ILLINOIS OFFICIAL REPORTS

Appellate Court

Gonzalez v. Second Federal Savings & Loan Ass’n, 2011 IL App (1st) 102297

Appellate Court

Caption

RAFAEL GONZALEZ, Plaintiff-Appellee, v. SECOND FEDERAL

SAVINGS AND LOAN ASSOCIATION,Defendant-Appellant(Hector

Gonzalez, Individually, and as Executor of the Estate of Juana Gabriela

Martinez, Third-Party Defendant).

 District & No. First District, Sixth Division

Docket No. 1–10–2297

Filed June 10, 2011

Held

(Note: This syllabus

constitutes no part of the

opinion of the court but

has been prepared by the

Reporter of Decisions for

the convenience of the

reader.)

In an action by decedent’s cousin alleging that he was the beneficiary

of four payable on death accounts decedent opened at defendant savings

and loan association and that the association, without authorization,

paid the proceeds of two of the accounts to the executor of the estate of

decedent’s daughter, the trial court properly entered a judgment for

plaintiff that included prejudgment interest, notwithstanding the

association’s contention that plaintiff failed to present clear and

convincing evidence that decedent changed the beneficiary of the

accounts from her daughter to plaintiff by adding language to the

original certificates of deposit naming plaintiff as the beneficiary.

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 05–L–1827; the

Hon. Henry R. Simmons, Jr., Judge, presiding.

Judgment Affirmed.
1Hector Gonzalez is not a party to this appeal.

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Counsel on

Appeal

Adrian Mendoza and Edward R. Sherman, both of Lillig & Thorsness,

Ltd., of Chicago, for appellant.

Gilbert W. Gordon, Peter J. Miller, and Richard R. Gordon, all of

Gordon Rappold & Miller LLC, of Chicago, for appellee.

Panel JUSTICE McBRIDE delivered the judgment of the court, with opinion.

Presiding Justice Garcia and Justice Cahill concurred in the judgment

and opinion.

OPINION

¶ 1 In February 2005, plaintiff filed a two-count complaint against defendant Second Federal

Savings and Loan Association for conversion and breach of fiduciary duty. Plaintiff later

amended his complaint to include an additional count of breach-of-contract third-partybeneficiary action. Plaintiff alleged that he was the beneficiary of four accounts opened at

Second Federal and that Second Federal, without authorization, paid the proceeds of two of

the accounts to the third-party defendant Hector Gonzalez,1 as the executor of the estate of

Juana Gabriela Martinez. Following a July 2010 bench trial on the breach-of-contract thirdparty-beneficiary count, the trial court found in favor plaintiff and awarded him $111,045.

¶ 2 Second Federal appeals, arguing that (1) the trial court erred in finding in favor of

plaintiff because the evidence was insufficient to establish that plaintiff was the rightful

beneficiary of two accounts at Second Federal; and (2) the trial court erred in awarding

prejudgment interest when plaintiff did not request that relief in his complaint.

¶ 3 Plaintiff’s first amended complaint alleged that he was the executor of the estate of Gaby

Gonzalez (Gonzalez), his cousin. In October 1999, Gonzalez opened two accounts at the

Archer Avenue branch of Second Federal, account number 008–07–9–001137–5 (375) and

008–07–9–001135–9 (359) (collectively, 1999 accounts). In November 2000, Gonzalez

opened two more accounts with Second Federal at the Pulaski branch, account number

001–07–9001626–4 (264) and account number 001–07–9001627–2 (272)(collectively, 2000

accounts). When the four accounts were opened, Gonzalez designated her daughter, Juana

Gabriela Martinez, as the beneficiary.

¶ 4 The complaint further alleged that on March 1, 2001, Gonzalez changed the beneficiary

of all four accounts to plaintiff. On August 22, 2001, Gonzalez died from terminal cancer.

On September 29, 2001, plaintiff closed the 2000 accounts and the proceeds were paid to
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plaintiff. Martinez died of terminal cancer on September 30, 2001.

¶ 5 On November 15, 2001, plaintiff requested Second Federal to draft a check to pay for

Gonzalez’s funeral costs from one of the 1999 accounts, specifically account number 375,

which Second Federal issued. Later in 2001, plaintiff asked Second Federal to prepare a

check to pay attorney fees associated with Gonzalez’s estate and Second Federal again issued

a check from account number 375, one of the 1999 accounts.

¶ 6 In December 2003, plaintiff sought to close the 1999 accounts, but Second Federal

informed him that the accounts had been closed and the proceeds were paid to Hector

Gonzalez, Martinez’s boyfriend and no relation to plaintiff or Gonzalez.

¶ 7 Plaintiff’s complaint alleged three counts against Second Federal: count I for conversion,

count II for breach of fiduciary duty, and count III for breach of contract third-partybeneficiary action. Plaintiff sought $80,473.47, the proceeds ofthe 1999 accounts. In October

2009, the trial court dismissed the conversion count from plaintiff’s complaint in its ruling

on the parties’ cross-motions for summary judgment. The court’s written decision also

indicated that plaintiff withdrew count II (breach of fiduciary duty) during the hearing on the

motion for summary judgment. As for count III (breach of contract third-party beneficiary),

the trial court found that a question of material fact existed and denied both parties’ requests

for summary judgment as to this count.

¶ 8 On July 29, 2010, a bench trial was conducted on plaintiff’s breach-of-contract thirdparty-beneficiary claim. A new trial judge presided over the bench trial. The following

evidence was presented at the trial.

¶ 9 Plaintiff testified with the aid of an interpreter. He stated that he resided in San Luis

Potosi, Mexico. He testified that he was related to Gaby Gonzalez. They were cousins

through their fathers. Gonzalez was also from Mexico, but she moved to Chicago in the

1970s. Plaintiff maintained contact with Gonzalez through visits and the telephone. He was

also acquainted with Gonzalez’s daughter, Juana Martinez. Plaintiff called Martinez “his

niece.”

¶ 10 Plaintiff stated that he was aware of Gonzalez’s real estate. He said that she owned a

building with a beauty salon, which Gonzalez operated.

¶ 11 Plaintiff learned in 1999 that Martinez had cancer. Later, in March 2001, plaintiff spoke

with Gonzalez over the phone and was informed that Gonzalez had cancer. Gonzalez invited

plaintiff to visit in June 2001 for a party in honor of Martinez’s birthday. Plaintiff described

Gonzalez’s condition as “very delicate” and “frail.” He said “she didn’t look well.” Plaintiff

stated that he returned at the end of July and Gonzalez’s condition was worse. When he came

to Chicago at the beginning of August, Gonzalez was at a “cancer hospital” in Waukegan,

but was transferred to Rush. Plaintiff testified that Gonzalez was released to go home when

the doctors felt “that they had no more recourse.”

¶ 12 Plaintiff stated that he had conversations with Gonzalez about her estate. She told him

that her documents were kept in a bag in a bedroom closet. The documents included her will

and certificates of deposit. Plaintiff testified that Gonzalez told him that he was to receive

the documents. Gonzalez died on August 22, 2001. Plaintiff arranged the funeral.

¶ 13 Plaintiff identified four exhibits as the original certificates of deposit that Gonzalez left
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him. All four of the certificates indicated that “Gaby Gonzalez” was the account holder. The

trustee language included a change. For the 1999 accounts, the trustee language stated,

“GABYGONZALEZASTRUSTEEFOR:JUANAGABRIELA MARTINEZ,” and beneath

that it said, “RAFAEL GONZALEZ.” For the 2000 accounts, the first line of the trustee

language stated, “AS TRUSTEE FOR: JUANA GABRIELLA MARTINEZ,” and beneath

it a second line was added, “AS TRUSTEE FOR: RAFAEL GONZALEZ.” Additionally, a

line was typed at the top of each of the four certificates, stating: “REVISED BENEFICIARY

03/01/01 RC.” The certificates for the 1999 accounts each listed an opening balance of

$50,000, while the certificates for the 2000 accounts each listed an opening balance of

$60,000.

¶ 14 Plaintiff stated that he cashed the certificates for the 2000 accounts in September 2001

at the Pulaski branch. He testified that he used the money for expenses for Martinez’s funeral

and the care of Gonzalez’s stepmother, who lived in Mexico. Plaintiff presented the

withdrawal slips for each of the accounts as an exhibit and it stated that $63,515.99, was

withdrawn from each of the 2000 accounts, and included plaintiff’s signature and the date

of September 29, 2001. The 2000 accounts were then closed. Plaintiff testified that the bank

employee did not look at any records or review any other documents before she gave plaintiff

the check.

¶ 15 Plaintiff stated he returned to Second Federal on November 15, 2001. He sought a check

to pay the funeral home. He said he took the certificates for the 1999 accounts, his

identification, the “payment slip from the funeral,” and Gonzalez’s death certificate. He

spoke with an employee and told her he wanted to issue a check to pay the funeral services

because he did not have a checking account. He said she looked over the documents, went

inside the bank, and then came back with a check. Plaintiff testified that no one indicated to

him that there was a question whether he was the beneficiary of this account. He did not

speak with any other employee of Second Federal. An exhibit was presented that showed a

copy of a check for $9,606.48, payable to Fortuna Brothers, as well as a copy of the teller

receipt indicating payment from account number 375 and plaintiff’s signature.

¶ 16 Plaintiff testified that he returned to Second Federal on December 6, 2001, to obtain a

check for attorney services on Gonzalez’s estate. He said he brought the certificates, his

identification, and the bill from the attorney. He spoke with an employee. She did not ask

him any questions, but instead she looked at plaintiff’s documents, went into the back of the

bank, and came back with a check. A copy of the teller receipt with the account number and

plaintiff’s signature and a copy of the check, payable to Owens, Owens & Rinn, Ltd., in the

amount of $22,526.50, were presented as exhibits. The teller receipt had a handwritten note,

“Approved by Gigi,” under the section for “Teller’s I.D.” The receipt also indicated that the

money was drawn from account number 375. Again, plaintiff stated that no one asked him

about his right to withdraw funds under the certificate.

¶ 17 Plaintiff stated his next visit to Second Federal was in July 2003. He spoke with an

employee at a desk. He brought the certificates and asked if the accounts were still open and

what the amounts were. Plaintiff said the employee informed him that the accounts were

open and he could go to a teller. Plaintiff did not withdraw any money that day.
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¶ 18 In December 2003, plaintiff returned to the bank. He brought the certificates and his

identification. He spoke with a teller and asked to close the accounts. He stated that the teller

looked in the system and told him the accounts were closed. Plaintiff testified that he told her

that was “impossible” because he had the original certificates. She went inside the bank and

came back with two people. They explained to plaintiff that the money had been paid to

Hector Gonzalez.

¶ 19 On cross-examination, plaintiff admitted that he did not have any firsthand knowledge

of Gonzalez’s actions with Second Federal. He was not present at Second Federal with

Gonzalez. Plaintiff stated no one at Second Federal informed him that he was not designated

as the beneficiary on the 1999 accounts. Plaintiff admitted that he was not the executor of

Martinez’s estate; she had named Hector as her executor. Plaintiff stated that other than the

certificates, he has not seen any other bank documents that reflected him as the beneficiary

of the 1999 accounts.

¶ 20 Mary Turk testified for plaintiff’s case. She stated that she formerly worked for Second

Federal for 43 years. At the time she left Second Federal, Turk handled miscellaneous

matters pertaining to “EFT” operations, checking operations, legal files and was in charge

of office supply purchases. She also handled general customer problems. Turk did not

supervise the tellers, but the tellers did come to her with questions. In 1999 and 2000, Turk

was an assistant vice-president of Second Federal.

¶ 21 Turk identified the certificates of deposit on the 1999 and 2000 accounts. She stated that

the certificates are issued when the account is opened and they are similar to a passbook-type

of instrument. Turk was asked what the notation of “REVISED BENEFICIARY 03/01/01

RC” meant. Turk answered, “That means that the owner, Gaby Gonzalez, was the account

holder at that time, came in to change the beneficiary on these accounts. That was her intent,

and it was typed this way by this–the letters, RC.” Turk stated that Rosa Cavilla worked in

the new accounts area of the bank at that time.

¶ 22 Turk was also asked about the portion in which the language naming Martinez as trustee

was crossed out and plaintiff’s name was added as trustee. Turk stated that “it’s not the way

it should have been done, but it’s the way that Rosa did it.” Turk testified that this method

had been used in prior years, but the preferred way was to issue a new certificate and a new

signature card, “but this is what was done at this time.” Turk admitted that she did not

believe there were any written procedures on how to change beneficiaries on certificates of

deposit. Turk stated that a new signature card should have been issued and the account owner

should have initialed the change.

¶ 23 Turk also testified that the signature cards from the 2000 accounts were signed twice, but

Gonzalez did not initial where the beneficiary was changed. Copies of the signature cards

were presented as exhibits. These signature cards included the language “REVISED

BENEFICIARY 03/01/01 RC” and Martinez’s name was crossed out and plaintiff’s name

was added in the section for beneficiary.

¶ 24 Turk stated that the account numbers for the 1999 accounts indicated that the accounts

were opened at a different branch, the Archer Avenue office, and the original signature cards

would have been maintained at that location. Despite this, Gonzalez would have been able
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to change the beneficiaries at the Pulaski office, but certain steps should have been done,

such as contacting the Archer branch, asking them to pull the signature cards, and preparing

new signature cards. Turk admitted that there were no procedures to perform these tasks.

Turk also stated that it would not have been proper to return the certificates to the account

holder unless all the steps to change the signature card had been completed.

¶ 25 Turk reviewed a copy of Gonzalez’s customer profile presented as an exhibit. The

message section stated: “GABY GONZALEZ DECEASED 08/22/01. REVISED

BENEFICIARY 03/01/01 RAFAEL GONZALEZ. PLEASE USE CAUTION 09/21/01.

ANY QUESTIONS SEE GIGI. 09/21/01 MNG.”Turk testified that “MNG” was Myra Garza

and that she was “GIGI.” She said this entry was on the computer system and it listed all four

accounts.

¶ 26 Turk stated that she believed she was the person who approved plaintiff’s requests for

checks to Fortuna Brothers and Owens, Owens & Rinn, Ltd. Turk testified that she approved

plaintiff’s request to close the 2000 accounts in September 2001.

¶ 27 Turk testified that she met Martinez once. Martinez came to Second Federal and sought

to withdraw money as the beneficiary, but Turk saw the accounts listed plaintiff as the

beneficiary. Turk stated that she felt bad for Martinez as she was “very ill,” but she did not

have the certificates of deposit or a death certificate. Turk stated that she was aware the

money in the 1999 accounts was paid to Hector as the trustee for Martinez’s estate, but she

did not approve the payout.

¶ 28 On cross-examination, Turk admitted that she never met Gonzalez and did not assist her

when she came to Second Federal. She conceded that she does not have any personal

knowledge of Gonzalez’s intent. She stated that after there were questions on the accounts,

she spoke with Rosa Cavilla about the notations, but Cavilla did not have any recollection

of anything. Turk also said that she did not believe she told Martinez that she was not the

beneficiary on the 1999 accounts, which had been opened at the Archer branch.

¶ 29 Turk testified that she did not recall encountering an instance in which the certificates of

deposit were in conflict with the bank signature card. Turk stated she did not know which

document would control. Turk further testified that the signature card “is the ultimate source

of ownership of the account.”

¶ 30 Turk stated that for a withdrawal to be made from the 1999 accounts, the signature cards

would be reviewed. Since the signature cards for the 1999 accounts were at the Archer

branch, they would have faxed copies over to the Pulaski branch. Turk agreed that this was

normal custom and practice. Turk admitted that the signature cards for the 1999 accounts

were lost for a period of time. Second Federal presented as an exhibit a copy of the original

signature cards for the 1999 accounts which indicated Martinez as the beneficiary. One of

the signature cards was unsigned by Gonzalez. Turk also noted that proxy cards for each of

the 1999 accounts were signed by Gonzalez and showed Martinez as the beneficiary.

¶ 31 Turk testified that the copy of the customer profile for Gonzalez’s accounts included a

handwritten notation, which stated “benef–Juana Gonzalez–daughter died 9-30-01.” Turk

stated that the handwriting was hers. However, when asked about the typed message that

indicated a revised beneficiary to plaintiff, Turk stated that she thought it applied to the
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ownership of the accounts and she could not tell by looking at the message to which account

it referred. Turk said she did not know for how many accounts Gonzalez requested to have

the beneficiary changed when she came in on March 1, 2001.

¶ 32 Turk admitted in response to a question from the trial judge that the method of crossing

out the name of beneficiary was still done “from time to time.” Turk testified that she had

no reason to believe that the certificates were not modified by an employee of Second

Federal.

¶ 33 Following Turk’s testimony, plaintiff rested. Second Federal moved for a directed

finding, which the trial judge denied.

¶ 34 Gonzalo Gradilla testified that he was currently employed as the vice-president of retail

banking at Second Federal and he previously held the position of chief operations officer at

Second Federal. In the course of his employment, he stated that he was familiar with the

forms and documents used in 1999 and 2000 for the certificates of deposit at issue. Gradilla

said that he had never met plaintiff or Gonzalez, but he had met Martinez once.

¶ 35 Gradilla stated that if a customer wanted to open a certificate of deposit in 1999, he or

she would be issued “a hardcover CD which maintains a history of the account as well as a

signature card that we maintain at the branch.” Gradilla identified that the applications and

proxy cards for the 1999 accounts which listed Gonzalez as the primary owner and Martinez

as the beneficiary. Gradilla also identified the signature cards, which were maintained at the

Archer branch. Gradilla admitted that over the course of the litigation, there was a period of

time when the signature cards could not be located. He said the bank launched an

investigation and found the cards in a box for closed account signature cards.

¶ 36 Gradilla testified that “account ownership is always supported by the signature card[,]

which is a contract with our customer.” Gradilla stated the bank would not rely on the

certificates in the case of a conflict. Gradilla admitted that he was not party to any

discussions with Gonzalez on March 1, 2001, and did not have any personal knowledge of

what she may have told a Second Federal employee about what she wanted done with her

four accounts. He did not know why there are four certificates that show a revised

beneficiary, but only two signature cards that showed a revised beneficiary.

¶ 37 Gradilla also stated that he was “part of the process” in approving the closing of the 1999

accounts and issuing payment to Hector in June 2002. He said his participation was that Turk

informed him that since they had signature cards that mentioned Martinez as the beneficiary,

Hector would be bringing executor documentation to show that he was the executor of the

estate of Juana Martinez, and that on the day he came in, Hector would have access to the

accounts. Gradilla testified that when Hector came to the bank, they reviewed the signature

cards, his identification and his designation as executor of the estate. Gradilla admitted that

Hector did not have the actual certificates for the 1999 accounts. Instead, Gradilla had Hector

sign a “lost passbook affidavit,” which indicated that he did not have possession of the

certificates. Gradilla stated that during their investigation, no modified or amended signature

cards were found for the 1999 accounts.

¶ 38 On cross-examination, Gradilla admitted that he did not play a very big role in approving

the payout to Hector. He stated that he did not know that plaintiff had the original certificates
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and admitted that if he had known there was a question as to who the funds belonged to, they

would not have paid out. Gradilla responded to a question from the trial judge that the font

used on the certificates was one used on the bank’s typewriters.

¶ 39 Myra Garza testified that she was currently employed as the retail operations manager

for Second Federal. She stated that from 1993 to 2005, she was a supervisor for Second

Federal. Garza admitted that the initials MNG from the customer profile message were hers.

She said that she inputted the message into Gonzalez’s customer profile in the computer

system. The message was entered on September 21, 2001, and all of it was entered at one

time. Garza stated that “the purpose of this message [was] to alert the teller to use caution

before proceeding with any transactions.” Garza testified that she received this information

from someone else and it was not her firsthand knowledge. She said she received this

information from Turk.

¶ 40 Garza admitted on cross-examination that a person would not be permitted to complete

a lost passbook affidavit and close the account if the bank employees knew a third party was

in possession of the certificates. Garza also testified that the change to the certificates was

a method used by Second Federal in 2001. Garza stated that a customer would not have been

allowed to leave the bank with the certificates until all the procedures were complete to

change the beneficiary, which included signing a new signature card indicating a change of

beneficiary. Garza conceded that Second Federal did not have any written procedures in 2001

for changing the names of beneficiaries on the certificates of deposit.

¶ 41 Garza testified that she was not present when the accounts were changed in March 2001.

Garza stated it was possible for a customer to change his or her mind about changes to his

or her accounts and leave the bank without signing a signature card. She said the transaction

would not be complete. However, Garza also said the certificates would reflect his or her

wishes as of that day and he or she would need to come back with certificates to change his

or her account again.

¶ 42 After Garza’s testimony, Second Federal entered a stipulation that Hector was issued two

checks: one in the amount of $23,841.49, for account 375 and one for $56,631.98, for

account 359. Both sides then rested. Following closing arguments, the trial judge made his

finding that the plaintiff proved his case by clear and convincing evidence. The judge noted

that he listened very closely to the testimony and observed the witnesses’ demeanor and that

he was also “intimately familiar with the exhibits allowed into evidence by both sides.” The

judge entered an award for plaintiff in the amount of $111,045, which included prejudgment

interest. The judge also entered judgment against Hector in a third-party action for that

amount.

¶ 43 This appeal followed.

¶ 44 On appeal, Second Federal argues that the trial court erred in finding in favor of plaintiff

because the evidence failed to establish by clear and convincing evidence that plaintiff was

the beneficiary of the 1999 accounts.

¶ 45 After a bench trial, we will not disturb the trial court’s findings of fact unless they are

against the manifest weight of the evidence. Southwest Bank of St. Louis v. Poulokefalos, 401

Ill. App. 3d 884, 890 (2010). “The reviewing court gives great deference to the trial court’s
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findings because, as the trier of fact, the trial court is in a superior position to observe the

witnesses while testifying, to judge their credibility and to determine the weight their

testimony and other evidence should receive.” International Capital Corp. v. Moyer, 347 Ill.

App. 3d 116, 121-22 (2004). A finding is against the manifest weight of the evidence only

if the opposite conclusion is apparent or if the finding appears to be arbitrary, unreasonable

or not based on the evidence. Southwest Bank, 401 Ill. App. 3d at 890; Moyer, 347 Ill. App.

3d at 122.

¶ 46 All of the accounts created by Gonzalez were payable on death (POD) accounts, also

known as Totten trust accounts. “A Totten trust is created when a deposit is made by a

person (the holder) of his or her own money in his or her own name as trustee for another.”

In re Estate of Weiland, 338 Ill. App. 3d 585, 589 (2003) (citing In re Estate of Davis, 225

Ill. App. 3d 998, 1005 (1992)). “[W]here a decedent, during his lifetime, executes an

instrument creating a bank account in his or her own name as trustee for another, there is a

presumption that the decedent intended to create a [POD] trust in favor of the named

beneficiary or beneficiaries.” Weiland, 338 Ill. App. 3d at 597 (citing In re Estate of Petralia,

48 Ill. App. 2d 122, 136 (1964), aff’d, 32 Ill. 2d 134 (1965)).

¶ 47 In determining the proper burden of proof in cases involving a Totten trust account, the

Weiland court reviewed cases involving joint accounts. The court concluded that the same

burden of proof should be applicable to both joint accounts and Totten trust accounts.

Weiland, 338 Ill. App. 3d at 597-98. Thus, “a written instrument executed by the holder

expressing his or her intent to create a POD account raises the presumption of the holder’s

intent, and such presumption may be overcome only by clear and convincing evidence.

However, in the absence of a written instrument executed by the holder, the claimant must

show the holder’s intent to create a Totten trust by clear and convincing evidence.” Weiland,

338 Ill. App. 3d at 598.

¶ 48 The statute governing POD accounts does notspecifythe signature card as the controlling

instrument when changing beneficiaries.

¶ 49 Section 4(a) of the Illinois Trust and Payable on Death Accounts Act states:

“If one or more persons opening or holding an account sign an agreement with the

institution providing that on the death of the last surviving person designated as

holder the account shall be paid to or held by [one or more designated beneficiaries],

the account, and any balance therein which exists from time to time, shall be held as

a payment on death account and unless otherwise agreed in writing between the

person or persons opening or holding the account and the institution:

(a) Any holder during his or her lifetime may change any of the designated

[beneficiaries] to own the account at the death of the last surviving holder without

the knowledge or consent of any other holder or the designated beneficiaries by a

written instrument accepted by the institution[.]” 205 ILCS 625/4(a) (West 2002).

¶ 50 The cardinal rule in construing a statute, to which all others are subordinate, is to

ascertain and give effect to the intent of the legislature. Alvarez v. Pappas, 229 Ill. 2d 217,

228 (2008). To determine legislative intent, we turn to the language of the statute, which is

the best indicator of its intent. Alvarez, 229 Ill. 2d at 228.
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¶ 51 Section 4(a) specifically allows a holder to change the beneficiary on a POD with “a

written instrument accepted by the institution.” 205 ILCS 625/4(a) (West 2002). See also

Weiland, 338 Ill. App. 3d at 603 (“neither a signature card nor any other particular form of

writing is required by the statute. Instead, the record must establish the existence of a writing

expressing the intent of the holder to establish a POD account.”). The crux of Second

Federal’s argument is that the signature cards for the 1999 accounts are the only written

instrument that can demonstrate a change of beneficiary. However, we first note that the

signature card for account number 375 was never signed by Gonzalez. Thus, the only

document which supports Second Federal’s assertion is the signature card for account

number 359. Moreover, the evidence presented at trial showed that Second Federal and its

employees allowed money to be withdrawn from the accounts without a signature card and

relied on the certificates of deposit to substantiate plaintiff’s claim as a beneficiary. These

actions support a finding that the certificates of deposit constitute “a written instrument

accepted by the institution” for a holder to indicate a change of beneficiary.

¶ 52 Plaintiff submitted multiple documents indicating Gonzalez’s intention to change the

beneficiary on all accounts. All four certificates of deposit indicate that the beneficiary was

changed to plaintiff on March 1, 2001. Second Federal employees testified that the font used

to type in the changes was from a Second Federal typewriter. Additionally, the customer

profile for Gonzalez listed all four accounts and included a message that the beneficiary was

changed to plaintiff on March 1, 2001. Plaintiff also presented the signature cards for the

2000 accounts which have Martinez’s name crossed out and plaintiff’s name typed

underneath. However, no new signature card was issued, as Second Federal contends was

required, nor did Gonzalez initial the changes on the cards. We note that the 2000 accounts

were opened at the Pulaski branch, which was the location where Gonzalez went to change

the beneficiaries.

¶ 53 Turk testified that there were no written procedures on how to change a beneficiary. She

stated that new signature cards should have been issued instead of simply crossing out

Martinez’s name and adding plaintiff’s name because doing it that way is “not the way it

should have been done, but it’s the way that Rosa did it.” She also noted that this method of

crossing out the prior beneficiary and typing in a new one had been used in prior years. Turk

further stated that Gonzalez would have been able to change the beneficiary on the 1999

accounts, which were opened at a different branch, at the Pulaski branch, but the bank

employees would need to follow certain steps to change the signature cards. Again, Turk

admitted there were no procedures for employees to perform these tasks.

¶ 54 Evidence was also presented through exhibits and witness testimony that Second Federal

permitted plaintiff to use funds from the 1999 accounts to pay bills for Gonzalez’s estate. A

check was issued first for the funeral home and later a check for the attorneys for the estate.

Plaintiff testified that when he went to Second Federal for these checks he presented his

identification, the certificates of deposit and the invoices. He was not questioned about his

right to withdraw funds from the accounts. These transactions indicate that Second Federal

considered the certificates of deposit listing plaintiff as the beneficiary to be sufficient

documentation to release funds. Second Federal asserts that the invoices were paid because

they were billed to Martinez and the checks were issued directly to the third-party creditors,
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but we are not persuaded because at the time of the transactions, plaintiff did not present any

documents showing that he was authorized to withdraw funds on Martinez’s behalf and

employees did not question plaintiff about his ownership of the accounts. Further, plaintiff

testified that he had the checks prepared in the name of the creditors because he did not have

a checking account.

¶ 55 Under the facts of this case, Second Federal, through the actions of its employees,

permitted Gonzalez to change her beneficiary to plaintiff and then gave plaintiff access to the

funds without any question as to the signature card. Since the statute governing POD

accounts allows for the change in beneficiary on a written instrument accepted by the

institution, the certificates of deposit were sufficient proof of the beneficiary change and

Second Federal acknowledged the certificates as such when it permitted plaintiff to withdraw

funds as the beneficiary. Given this evidence of documentary intent and the actions by

Second Federal recognizing plaintiff as the beneficiary, we do not find that the opposite

conclusion is apparent nor was the trial court’s finding arbitrary, unreasonable or not based

on the evidence. Accordingly, we hold that the trial court’s findings were not against the

manifest weight of the evidence and affirm its award in favor of plaintiff.

¶ 56 Finally, Second Federal asserts that plaintiff was not entitled to prejudgment interest on

the award because interest was not specifically requested in his request for relief in his

complaint. Plaintiff responds that Illinois law did not require him to specifically request

interest in count III of his complaint.

¶ 57 Section 2 of the Interest Act provides:

“Creditors shall be allowed to receive at the rate of five (5) per centum per annum for

all moneys after they become due on any bond, bill, promissory note, or other

instrument of writing; on money lent or advanced for the use of another; on money

due on the settlement of account from the day of liquidating accounts between the

parties and ascertaining the balance; on money received to the use of another and

retained without the owner’s knowledge; and on money withheld by an unreasonable

and vexatious delay of payment. In the absence of an agreement between the creditor

and debtor governing interest charges, upon 30 days’ written notice to the debtor, an

assignee or agent of the creditor may charge and collect interest as provided in this

Section on behalf of a creditor.” 815 ILCS 205/2 (West 2002).

¶ 58 “Prejudgment interest need not be requested in the complaint in order to be recoverable

under the Interest Act; when the evidence at trial establishes that a party is entitled to

prejudgment interest under the Interest Act, a request for such interest will be read into the

complaint.” Prignano v. Prignano, 405 Ill. App. 3d 801, 821-22 (2010) (citing Kehoe v.

Wildman, Harrold, Allen & Dixon, 387 Ill. App. 3d 454, 473 (2008); Boyd v. United Farm

Mutual Reinsurance Co., 231 Ill. App. 3d 992, 1000 (1992) (“Contrary to the defendant’s

argument, the mere fact that plaintiffs’ complaint did not ask for interest was of no moment,

since interest is provided by statute and will be read into the complaint.”) Madison Park

Bank v. Field, 64 Ill. App. 3d 838, 843 (1978) (“The fact too that the complaint did not ask

for interest is of no moment, since the same is provided for by statute and will be read into

the complaint.”)
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¶ 59 Here, Second Federal deprived plaintiff as the beneficiary the funds from the 1999

accounts and the trial court properly read a request for prejudgment interest under the Interest

Act into the complaint. Therefore, we affirm the trial court’s award of prejudgment interest.

¶ 60 Based on the foregoing reasons, we affirm the decision of the circuit court of Cook

County.

¶ 61 Affirmed.