{ "id": 3330815, "name": "OAK TRUST & SAVINGS BANK, Plaintiff-Appellee, v. JOHN A. ANNERINO, Defendant-Appellant", "name_abbreviation": "Oak Trust & Savings Bank v. Annerino", "decision_date": "1978-09-25", "docket_number": "No. 77-498", "first_page": "1030", "last_page": "1032", "citations": [ { "type": "official", "cite": "64 Ill. App. 3d 1030" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "169 N.E.2d 73", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "78" } ], "opinion_index": 0 }, { "cite": "19 Ill. 2d 593", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2743913 ], "pin_cites": [ { "page": "602" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/19/0593-01" ] }, { "cite": "272 N.E.2d 497", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1960, "pin_cites": [ { "page": "501" } ], "opinion_index": 0 }, { "cite": "48 Ill. 2d 580", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2906340 ], "year": 1960, "pin_cites": [ { "page": "587" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/48/0580-01" ] }, { "cite": "302 N.E.2d 382", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "385" } ], "opinion_index": 0 }, { "cite": "14 Ill. App. 3d 318", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2686091 ], "pin_cites": [ { "page": "321" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/14/0318-01" ] }, { "cite": "243 N.E.2d 504", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "506" } ], "opinion_index": 0 }, { "cite": "103 Ill. App. 2d 248", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1599820 ], "pin_cites": [ { "page": "253" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/103/0248-01" ] }, { "cite": "301 N.E.2d 739", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1968, "pin_cites": [ { "page": "743" } ], "opinion_index": 0 }, { "cite": "14 Ill. App. 3d 1", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2689508 ], "year": 1968, "pin_cites": [ { "page": "6" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/14/0001-01" ] } ], "analysis": { "cardinality": 375, "char_count": 6398, "ocr_confidence": 0.898, "pagerank": { "raw": 1.879251530510863e-07, "percentile": 0.7273530232843691 }, "sha256": "f2c4fc7a2d2aa82b7a45b2b8d73e723526413869f30a8c27e2df853f218c2232", "simhash": "1:9ed64cbec2f6b699", "word_count": 1048 }, "last_updated": "2023-07-14T19:48:21.732212+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "OAK TRUST & SAVINGS BANK, Plaintiff-Appellee, v. JOHN A. ANNERINO, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE O\u2019CONNOR\ndelivered the opinion of the court:\nOak Trust & Savings Bank (plaintiff) sued John A. Annerino (defendant) to recover the balance due on two checks drawn by defendant, payable to the order of plaintiff. Plaintiff\u2019s motion for summary judgment was granted and defendant appeals, arguing that a genuine issue of material fact exists which precludes summary judgment and an affidavit submitted in support of plaintiff\u2019s motion sets forth conclusions, not evidentiary facts.\nPlaintiff\u2019s complaint alleges that on June 22, 1974, defendant and Raphael Tyler went to Oak Trust & Savings Bank to pay a loan which Tyler owed plaintiff in order to obtain a release of lien on Tyler\u2019s automobile. Defendant drew two checks payable to plaintiff for a total of $2,549.65. In return for the checks, defendant received the title to Tyler\u2019s automobile, plaintiff\u2019s lien stamped \u201cSatisfied\u201d and the original installment loan contract stamped \u201cPaid.\u201d Plaintiff presented the checks to defendant\u2019s drawee-bank, which refused to pay the checks because the defendant had stopped payment on them.\nAfter his motion to dismiss for failure to comply with the Statute of Frauds was denied, defendant filed his answer, which admitted that he had delivered the checks as alleged, stated he had insufficient knowledge concerning the presentment and dishonor of the checks and denied all the other allegations of plaintiff\u2019s complaint.\nPlaintiff moved for summary judgment. In support of its motion for summary judgment, plaintiff submitted defendant\u2019s deposition testimony. At his deposition, defendant stated that on June 22, 1974, he and Tyler went to the bank to pay off the loan on Tyler\u2019s Pontiac automobile. The Pontiac was to have been \u201ctraded in\u201d for a new Cadillac that same day. Defendant was also lending more money to Tyler for the Cadillac. The title to the Cadillac was to have been in defendant\u2019s name. Defendant stated that he stopped payment on the checks which he had delivered to plaintiff because he found out that Tyler had not put the Cadillac title in defendant\u2019s name. He stopped payment on the checks to prevent Tyler from making a fool of him. The Cadillac dealer took Tyler\u2019s Pontiac in trade on June 22,1974. The dealer would have taken the Pontiac in trade only if Tyler had title to it, but he did not know for a fact whether Tyler had the title. Defendant said Mr. Healy from the bank said Annerino should get the title because he was paying the money.\nThe affidavit of Terrance Healy, an officer of plaintiff, was also submitted in support of plaintiff\u2019s motion. Healy stated that after defendant insisted his checks were good and produced a *20,000 deposit slip for his checking account, Healy agreed to exchange the collateral installment note, stamp it paid and release the lien on Tyler\u2019s Pontiac to defendant and Tyler. Healy further stated that he delivered the note, stamped \u201cPaid,\u201d and the lien to defendant and Tyler when he accepted defendant\u2019s checks.\nDefendant\u2019s answer to plaintiff\u2019s motion for summary judgment denied that he received the note and lien. In his counteraffidavit, defendant stated that Healy told him they had no deal until the checks cleared. Defendant further stated that delivery of the title to Tyler was contrary to Healy\u2019s statement that the title would not be delivered until the checks cleared.\nDefendant contends that there is a genuine issue of material fact because there is a question regarding the consideration for his checks. Plaintiff argues that consideration for a negotiable instrument is presumed to exist and unless there is clear and convincing evidence of a failure of consideration, the presumption remains unrebutted.\nPlaintiff\u2019s officer\u2019s affidavit states clearly that the note and release of lien were delivered when defendant\u2019s checks were accepted. The defendant denies that this is so and contends that a genuine issue of fact is thus created. We disagree. Plaintiff contends correctly that the burden of establishing a defense of failure of consideration by a preponderance of the evidence is on the person asserting it. (Ill. Rev. Stat. 1975, ch. 26, par. 3 \u2014 307(2); see First National Bank v. Achilli (1973), 14 Ill. App. 3d 1, 6, 301 N.E.2d 739, 743; Levin v. 37th Street Drugs & Liquors, Inc. (1968), 103 Ill. App. 2d 248, 253, 243 N.E.2d 504, 506.) Plaintiff\u2019s officer testified that he delivered the paid note and the release of lien in exchange for the checks. Plaintiff\u2019s actions are consistent with that assertion. Defendant himself stated that Tyler was able to obtain the CadiUac by trading his Pontiac to the dealer. In order to agree with defendant that a genuine issue of material fact exists as to the delivery of title by plaintiff, we would have to believe that the Cadillac dealer took the Pontiac in trade without receiving evidence of title from Tyler. The facts are clearly to the contrary. No genuine issue of material fact exists on this record.\nDefendant argues at some length that Healy\u2019s affidavit violates Supreme Court Rule 191 (Ill. Rev. Stat. 1977, ch. 110A, par. 191) because it is conclusory and does not assert evidentiary facts. In the trial court defendant moved to strike paragraphs two and three of Healy\u2019s affidavit; however, the record is devoid of any ruling by the trial court on defendant\u2019s motion to strike. It is the movant\u2019s duty to bring his motion to the court\u2019s attention and to preserve the rulings thereon; failure to do so waives the objection. (Davis v. Nehf (1973), 14 Ill. App. 3d 318, 321, 302 N.E.2d 382, 385.) Here, the objections to paragraphs two and three were waived by defendant\u2019s failure to bring his motion to strike to the court\u2019s attention and to preserve the rulings thereon. Defendant\u2019s other contentions concerning Healy\u2019s affidavit were raised for the first time in this court and are therefore waived. Fooden v. Board of Governors (1971), 48 Ill. 2d 580, 587, 272 N.E.2d 497, 501; Ray v. City of Chicago (1960), 19 Ill. 2d 593, 602, 169 N.E.2d 73, 78.\nThe judgment of the circuit court of Cook County is affirmed.\nAffirmed.\nRUCKLEY and WILSON, JJ., concur.", "type": "majority", "author": "Mr. JUSTICE O\u2019CONNOR" } ], "attorneys": [ "John C. Ambrose, of Chicago, for appellant.", "Robert L. Berkover, of Chicago (McCracken & Walsh, of counsel), for appellee." ], "corrections": "", "head_matter": "OAK TRUST & SAVINGS BANK, Plaintiff-Appellee, v. JOHN A. ANNERINO, Defendant-Appellant.\nFirst District (1st Division)\nNo. 77-498\nOpinion filed September 25, 1978.\nJohn C. Ambrose, of Chicago, for appellant.\nRobert L. Berkover, of Chicago (McCracken & Walsh, of counsel), for appellee." }, "file_name": "1030-01", "first_page_order": 1052, "last_page_order": 1054 }