we're talking about a three hundred and ten thousand loan that now some seven years later even after sale of the security for ninety thousand we're talking about a quarter million dollar judgment a judgment that could put this man out of business this is not small claims stuff and for the bank at trial not even to be able to produce anything anything a cover letter anything to show that he was specifically informed of and knew the essential terms of this loan and agreed to guarantee it before this loan was made and that was their burden of proof and they failed we know why they didn't sue on the june two thousand and twelve guarantee that is properly executed that is all five pages that was after the loan was made so those terms were known cause they couldn't sue on that cause there was no additional consideration and that's hornbook law that a guarantee made after the loan requires additional consideration could be forbearance could be whatever but and this loan was only a month old there's no allegation that it was in default or there was any forbearance or anything in june so it's a case that looks simple on first glance oh he signed he owes but that's a shallow reading of this evidence and the law in this case and it's the bank's you know the bank this didn't have to happen the bank could have said you know we insist on a guarantor on this loan mr thorson you have your guarantor there at closing get all the documents signed and again we wouldn't be here because he wouldn't have a defense then so unless there are other questions that's our argument your honor thank you thank you you'll have a few minutes mr terlizzi am i pronouncing that right you are yeah okay thank you all right mr hoffman good morning good morning i'm going to steal a glass of water real quick take your time sir good morning your honors may it please the court i'm trying to lose my voice this morning i apologize mr terlizzi your honors i am to start out going to take what mr terlizzi referred to as the shallow view of the case and indicate that really what case boils down to is that mr darnell signed this sba unconditional guarantee not once but twice in this case may 17th he faxed back his signature page after which bo baer testified to at trial he had sent him in the normal course of these dealings sent him the entire unconditional guarantee all five pages down to him at his address in tennessee he said that's the normal way he would have done it they had spoken on the phone previously they had met previously they had multiple phone conversations i think page twenty of the record proceedings notes that they also had an inperson meeting i believe back in february before the may closing mr hoffman let me ask you a question that kind of was raised by justice boie this guarantee where was promissory note was it attached was there an exhibit where it was offered there is not evidence in the record that it was attached to the guarantee no your honor there's no evidence there's not evidence of that that i can recall from the record typically if a document refers to the note which this one did this sba form wouldn't you expect to see the note attached and wouldn't we be out of all this trouble if the note were there i don't believe that was required your honor why not it was part of the contract well the guarantee itself the sba form which mo baer testified that is the government mandated for this type of a loan this type of loan guarantee form and the bank i believe he stated cannot deviate from that form it lays out who the parties are it lays out the amount of indebtedness that is being guaranteed i think here it was three hundred and six thousand if i'm not mistaken and lays out the additional terms of the guarantee so i don't believe there's any indication that it was required to attach the note as it is our position the guarantee laid out the necessary terms for mr darnell to review that document which he had two opportunities to do after it was sent down to him and he faxed back his signature page i would note he admitted that it was his signature that faxed signature he admitted that it was generated from his home phone number in tennessee mr baer testified as well that prior to this whenever mr darnell filled out the sba guarantee application he also faxed up that application with his signature on it from that same phone number and mr darnell i believe just for full statement of what was the testimony i believe he indicated he didn't recall faxing it up or he is not the one that faxed up the may 17th signature page but his wife may very well have done so however as a matter of housekeeping and i think as justice cates referred to as dotting the i's crossing the t's earlier bo baer testified that after he that it was not required in the bank's eyes to close the loan to have an original signature on hand for this guarantee but it would be preferable for housekeeping purposes to quote unquote clean up the file i think were mr baer's words to have an original signature so after he didn't receive one which was his understanding and i may be mistaken but i think in the record mr baer testified that it was on his understanding in talking to mr darnell ahead of sending him the guarantee in one of these phone conversations perhaps that he was under the impression he was gonna be getting it in the mail subsequently and it did not arrive there was reference to possibly it was lost in the mail that's bo baer's testimony so in order to dot the i's and cross the t's he sends it back down to tennessee testified at trial that it was the identical document short of the may seventeen signature it had a blank signature spot and date spot and he did receive that back so mr darnell had two opportunities to review this document showing the amount of indebtedness showing what he was guaranteeing and executed it both times so you believe the record is clear that mr darnell indicated that the guarantee he received in june was the same one that he received in may i don't believe he testified to that your honor right i didn't think so i think bo baer testified to that that he sent the identical guarantee down right but mr darnell correct has no recollection of that i believe that's accurate yes your honor okay but mr baer again when we look at the sba form it doesn't have an interest rate obviously it does state the name of the borrower the guarantor the lender the date of the transaction loan number principal amount all of that yes your honor and does not require the promissory note to be attached that's correct your honor and i would add in terms of opposing counsel's argument that the interest rate was an essential term to be included in the guarantee there is no authority under illinois law cited in their brief i have not found authority stating you got to have the interest rate in the guarantee for it to be legally valid the only reference made in the briefs is to the us i believe it's us versus fitzgerald case out of the seventh circuit which i would note as i noted in our brief is the seventh circuit applying indiana law specifically and they do indicate that interest rate is an essential term along with the amount of indebtedness but we don't have an illinois authority on that i don't think it's required and again as has been noted a few times here this was an official small business administration form does not provide a space for inserting the interest rate and bo baer testified at trial that he could not deviate from the requirements of that form so we believe that the may seventeen signed guarantee that signature page was valid and enforceable as the trial court found as it was executed before closing and it's our position that the june 20th signature was part of the same transaction again was a housekeeping matter we dispute we completely disagree with the notion that additional consideration was required for that june 20th guarantee or that we somehow couldn't sue under that june 20th guarantee because it was subsequent to the may 18th closing this is arising out of the same transaction this you have a clear layout in the testimony of mr baer of the sequence of events that led to that june 20th signature and the entire document i believe coming up in the mail and not just the signature page this time it's out of the same transaction granted it's a little more than a month later but it was to tie up any loose ends bo baer testified he was comfortable moving forward on may 18th with the closing if he would have needed an original signature on that guarantee ahead of the may 18th or at the may 18th closing when all he had in his hand was the faxed signature he wouldn't have closed the loan and we're talking about a government backed loan here for a substantial amount of money it's not something anybody's gonna play around with or cut corners on and that wasn't done here we do cite in reference to the june twenty signature being contemporaneous to the may eighteen closing we cite the lds case out of the appellate court which found similarly a guarantee executed several days later i think six days later in that instance because of the facts and circumstances in that case didn't require additional consideration it arose out of that same underlying transaction granted we had a larger number of days here but i think the testimony was clear at trial as to why that was they gave it some time to see if they got the original signatures in and sent it back out i'm still bothered a bit by the note and i'll tell you why i understand this was an sba form that could not be altered but the court in striking the affirmative defenses made a docket entry on june 15th two thousand and seventeen that indicates that the terms of the guarantee are the same as the note it refers the court is referring to a note and the bank i think filed a motion to strike these affirmative defenses and i'm looking for the note did you attach the note to the affirmative defenses i mean to your motion to strike i don't recall where did the court come up with this note well your honor this was a two count complaint filed count one was a foreclosure action where the note certainly would have been attached as an exhibit i don't recall off the top of my head without consulting page by page in the record of whether the note was attached as an exhibit to count two which was enforcement of the guarantee but it was part of the complaint under consideration by the court certainly through the foreclosure so the note was i'm sorry your honor through the foreclosure you're right it was that that's correct your honor yes but i do apologize i don't recall off the top of my head whether it was an exhibit or attached in those earlier pleadings regarding striking the affirmative defenses whether the note was attached or not but certainly but it seems the court looked at the note in making its decision to strike the affirmative defenses because it specifically references the note and yet both counsel indicate the note was not the subject of the trial that's correct your honor but i would again reiterate that the guarantee itself included the amount of indebtedness included whose obligation it was that mr darnell was providing a guarantee for and the bank to whom it was being made and the additional terms that applied and i would note in terms of the issue of the alleged fraud which the court struck that affirmative defense i did your honor asked a question of opposing counsel about the notice of appeal i do not see reference to the affirmative defense as being stricken in the notice of appeal just to answer your question on that if i may thank you but on the fraud issue i believe your honor justice cates had talked about going outside the four corners of that agreement and i would note that within the four corners of that agreement we certainly take the position that you do not under the law go outside the four corners this is a contract i agree with mr terlizzi on that this is a binding contract and contract law applies we don't go beyond the four corners and within those four corners is the statement in all caps oral statements not binding and then it continues in regular font guarantor may not use an oral statement to contradict or alter the written terms of the note or this guarantee or to raise a defense to this guarantee that was noted i believe by the trial court when it struck the affirmative defense and we believe it's a vital term of the guarantee mr darnell had at his disposal to review i would also note we've cited a couple of cases in our brief on this issue northern trust case and the rose case rose came out of this district i would add are instructive on the issue the courts in those cases held that an alleged oral promise is not binding to establish fraud where the guarantor had an opportunity to review the written agreement and did in fact sign it the northern trust court had a good quote and that cited the rose case when it stated a party cannot close his eyes to the contents of a document and then claim that the other party committed fraud merely because it followed this contract i think that's exactly what we have here we have this loan that to use mr terlizzi's words went south and which nobody and the bank included wants to see happen when you enter into these transactions but now the individual who backed up that loan with a guarantee an unconditional sba guarantee now wants to try to get out of that obligation and is you know making these arguments to do so there was and i would agree with the discussion earlier why did we even get into the fraud testimony at trial whenever that was stricken as an affirmative defense and for whatever reason and i think council's correct it came through an offer of proof but there was ample testimony there for the court to take into consideration and judge the credibility of the witnesses i think testimony on that issue came from mr baer from mr thorson the borrower in this loan and from mr darnell and his wife about a meeting with bo baer back in february ahead of the may closing and statements that were made and mr baer did state that he often in these types of transactions gets that question can i be released you know so many years after the closing of the loan and he indicated that he gives his standard canned answer that we can certainly consider that you can apply for it make that request if the loan is in good standing all obligations are met and if the business this is a business loan is showing a positive cashflow and in good standing then that can be considered and i believe bo baer testified and i think it's noted in our brief that he does not recall mr darnell ever making that request subsequently and we have what was the this loan was an old loan in other words it had been going on a period of time about five years your honor yes and what interested me is the fact that mr darnell testified that after three years he was supposed to be released it seems counterintuitive that if you want to be released from a guarantee you don't know the terms i mean if you're seeking to be released and now you claim you didn't have a contract i'm not sure how that squares up but i would certainly concur with that your honor and i would further state that i don't believe there's testimony that and i do not believe going from memory that mr darnell testified that he did ask to be released subsequently there was also testimony presented i would note that within the first two years of the loan the alleged promise here that they are alleging is to be released after two years because and the reason given is because his farm operating loan was coming due in three years i believe if i'm not mistaken and so here we had testimony at trial from the bank that and i believe from mr thorson as well that within the first two years of this loan you know after the two thousand and twelve loan was made within the first two years he hadn't met all his obligations because he hadn't paid the property taxes on the mortgaged property so already just kind of extrapolating out or going in the hypothetical if it would have been requested that mr darnell be released he probably wouldn't have been because the loan wasn't in good standing but that's essentially neither here nor there another point i would make on the fraud issue as we note in our brief is the illinois credits agreement act which lays out that a credit agreement has to be in writing all of its terms must be in writing and that the parties cannot seek to enforce oral verbal terms to modify a written credit agreement and we cite the bank one springfield versus rossetti case i believe out of the fourth district that applied that act specifically to a guarantee like we have here it indicated that do you really think we need to do that in this case i don't think you need to even get to that point i think you don't have to you certainly don't have to why would we go beyond i'm sorry your honor why would we get to that point well just simply as an alternative theory if we're not gonna go beyond the four corners of the agreement and get into the alleged promises made orally by the bank and if we don't adhere to the term that i quoted earlier oral statements are not binding then simply as an alternative theory then i think it's barred by statute even to go down that road but i certainly submit that we don't have to get that far so what do you think our standard of review is do you think that we would interpret this contract de novo or do we look at the court's orders against the manifest weight of the evidence well certainly i think we look at the court's order its verdict after hearing the evidence and it would be a manifest weight of evidence standard i think we note that in our brief i do do agree that issues of law are to be reviewed de novo but i don't think you get beyond that here on those issues i think the court heard the testimony about how the guarantee came about the court heard testimony about the court has the black and white terms of that guarantee the court on the other issue that hasn't been touched upon about the sale itself and the judgment amount the court certainly had ample testimony and we believe that that standard would apply to it as the court was the trier of fact in this case simply touching on the sale issue certainly we believe there was ample evidence shown at trial that it was a fair and reasonable sale a fair and reasonable price the bank it was a properly noticed sale none of the grounds by which a confirmation of a foreclosure sale would be denied under the mortgage foreclosure law are present here we don't have fraud in the sale terms were not unconscionable simply mr darnell asserts in this appeal that the price was too low so therefore the deficiency judgment that he owes is too high but the bank didn't simply throw a dart at the dart board pick a number out of the air it had an appraisal commissioned about two months before the sale by kleeman and mr kleeman provided testimony via evidence deposition at trial and went into great detail not only about this appraisal from two thousand and seventeen i think november two thousand and seventeen before the january two thousand and eighteen sale about the comparable sales he used which is the preferred approach and about even a two thousand and twelve appraisal that was commissioned back when this loan was first formed and wasn't mr darnell present at the sale he was and in fact your honor he was a bidder on the sale this wasn't your typical and i do bank work just like mr terlizzi noted and this wasn't your typical foreclosure sale at the courthouse lobby where the only one showing up is the bank or the bank's attorney making a bid and that's it we had another bidder and it was darnell himself and the bank opened its bidding at eighty five of the appraised price i think jason russell from the bank testified to that as he was the bidder on behalf of peoples bank and so i think that was seventy six thousand five hundred and at the appraisal price was go ahead and finish thank you your honor the appraised price was ninety thousand after mr darnell upped the bidding after the initial bid then the bank bid ninety thousand and bought the property for ninety thousand we believe the evidence at trial supports that we ask the court affirm thank you so much thank you mr terlizzi counsel said that the bank could have sued on the june two thousand and twelve full guarantee but woulda coulda shoulda doesn't work in court they did not sue on it they in fact we didn't even know about it until trial so they sued on the may you didn't know about the june document the june guarantee when your client signed it well yeah i mean i mean you may not have known i didn't know he should have known about it he didn't remember a whole lot if you read your transcript about this i mean he was helping out a buddy he signed apparently once where he was told to sign and i mean that's pretty good help he's apparently a good friend i mean to commit yourself to that but they didn't they sued and they didn't sue on a quantum meruit theory they didn't sue on estoppel theory that he had to be estopped because it was detrimental reliance they sued on a contract and so the question this court has to answer is is that may guarantee a contract was there a meeting of the minds of the essential terms of this contract and i don't think it's a good defense for the bank to say the sba made me do it i mean the sba form is an sba form that i think probably anticipated it's gonna be signed contemporaneous with the loan and this issue never arises but if it's signed beforehand i mean there's no law that i know of federal law you're not gonna go to federal prison if you add a thing on there see note attached as exhibit a that is intended to be signed because when you sign the guarantee before the note the note doesn't exist i mean maybe darnell change his mind not even show up and go somewhere else get a better interest rate or something so you know there had to you don't have a contract without a meeting of the mind of the essential terms and yes fitzgerald is decided under indiana law and yes neither one of us has found a precise illinois case that deals with does a presigned guarantee have to disclose the interest rate but boy we could cite you twenty or thirty or one hundred illinois cases that say a contract you have to have a meeting of the minds on the essential terms whether it's real estate contract a loan contract whatever in order to affirm this decision i think this court has to be prepared to say in its opinion and this is simply a matter of law not manifest weight or any interpretation of the facts has to say that an interest rate is not an essential term of a loan a court can supply that whether it's between the original debtor and creditor or whether it's a guarantor it's not important it's not essential and you don't have to agree on that to have an enforceable contract i think that would be astounding do you think that such a brightline rule is advisable in a contract case to say that every contract or every guarantee must have an interest rate set forth or there can't possibly be a meeting of the minds well how can you have a loan without an agreement on the interest rate a meeting of the minds isn't that an essential term of every loan contract but a meeting of the minds is somewhat subjective isn't it and you want us to impose an objective test well you but i don't think it's subjective in this case i mean any more than like on a real estate contract you have to have a meeting of the minds on the description and on the price when it's payable i mean those essential terms that's not coming up with any new surprising case law but every contract you have to the question i guess the question of law is what are the essential terms in each particular contract and i don't think how you could conceivably say with a straight face that an interest rate and an amortization is not an essential term of a loan contract i mean again isn't that the first question any potential borrower asks what are you gonna charge me i want to shop the rate i'm gonna see if i can get a better rate over here if you're going to charge me five maybe i can get four from but this note in paragraph nine i'm sorry this guarantee i want to be very careful in paragraph 9h evidently says oral statements not binding guarantor may not use an oral statement to contradict or alter the written terms of the note or this guarantee and then it goes on or to raise a defense it seems to me that when you sign something like that there's at least a presumption or whatever that you read the note but your honor that presupposes that what you signed is a valid and binding contract and let's suppose the name of gavel banging drowns out speech was blank i'm sorry the name of what let's suppose the principal amount was blank the debtor was blank and he'd still sign it i mean he would sign it that clause would still be in there but would that be a contract well i guess we'll find out on another day but thank you mr terlizzi and you have to go beyond the four corners to look at the note to know you have to i mean that guarantee doesn't speak for itself thank you so you're asking the court reverse yes your honor thank you thank you mr terlizzi okay this matter five million one hundred and ninety thousand one hundred and four will be taken under advisement thank you counsel for your arguments