1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

YL CHICAGO FUND, LLC,

Plaintiff,

v.

5035 N. LINCOLN AVENUE, LLC;

5015 N. LINCOLN AVENUE, LLC;

5019 N. LINCOLN AVENUE, LLC;

5025 N. LINCOLN AVENUE, LLC;

5029 N. LINCOLN AVENUE, LLC;

ZIVKOVIC FAMILY HOLDINGS, 

LLC; and JOSEPH ZIVKOVIC,

Defendants.

No. 20-cv-3940

Judge Franklin U. Valderrama

MEMORANDUM OPINION AND ORDER

YL Chicago Fund, LLC (“Plaintiff”) filed an action for Confession of Judgment 

and Declaratory Relief against 5035 N. Lincoln Avenue, LLC (“Borrower”) and each 

of six Guarantors (5015 N. Lincoln Avenue, LLC; 5019 N. Lincoln Avenue, LLC; 5025 

N. Lincoln Avenue, LLC; 5029 N. Lincoln Avenue, LLC; Zivkovic Family Holdings, 

LLC; and Joseph Zivkovic) (collectively, “Defendants”) following Borrower’s default 

on a promissory note. On July 10, 2020, based on a confession of judgment provision 

included in the promissory note and the securing commercial guaranty agreements, 

the Court issued an Order of Judgment by Confession against Defendants and

awarded damages to Plaintiff in the amount of $2,742,307.00 plus late fees, attorneys’ 

fees, expenses, and other reasonable costs. R. 10, Judgment.1 Defendants now move 

1Citations to the docket are indicated by “R.” followed by the docket number and, where 

necessary, a page or paragraph citation.

Case: 1:20-cv-03940 Document #: 41 Filed: 12/07/20 Page 1 of 21 PageID #:681
2

to vacate the Court’s Judgment pursuant to Federal Rules of Civil Procedure 60(b)(4)

and 60(b)(6). R. 13, Mot. to Vacate. Defendants also move to strike a declaration filed 

as an exhibit to Plaintiff’s Sur-Reply in Opposition to the Motion to Vacate. R. 33, 

Mot. to Strike. For the reasons stated below, the Court denies Defendants’ Motion to 

Strike as moot and denies Defendants’ Motion to Vacate.

Background

On or about September 6, 2019, Borrower obtained a loan in the principal 

amount of $1.3 million from YL Chicago Fund, LLC (the “Loan”). R. 1, Compl. ¶ 15. 

The Loan was evidenced by a Secured Promissory Note between Borrower and 

Plaintiff, signed by Borrower’s representative and notarized as of September 5, 2019 

(the “Note”). Compl., Exh. 1, Note. The Note details the sum of the borrowed principal, 

includes a formula for calculating owed interest on the principal, and attaches a loan 

payment schedule. Paramount to this lawsuit, the Note also contains a confession of 

judgment clause, which, in the event of default, authorizes any attorney 

to confess judgment on behalf of Plaintiff for the unpaid Note amount. Specifically, 

the Note reads, in relevant part: 

FOR VALUE RECEIVED, the undersigned, 5035 N. Lincoln Avenue, 

LLC, an Illinois limited liability company (“Maker”), promises to pay to 

the order of YL Chicago Fund LLC, an Illinois limited liability company 

(“Holder”), the principal sum of 

One Million Three Hundred Thousand and No/100 Dollars 

($1,300,000.00) 

with interest from the date of this Note on the balance of principal 

remaining from time to time unpaid at the rate of the ninety three 

percent (93%) per annum, compounding monthly, from the date of this 

Note until paid, or the maximum amount allowed by applicable law, 

Case: 1:20-cv-03940 Document #: 41 Filed: 12/07/20 Page 2 of 21 PageID #:682
3

whichever is less, until the entire “Indebtedness” is paid in full. Interest 

shall be computed on the basis of a year of 360 days and the actual 

number of days elapsed. 

***

Maker will make payments pursuant to the payment schedule on 

Exhibit A attached hereto (each such payment a “Note Payment”) until 

the Indebtedness is paid in full. [...] 180 days after the date of the Note 

(“First Payment Due”); Note Payment amount due: $800,000.00 [...]. 

***

[I]f [...] default continues uncured for ten (10) days after notice 

specifying the default, shall at the election of the Holder cause the entire 

unpaid Indebtedness to become due and payable at once [...].

***

5. [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 OR 

MANAGER OF [PLAINTIFF] SETTING FORTH THE AMOUNT 

THEN DUE, ATTORNEY'S 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] WAIVE [SIC] THE RIGHT OF ANY STAY 

OF EXECUTION AND THE BENEFIT OF ALL EXEMPTION LAWS 

NOW OR HEREAFTER IN EFFECT. NO SINGLE EXERCISE OF THE 

FORGOING 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 FORM 

[SIC] TIME TO TIME AS [PLAINTIFF] 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 

Case: 1:20-cv-03940 Document #: 41 Filed: 12/07/20 Page 3 of 21 PageID #:683
4

ARISING OUT OF OR CONNECTED WITH THE CONFESSION OF 

JUDGMENT HEREUNDER. 

Note at 1–2, 4. 

Payment and performance of the Note was guaranteed pursuant to a Guaranty 

Agreement between Plaintiff and each of the six Guarantors (a “Guaranty” and 

collectively, the “Guarantees”). Compl., Exhs. 2–7, Guarantees. Under the 

Guarantees, each of the Guarantors unconditionally and irrevocably guaranteed full 

and punctual payment and satisfaction of the indebtedness of Borrower to Plaintiff 

for the Loan and all of Borrower’s obligations to Plaintiff under the Note and other 

loan documents. Id.; see also Compl., ¶ 17. The Guarantees each contained a 

confession of judgment provision identical to the confession of judgment provision 

included in the Note (copied above). See, e.g., Compl., Exh. 2 ¶ 23. The Loan was 

additionally secured by a Pledge Agreement dated as of September 6, 2019. Compl., 

Exh. 8, Pledge Agreement. 

Plaintiff maintains that in March of 2020, Borrower defaulted under the Note 

by failing to timely make the first payment of $800,000.00 per the Payment Schedule, 

among other defaults. Compl. ¶ 19. On June 19, 2020, Plaintiff delivered a notice of 

default to Borrower and copied the Guarantors. Compl., Exh. 9, Notice of Default. At 

that point, the amounts due under the Note were accelerated. Compl. ¶ 21. According 

to Plaintiff, neither Borrower nor Guarantors had paid Plaintiff the amounts due and 

owing under the Loan or otherwise cured any of the defaults as required under the 

Note and Guarantees. Id. 

Case: 1:20-cv-03940 Document #: 41 Filed: 12/07/20 Page 4 of 21 PageID #:684
5

Accordingly, and pursuant to the Note and Guarantees’ confession of judgment 

provisions, Plaintiff filed a federal suit for confession of judgment and declaratory 

relief on July 6, 2020. Compl. ¶ 1. Plaintiff contemporaneously filed the Declaration 

of Yuval Lapidot, Plaintiff’s manager, with the Complaint. R. 2, Lapidot Decl. In his 

Declaration, Mr. Lapidot testified that as of the filing of the lawsuit, the amount of 

principal and interest due and owing to Plaintiff under the Loan and pursuant to the 

Note was $2,742,307.00 (comprised of $1,300,000.00 in principal and $1,442,307.00 

in calculated interest). Id. at ¶ 9. Mr. Lapidot further testified that $2,742,307.00 was 

exclusive of late fees, attorneys’ fees, costs, and expenses. Id.

On July 9, 2020, Plaintiff filed a motion for partial judgment on the pleadings

as to Counts I through VII of the Complaint (the “Confession Counts”), asserting that 

the Court should enter judgment where Borrower and each of the Guarantors have

confessed judgment (per the confession of judgment provisions of the Note and 

Guarantees) and waived any and all defenses. R. 7, Mot. Part. J. On July 10, 2020, 

the Court2 entered an Order of Judgment by Confession. See Judgment at 2

(“Borrower and each of the Guarantors, by its or his attorney, consents to the entry 

of judgment in favor of YL and against each of Borrower and Guarantors, jointly and 

severally, for the amount of the damages for the sum of $2,742,307.00 and for late 

fees and attorneys’ fees, expenses and other reasonable costs of collection.”).

On July 31, 2020, three weeks after the Judgment was entered, Defendants’ 

attorney filed an appearance and moved to vacate the Court’s Judgment. R. 12, Defs.’ 

2At that time, this case was pending before Judge Gettleman. This case was reassigned to 

this Court on September 28, 2020. R. 31.

Case: 1:20-cv-03940 Document #: 41 Filed: 12/07/20 Page 5 of 21 PageID #:685
6

Att’y App.; Mot. to Vacate. In the course of briefing the Motion to Vacate, Defendants 

raised a new argument in their Reply brief concerning a Note provision regarding an 

affidavit. See R. 24, Defs.’ Reply at 6–7. The Court afforded Plaintiff an opportunity 

to respond to this argument. R. 29, 09/09/20 Min. Entry. Plaintiff filed its Sur-Reply3

and attached a Declaration of Plaintiff’s counsel, Alon Applebaum. R. 30, Exh. A, 

Applebaum Decl. Shortly thereafter, Defendants filed a motion to strike Mr. 

Applebaum’s Declaration. R. 33. The Court now rules on both the pending motion to 

vacate and the motion to strike. The Court addresses the motion to strike as part of 

the motion to vacate discussion regarding affidavits. See infra at 17–20. 

Legal Standards

Under Federal Rule of Civil Procedure 60, a court may relieve a party from a 

final judgment or order based on one of six reasons. See Fed. R. Civ. P. 60(b)(1)–(6). 

The Seventh Circuit has clarified that relief under any of Rule 60(b)’s reasons may 

only be granted “under exceptional circumstances.” Wehrs v. Wells, 688 F.3d 886, 890 

(7th Cir. 2012); see also Bakery Machinery & Fabrication, Inc. v. Traditional Baking, 

Inc., 570 F.3d 845, 848 (7th Cir. 2009) (relief from judgment under Rule 60(b) is “an 

extraordinary remedy and is granted only in exceptional circumstances”) (internal 

citations omitted). This principle is rooted in a “strong policy favoring the finality of 

judgments.” Lee v. Village of River Forest, 936 F.2d 976, 978 (7th Cir.

3The Court notes that while Plaintiff designates its brief as a “Sur-Reply,” the brief is more 

appropriately characterized as a “Sur-Response,” because it was filed in response to 

Defendants’ Reply. See Black’s Law Dictionary 1674 (10th ed. 2014) (a surresponse is the 

“second response by someone who opposes a motion” and generally “comes in answer to the 

movant’s reply.”) No matter, for the purposes of this Opinion, the Court adopts Plaintiff’s 

“Sur-Reply” designation. 

Case: 1:20-cv-03940 Document #: 41 Filed: 12/07/20 Page 6 of 21 PageID #:686
7

1991) (quoting Margoles v. Johns, 798 F.2d 1069, 1073 (7th Cir. 1986)). Defendants

bring their motion to vacate under Rules 60(b)(4) and 60(b)(6). 

Rule 60(b)(4) provides that, “[o]n motion and just terms, the court may relieve 

a party or its legal representative from a final judgment, order or proceeding...[if] the 

judgment is void[.]” Fed. R. Civ. P. 60(b)(4). “The list of such infirmities is exceedingly 

short . . . A judgment is not void, for example, simply because it is or may have been 

erroneous.” United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 270 (2010) 

(citations and quotations omitted). “Rule 60(b)(4) is intended for cases where the 

district court issuing the underlying judgment lacked jurisdiction or acted in a 

manner inconsistent with due process.” Richards v. Stevens, 327 Fed. App’x. 659, 660 

(7th Cir. 2009) (citing Marques v. Fed. Reserve Bank of Chicago, 286 F.3d 1014, 1018 

(7th Cir. 2002)). 

Rule 60(b)(6) is the catch-all relief provision, providing that the court may 

vacate a final judgment for “any other reason that justifies relief.” Fed. R. Civ. P. 

60(b)(6). “In a rule already limited in application to extraordinary circumstances, 

proper resort to this ‘catch all’ provision is even more highly 

circumscribed.” Provident Sav. Bank v. Popovich, 71 F.3d 696, 700 (7th Cir. 1995); see 

also In re Neuberg v. Michael Reese Hosp. Found., 123 F.3d 951, 955 (7th Cir.

1997) (calling Rule 60(b)(6) an “even more highly circumscribed exception”).

Defendants must meet a “heavy burden” of proof that extraordinary circumstances 

are present to justify relief under Rule 60(b)(6). Plisco v. Union R.R. Co., 379 F.2d 15,

17 (3d Cir. 1967). 

Case: 1:20-cv-03940 Document #: 41 Filed: 12/07/20 Page 7 of 21 PageID #:687
8

Discussion

I. Defendants’ Arguments in Support of Vacating Judgment

Defendants raise several arguments in support of their requested relief under 

Rules 60(b)(4) and 60(b)(6), most of which challenge the enforceability of the 

underlying confession of judgment provisions—the contractual authority for the 

resulting Judgment by Confession. Namely, Defendants assert that the Judgment 

should be vacated, because (1) the confession of judgment provisions fail to contain 

an ascertainable amount for which Defendants could be held liable in the event of a 

default; (2) the confession of judgment provisions and transactional documents are 

ambiguous and cannot be applied without resorting to documents outside the four 

corners; (3) Plaintiff fails to include an affidavit in compliance with the confession of 

judgment provisions and federal law; (4) the confession of judgment provisions violate 

the Illinois Rules of Professional Conduct (“IRPC”); (5) Borrower has already made

payments that were intended to be paid to Plaintiff; and finally, (6) Plaintiff fails to 

include an affidavit signed by an officer of the Borrower, as required under the Note. 

See Mot. to Vacate at 4–5; Defs.’ Reply at 6–7. In response, Plaintiff maintains that 

Defendants have not met their heavy burden of proof that extraordinary 

circumstances are present to warrant relief under Rule 60(b), as none of these 

arguments constitute a meritorious defense that would justify the opening of a 

confessed judgment. R. 16, Pl.’s Resp. at 6–7.

The Court will address each of Defendants’ arguments and Plaintiff’s 

responses in turn, but first, as a threshold matter, the Court notes that none of 

Case: 1:20-cv-03940 Document #: 41 Filed: 12/07/20 Page 8 of 21 PageID #:688
9

Defendants’ proffered arguments support relief under Rule 60(b)(4). As explained

above, Rule 60(b)(4) permits a court to vacate a final judgment if the judgment is 

“void.” Defendants appear to argue that because the underlying confession of 

judgment provisions are “void” (due to ambiguous language, for example), the 

resulting judgment is therefore “void.” Mot. to Vacate at 1. Defendants are mistaken 

in this analysis. Rule 60(b)(4) is decidedly reserved “for cases where the district court 

issuing the underlying judgment lacked jurisdiction or acted in a manner inconsistent 

with due process.” Richards, 327 Fed. App’x. at 660. None of Defendants’ arguments 

suggest that the Court lacked jurisdiction or acted inconsistently with due process in 

rendering its Judgment. 

Since Defendants advance no basis for vacating the Confession of Judgment 

under Rule 60(b)(4), that leaves Rule 60(b)(6) as the remaining authority for the 

requested relief. As such, the issue at hand is whether the Defendants’ proffered 

arguments present the requisite highly extraordinary circumstances that would 

warrant opening a confessed judgment under the Rule 60(b) catch-all.

1. Ascertainment of the “Amount Then Due” 

First, Defendants argue that the Note and Guarantees’ confession of judgment 

provision is not enforceable, because while the provision authorizes an attorney to 

confess judgment and set forth “the amount then due,” such an “amount then due” is 

not ascertainable from the instruments and cannot be calculated without considering 

information outside the Note and Guarantees. Mot. to Vacate at 5–10. Specifically, 

Defendants claim that earlier provisions of the Note reference undefined and 

Case: 1:20-cv-03940 Document #: 41 Filed: 12/07/20 Page 9 of 21 PageID #:689
10

ambiguous costs and fees, including a prepayment premium, a special interest fee, 

default fees, and other amounts due, “none of which were known when the Note was 

executed and clearly require the introduction of evidence beyond the four corners of 

the document to calculate [...].” Id. at 8. Defendants chiefly rely on Grundy Cty. Nat. 

Bank v. Westfall, a 1971 case in which the Illinois Supreme Court vacated the lower 

court’s judgment by confession, finding that the underlying guaranty agreement was 

defective, as it neither specifically stated the amount which might be confessed nor 

permitted its ascertainment. 275 N.E.2d 374, 376 (Ill. 1971).

Plaintiff responds that the amount then due is clearly ascertainable within the

four corners of the instruments. Pl.’s Resp. at 8. Plaintiff contends that under the

Note, Borrower clearly promised to pay the principal sum of $1.3 million with interest

on the unpaid principal balance, and the Note explains exactly how to calculate that

interest by providing the interest rate, with monthly compounding on the basis of a

year of 360 days and the actual days elapsed. Id. Plaintiff submits that Defendants’

references to “ambiguous” fees are essentially red herrings, as the amount of the

confessed judgment is comprised of two figures and two figures only: principal plus

interest. Plaintiff cites to several Illinois cases, including Cole v. Davis, which confirm

that a confession of judgment provision is enforceable even if it includes a variable

interest rate. See Cole v. Davis, 63 N.E.3d 946, 958–59 (Ill. App. Ct. 2016) (“[A] 

confession of judgment clause with a fixed principal amount due and a variable 

interest rate is not legally insufficient under Illinois case law interpreting the 

statutory right to confess judgment.”). The Court agrees.

Case: 1:20-cv-03940 Document #: 41 Filed: 12/07/20 Page 10 of 21 PageID #:690
11

As a starting point, Defendants’ primary authority for finding a confession 

provision invalid based on an unascertainable amount due (Grundy) is plainly

distinguishable. In Grundy, the guaranty agreement provided no evidence of liability 

whatsoever. The amount due was a fill-in-the-blank space that was left blank at the 

time of the signing and was only filled in with a handwritten “$50,000.00” at the time 

of the judgment. Grundy, 275 N.E.2d at 376. Without the ability to ascertain the

amount confessed, the Grundy court found that the power to confess judgment was

invalid. Id. The facts here are far afield from Grundy. Here, the Note clearly states

Borrower owes principal in the amount of $1.3 million plus interest and clearly details

the formula for calculating said interest. Pl.’s Resp. at 8; see also Note at 1 (“principal

sum of [...] ($1,300,000.00) with interest”). Where the principal amount is fixed and

the interest is variable, as is the case here, the confession of judgment provision is

still enforceable under Illinois law. Cole, 63 N.E.3d at 958. Moreover, the Court agrees 

with Plaintiff that Defendants’ references to other costs and fees are irrelevant. The 

Judgment ordered payment of $2,742,307.00 ($1,300,000.00 (principal) plus 

$1,442,307.00 (interest)). Judgment at 2. There is no mention of a special interest 

payment, default fees, or a prejudgment premium in the Judgment Order, and any 

ambiguity regarding those terms, real or perceived, is of no import in ascertaining 

the amount owed. Id.

In short, the primary authority cited by Defendants is clearly distinguishable 

from this case, and Defendants’ unascertainable amount argument does not present 

Case: 1:20-cv-03940 Document #: 41 Filed: 12/07/20 Page 11 of 21 PageID #:691
12

a meritorious defense that would justify opening the confessed judgment under Rule 

60(b)(6). 

2. Ambiguity of the Note and Guarantees 

Second and relatedly, Defendants argue that the Judgment should be vacated, 

because the Note and Guarantees contain ambiguous language and present questions 

of fact which require the Court to consider evidence beyond the transactional 

documents. Mot. to Vacate at 4. Defendants assert that there are two main areas of 

ambiguity. Defendants argue that the calculation of the amount then due under the 

Note is ambiguous. Id. at 6–8. Defendants also contend that there is confusion 

regarding the date of the Note’s execution, which calls the enforceability of the 

securing Guarantees into question. Because Defendants’ ambiguity argument as it 

relates to the amount due has already been discussed and dismissed (see supra 9–11), 

the Court need not revisit that argument. Instead, the Court focuses on Defendants’ 

ambiguity argument with respect to the date of the Note’s execution. 

Defendants contend that the Guarantees define the Note as the “Secured 

Promissory Note of even date herewith.” Mot. to Vacate at 11; see also Compl., Exh. 

2, 5015 N. Lincoln Guaranty at 1. Defendants assert that the Note attached to the 

Complaint is dated September 5, 2019, but the Guarantees (which include the “of 

even date herewith” language) all state an effective date of September 6, 2019. Mot. 

to Vacate at 11. Defendants suggest that because the “of even date herewith” 

language prompts a date analysis to link the Guarantees to the Note, conflicting dates 

require the introduction of extrinsic evidence. Id. And, Defendants assert, an 

Case: 1:20-cv-03940 Document #: 41 Filed: 12/07/20 Page 12 of 21 PageID #:692
13

introduction of extrinsic evidence requires a vacating of the Judgment. Id. 

Defendants cite two cases—Ninow v. Loughnane and Sullivan v. Cox—for the 

proposition that judgments by confession should be vacated when there is ambiguity 

concerned the underlying transactional documents, and questions of fact exist. Id. at 

6 (citing Ninow v. Loughnane, 431 N.E.2d 1267 (Ill. App. Ct. 1981); Sullivan v. Cox, 

78 F.3d 322 (7th Cir. 1996)).

In response, Plaintiff questions the relevance of the conflicting dates 

argument. Pl.’s Resp. at 11. Plaintiff notes that Defendants do not argue that the 

Guarantees fail to secure the Note. Id. Nor do Defendants suggest that parol evidence 

would prove otherwise. Id. No matter, as Plaintiff insists that the “of even date 

herewith language” is not ambiguous. Id. Plaintiff maintains that there is only one 

reasonable interpretation of the documents’ execution timeline—Borrower’s 

representative signed the Note, and Guarantors’ representative signed the 

Guarantees on September 5, 2019 before their attorney notarized the documents on 

September 6, 2019. Id. Plaintiff contends that the Guarantees obviously secure the 

Note. Id. The Note evidences a $1.3 million loan between Defendants and Plaintiff, 

and the Guarantees state that the Note evidences a $1.3 million loan between 

Defendants and Plaintiff. Id.; see also Note at 1; 5015 No. Lincoln Guaranty at 1. 

There are no other notes or guarantees between Plaintiff and Defendants, and 

Plaintiff argues that Defendants make no effort to suggest otherwise. Further, 

Plaintiff distinguishes Defendants’ cited authority. Pl.’s Resp. at 11. Plaintiff argues

that in Ninow, the Illinois Appellate Court reversed the judgment by confession, 

Case: 1:20-cv-03940 Document #: 41 Filed: 12/07/20 Page 13 of 21 PageID #:693
14

finding that a payment renegotiation clause created an ambiguity regarding the 

effectiveness of a declaration of default and the acceleration of indebtedness; it was 

unclear if there could be acceleration without renegotiation. Id. (citing Ninow, 431 

N.E.2d at 1271). In other words, there were questions of fact about the underlying 

liability. Similarly, in Sullivan, the Seventh Circuit denied summary judgment, 

finding that there were questions of fact about the liability of an individual who 

signed a benefit plan contract as the president of a company without identifying the 

company’s full corporate name. Id. (citing Sullivan, 78 F.3d at 327). 

Upon review of the Note provision, the Court finds that the timeline is not 

ambiguous. An ambiguity only exists when a contract “contains language that is 

susceptible to more than one reasonable interpretation.” Hillenbrand v. Meyer Med.

Grp., S.C., 682 N.E.2d 101, 104 (Ill. App. Ct. 1997) (internal citations omitted). There 

is only one reasonable interpretation with regard to document dates. The Note and 

Guarantees were signed on September 5, 2019, and the Note was notarized on 

September 6, 2019. No extrinsic evidence is required to interpret the “of even date 

herewith” language. And perhaps most importantly, even if the language were

ambiguous, it has no bearing on whether Guarantors are liable for Borrower’s loan of 

$1.3 million plus interest. The Guarantees clearly secure a $1.3 million loan from 

Plaintiff to Defendants. 5015 No. Lincoln Guaranty at 1. Defendants’ ambiguity 

argument is not supported by a developed legal or factual basis that would present a 

question of fact regarding the Guarantors’ liability that would warrant opening the

confessed judgment under Rule 60(b)(6). 

Case: 1:20-cv-03940 Document #: 41 Filed: 12/07/20 Page 14 of 21 PageID #:694
15

3. Sufficiency of the Affidavit

Third, Defendants assert that the confession of judgment provision requires 

the submission of an affidavit, which sets forth the amount due, and Mr. Lapidot

(Plaintiff’s manager)’s Declaration is not a sufficient affidavit. Mot. to Vacate at 11

(citing Lapidot Decl.). Defendants maintain that the Lapidot Declaration fails to

comply with 28 U.S.C. § 1746 (unsworn declarations under penalty of perjury) and 

fails to set forth the amount then due. Id. To the contrary, Plaintiff contends that the 

Lapidot Declaration follows the exact language of 28 U.S.C. § 1746 and includes a 

clear breakdown of principal and interest due under the Note as required under the 

confession of judgment provision. Pl.’s Resp. at 12. 

The Court finds that Plaintiff yet again has the better of the arguments here.

The Lapidot Declaration indeed includes the language required under 28 U.S.C. § 

1746 for a declaration executed outside the United States. Compare Lapidot Decl. at 

3 (“Pursuant to 28 U.S.C. § 1746, I, Yuval Lapidot, declare under penalty of perjury 

under the laws of the United States of America that the statements set forth in this 

instrument are true and correct.”) with 28 U.S.C. § 1746 (“I declare (or certify, verify, 

or state) under penalty of perjury under the laws of the United States of America that 

the foregoing is true and correct.”). Further, the Court finds that the Lapidot 

Declaration includes a table breakdown of the principal and interest owed, in 

compliance with the confession provision’s affidavit requirement. Lapidot Decl. at 2.

Defendants’ affidavit challenge fails, as it does not present an extraordinary 

circumstance that would warrant opening the confessed judgment. 

Case: 1:20-cv-03940 Document #: 41 Filed: 12/07/20 Page 15 of 21 PageID #:695
16

4. Confession Provision and the IRPC

Fourth, Defendants assert that the confession of judgment provision violates 

several Illinois Rules of Professional Responsibility, including Rules 1.3, 1.4, 1.7, and 

1.8, and should therefore be deemed void. Mot. to Vacate 12–18. 

The Court need not address each allegedly violated Rule, as the Court agrees 

with Plaintiff’s argument that confession of judgment provisions have been expressly 

permitted under Illinois law, and no attorney-client relationship is created between 

Plaintiff’s counsel and the debtor by the signing of a confession of judgment. Pl.’s 

Resp. at 13–14; see also Bay Group Health Care, LLC v. Ginsberg Jacobs, LLC, 2017 

WL 770984 at *4 (N.D. Ill. Feb. 28, 2017) (finding that no attorney-client relationship 

was created by plaintiff’s’ attorney signing the confession of judgment); Citibank, N.A. 

v. Bearcat Tire, A.G., 550 F. Supp. 148, 150–51 (N.D. Ill. 1982) (finding that 

confession of judgment by plaintiff’s counsel is expressly permitted under Illinois law 

and does not invalidate the judgment). A confession of judgment, as Plaintiff notes, 

authorizes any attorney to appear and confess judgment against Defendants and 

certainly does not require the creation of an attorney-client relationship or 

appearance on behalf of Defendants. Pl.’s Resp. at 15. While perhaps an imaginative 

argument, a challenge based on the IRPC has no support in case law; without an 

attorney-client relationship, Rules 1.3, 1.4, 1.7, and 1.8 are inapplicable. Defendants’ 

arguments regarding the IRPC do not raise meritorious defenses that would warrant 

vacating the confessed judgment here. 

Case: 1:20-cv-03940 Document #: 41 Filed: 12/07/20 Page 16 of 21 PageID #:696
17

5. Payments Unaccounted For

Fifth, Defendants contend that Plaintiff failed to credit supposed payments 

against their debt under the Note. Mot. to Vacate at 9. Defendants assert that they 

made payments in the amount of $433,951.00 to Justin Toti and Allport-Peoria, LLC 

(equity owner of four Guarantors) for the purpose of paying Plaintiff and attach a 

Declaration by Joseph Zivkovic, who declares that to the “best of [his] knowledge, 

these payments were made.” Mot. to Vacate, Exh. B, Zivkovic Decl. Plaintiff counters

that these “supposed payments (real or imagined) do not constitute payments to 

[Plaintiff].” Pl.’s Resp. at 12. 

The Court agrees with Plaintiff. Payments to Justin Toti and Allport-Peoria, 

LLC do not constitute payments made to Plaintiff, and Defendants do not provide any 

connection between this payment amount and the amount owed to Plaintiff. There is

not enough here to constitute extraordinary circumstances warranting opening the 

confessed judgment. 

6. Another (Late Raised) Affidavit Sufficiency Argument

Finally, Defendants attempt to revive their affidavit sufficiency argument in 

their Reply brief, this time with a new spin. For the first time in their Reply, 

Defendants assert that the judgment is void, because the confession of judgment 

provision required that “the unpaid amount of this note” must be “evidenced by an 

affidavit signed by an officer or manager of Maker [a.k.a. Borrower] setting forth the 

amount then due.” Reply at 6–7 (citing Note at 2) (emphasis added)). Defendants 

argue that the Lapidot Declaration detailing the amount then due was prepared and 

Case: 1:20-cv-03940 Document #: 41 Filed: 12/07/20 Page 17 of 21 PageID #:697
18

signed by a manager of the Plaintiff (Lender), not the Borrower. Id. at 7. Because 

Plaintiff did not submit an affidavit signed by the Borrower, Defendants contend that 

the confession of judgment requirements were not met, and the resulting judgment 

should be vacated. Id.

Typically, courts do not entertain arguments raised for the first time in a reply

brief. Dyson, Inc. v. Sharkninja Operating LLC, 2016 WL 4720019, at *1 (N.D. Ill. 

Sept. 9, 2016) (“Arguments raised for the first time in a reply brief are waived.”) 

(citing United States v. Kennedy, 726 F.3d 968, 974 n.4 (7th Cir. 2013)). In this case, 

however, the Court permitted Plaintiff to respond to this late-raised argument by 

filing a Sur-Reply.4 Because the Court allowed additional briefing on this new 

argument, the Court will consider Defendants’ late-raised argument and Plaintiff’s 

response. 

In its Sur-Reply, Plaintiff maintain that this new argument does nothing to 

move the needle, because Defendants still have not legitimately disputed the amount 

owed, and the lack of an affidavit from Borrower does not invalidate the Judgment. 

R. 30, Pl.’s Sur-Reply at 1–2. Plaintiff contends that Defendants did not assert this 

affidavit challenge in their opening motion, because they know that an affidavit from 

the Borrower was not intended by the parties’ agreement. Id. at 2. Moreover, Plaintiff 

contends that the term “Maker” in the affidavit provision is obviously a scrivener’s 

error; “Maker” should clearly be “Holder” (Plaintiff). Id. Plaintiff argues that Illinois 

4See 09/09/20 Min. Entry (“MINUTE entry before the Honorable Robert W. Gettleman: On or 

before 9/21/2020, plaintiff is directed to respond to defendant’s argument, raised for the first 

time in his reply brief [24] at 6–7, that the Note requires an affidavit ‘signed by an officer or 

manager of Maker setting forth the amount then due.’”).

Case: 1:20-cv-03940 Document #: 41 Filed: 12/07/20 Page 18 of 21 PageID #:698
19

law empowers the Court to correct such errors to give effect to parties’ actual 

agreement and to avoid absurd results. Plaintiff then attaches the Declaration of Alon 

Applebaum, Plaintiff’s counsel that participated in the drafting of the Note. Id., Exh. 

A, Applebaum Dec. ¶ 5. The Applebaum Declaration purports to clarify the scrivener’s 

error. Id. 

The Court finds that a strict construction of the affidavit provision, as 

suggested by Defendants, would produce absurd results. In considering wellestablished case law that a court will not interpret a contract in a manner that would 

nullify a contractual provision or produce absurd results, the Court declines to accept 

that the confession of judgment provision intended for the affidavit evidencing the 

amount due to be submitted by the Maker/Borrower. Plaintiff notes that if “Maker” 

was accurately included in the provision, it would likely be the first lender in Illinois 

confession of judgment history to effectively nullify its own ability to obtain a 

judgment by confession by requiring an ask of the borrower for a determination of the 

amount owed. See Beanstalk Grp., Inc. v. AM Gen. Corp., 283 F.3d 856, 860 (7th Cir. 

2002) (noting that “a contract will not be interpreted literally if doing so would 

produce absurd results”); see also Thompson v. Gordon, 948 N.E.2d 39, 47 (Ill. 2011)

(“A court will not interpret a contract in a manner that would nullify or render 

provisions meaningless.”).

Defendants’ argument that the judgment is void, because an affidavit by the 

Maker/Borrower was not submitted is unavailing and does not present extraordinary 

circumstances that would justify opening the confessed judgment here.

Case: 1:20-cv-03940 Document #: 41 Filed: 12/07/20 Page 19 of 21 PageID #:699
20

The Court reaches this conclusion without considering the Applebaum 

Declaration (the object of Defendants’ pending Motion to Strike) that purports to 

explain the scrivener’s error. See Mot. to Strike. Consideration of the Applebaum 

Declaration is unnecessary, as the Court declines to interpret the confession of 

judgment provision in a way that produces absurd results, regardless of the 

Declarant’s interpretation of the intent of the parties. Because the Court did not 

consider the Applebaum Declaration in its analysis of Defendants’ Lapidot 

Declaration argument, the Motion to Strike is denied as moot.

Conclusion

Plaintiff sums up Defendants’ Motion to Vacate as an attempted “search for 

technicalities to invalidate the judgment.” Pl.’s Resp. at 1–2. The Court agrees with 

this characterization. None of Defendants’ asserted reasons is sufficient to present a 

meritorious defense to their agreed-to liability or justifies relieving them from the 

operation of the Judgment. Defendants have not met the heavy burden of proof that 

extraordinary circumstances are present in this case to justify relief under Rule

60(b)(6). As such, the Motion to Vacate [13] is denied. The pending Motion to Strike

[33] is denied as moot. The Court notes that a Motion to Stay a UCC Sale is also 

pending in this case. R. 37. The Motion to Stay will be addressed in a Minute Entry 

on the case docket.

Case: 1:20-cv-03940 Document #: 41 Filed: 12/07/20 Page 20 of 21 PageID #:700
21

____________________________________

Franklin U. Valderrama

United States District Judge

DATED: December 7, 2020

Case: 1:20-cv-03940 Document #: 41 Filed: 12/07/20 Page 21 of 21 PageID #:701