IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION

PNC BANK, NATIONAL ASSOCIATION, )

successor to National City Bank )

of the Midwest, )

)

Plaintiff, )

) Case No. 12 CV 03701

v. ) 

) Assigned Judge: 

MAGAS REAL ESTATE, LLC, ) Honorable John F. Grady

PETER MELLOS, JOANNE MELLOS, )

PETER MELLOS, as trustee of the ) Magistrate Judge:

PETE G. MELLOS LIVING TRUST ) Honorable Geraldine Soat Brown

DATED APRIL 14, 2005, JOANNE )

MELLOS, as trustee of the JOANNE )

MELLOS LIVING TRUST, DATED APRIL )

14, 2005 and SHMENERD, INC., )

)

Defendants. )

MOTION FOR ENTRY OF EX PARTE JUDGMENT BY CONFESSION

NOW COMES the plaintiff, PNC Bank, National Association,

successor to National City Bank of the Midwest (“PNC Bank” or

“Plaintiff), by and through its attorneys, Thomas J. Dillon, Wendy

Kaleta Skrobin and McFadden & Dillon, P.C. and for its Motion for

Entry of Ex Parte Judgment by Confession states as follows:

1. The above-captioned cause was filed on May 14, 2012 and

is presently pending before this Court. 

2. Plaintiff asserts in its Complaint (i) a claim against

the defendant, Magas Real Estate, LLC (“Magas”), for breach of

contract arising out of a promissory note executed by the

defendant, Magas, in favor of plaintiff dated June 21, 2006 in the

original principal amount of $990,000.00 (the “Note”) (a true and

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correct copy of the Note is attached to the Complaint as Exhibit B

and incorporated herein by reference), (ii) a claim against the

defendant, Peter Mellos (“Mr. Mellos”), for breach of contract

arising out of a Commercial Guaranty executed by Mr. Mellos in

favor of Plaintiff dated June 21, 2006 (a true and correct copy of

the Mr. Mellos Guaranty is attached to the Complaint as Exhibit C

and incorporated herein by reference), (iii) a claim against the

defendant, Joanne Mellos (“Ms. Mellos”), for breach of contract

arising out of a Commercial Guaranty executed by Ms. Mellos in

favor of Plaintiff dated June 21, 2006 (a true and correct copy of

the Ms. Mellos Guaranty is attached to the Complaint as Exhibit D

and incorporated herein by reference), (iv) a claim against the

defendant, Peter Mellos, as Trustee of the Pete G. Mellos Living

Trust dated April 14, 2005 (the “Mr. Mellos Trust”), for breach of

contract arising out of a Commercial Guaranty executed by Mr.

Mellos, as Trustee of the Mr. Mellos Trust, in favor of Plaintiff

dated June 21, 2006 (a true and correct copy of the Mr. Mellos

Trust Guaranty is attached to the Complaint as Exhibit E and

incorporated herein by reference), (v) a claim against the

defendant, Joanne Mellos, as Trustee of the Joanne Mellos Living

Trust, dated April 14, 2005 (the “Ms. Mellos Trust”), for breach of

contract arising out of a Commercial Guaranty executed by Ms.

Mellos, as Trustee of the Ms. Mellos Trust, in favor of Plaintiff

dated June 21, 2006 (a true and correct copy of the Ms. Mellos

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Guaranty is attached to the Complaint as Exhibit F and incorporated

herein by reference) and (vi) a claim against the defendant,

Shmenerd, Inc. (“Shmenerd”), for breach of contract arising out of

a Commercial Guaranty executed by Mr. Mellos, as President and

authorized representative of Shmenerd, in favor of Plaintiff dated

June 21, 2006 (a true and correct copy of the Shmenerd Guaranty is

attached to the Complaint as Exhibit G and incorporated herein by

reference). (Magas, Mr. Mellos, Ms. Mellos, Mr. Mellos Trust, Ms.

Mellos Trust and Shmenerd will collectively be referred to, where

appropriate, as the “Defendants”).

3. 735 ILCS 5/2-1301(c) provides, in pertinent part:

“(c)...any person for a debt bona fide due may confess

judgment by himself or herself or attorney duly

authorized, without process. The application to confess

judgment shall be made in the county in which the note or

obligation was executed...[a] judgment entered by any

court in any county other than those specified herein has

no force or validity, anything in the power to confess to

the contrary notwithstanding.”

735 ILCS 5/2-1301(c)(West 2009).

4. The Note expressly provides at page 2 thereof as follows:

“CONFESSION OF JUDGMENT. Borrower hereby irrevocably

authorizes and empowers any attorney-at-law to appear in

any court of record and to confess judgment against

Borrower for the unpaid amount of this Note as evidenced

by an affidavit signed by an officer of Lender setting

forth the amount then due, attorneys’ fees plus costs of

suit, and to release all errors, and waive all rights of

appeal. If a copy of this Note, verified by an

affidavit, shall have been filed in the proceeding, it

will not be necessary to file the original as a warrant

of attorney. Borrower waives the right to any stay of

execution and the benefit of all exemption laws now or

hereafter in effect. No single exercise of the foregoing

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warrant and power to confess judgment will be deemed to

exhaust the power, whether or not any such exercise shall

be held by any court to be invalid, voidable or void; but

the power will continue undiminished and may be exercised

from time to time as Lender may elect until all amounts

owing on this Note have been paid in full. Borrower

hereby waives and releases any and all claims or causes

of action which Borrower might have against any attorney

acting under the terms of authority which Borrower has

granted herein arising out of or connected with the

confession of judgment hereunder.”

Exhibit B attached to the Complaint, Note, Page 2.

5. Each of the Commercial Guaranties executed by the

Guarantors provides at page 2 as follows:

“CONFESSION OF JUDGMENT. Guarantor hereby irrevocably

authorizes and empowers any attorney-at-law to appear in

any court of record and to confess judgment against

Guarantor for the unpaid amount of this Guaranty as

evidenced by an affidavit signed by an officer of Lender

setting forth the amount then due, attorneys’ fees plus

costs of suit, and to release all errors, and waive all

rights of appeal. If a copy of this Guaranty, verified

by an affidavit, shall have been filed in the proceeding,

it will not be necessary to file the original as a

warrant of attorney. Guarantor waives the right to any

stay of execution and the benefit of all exemption laws

now or hereafter in effect. No single exercise of the

foregoing warrant and power to confess judgment will be

deemed to exhaust the power, whether or not any such

exercise shall be held by any court to be invalid,

voidable or void; but the power will continue

undiminished and may be exercised from time to time as

Lender may elect until all amounts owing on this Guaranty

have been paid in full. ”

Exhibits C-G attached to the Complaint, Commercial Guaranties,

Page 2.

6. Plaintiff submits herewith as Exhibit A the Affidavit of

Scott Neiderheide, an Assistant Vice President of PNC Bank

verifying the Note and the Guaranties and setting forth the amounts

due under the Note and the Guaranties.

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7. Plaintiff also submits herewith as Exhibit B a Confession

executed by Timothy J. Somen, a licensed Illinois attorney, on

behalf of Defendants confessing Judgment against Defendants

pursuant to the express provision of the Note and the Guaranties

authorizing same.

WHEREFORE, plaintiff, PNC Bank, National Association,

successor to National City Bank of the Midwest, respectfully

requests that this Honorable Court pursuant to the express

confession of judgment provision of the Note, the Guaranties and

the Confession submitted herewith (i) enter judgment by confession

in favor of plaintiff and against the defendants, Magas Real

Estate, LLC, Peter Mellos, Joanne Mellos, Peter Mellos, as Trustee

of the Pete G. Mellos Living Trust dated April 14, 2005, Joanne

Mellos, as Trustee of the Joanne Mellos Living Trust, dated April

14, 2005 and Shmenerd, Inc., each individually and jointly and

severally, as requested in the Complaint and (ii) grant such

further and additional relief as this Court may deem just and

proper.

Respectfully submitted,

/s/ Wendy Kaleta Skrobin 

One of the attorneys for

plaintiff, PNC Bank, National

Association, successor to

National City Bank of the

Midwest

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Thomas J. Dillon (ARDC#3124223)

t.dillon@mcdillaw.com

Wendy Kaleta Skrobin (ARDC#6226119)

w.skrobin@mcdillaw.com

McFadden & Dillon, P.C.

120 S. LaSalle Street, Suite 1335

Chicago, Illinois 60603

(312) 201-8300

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