Business Advice and Financial Planning

(Court opinion corrected 4/14/11.) Plaintiffs, individuals and their business entities formed for purpose of creating artificial losses, filed suit against accountant and banks which allegedly advised Plaintiffs to engage in, and implemented, "investment strategies" for buying and selling foreign currencies to create ordinary losses. For purposes of liability of accountant for negligent preparation of tax return, five-year period is lengthened to two years after IRS files assessment; or, taxpayer must file suit within two years after assessment or conclusion of assessment proceeding by settlement with IRS. Plaintiffs' suit was not barred by statute of repose, as suit was filed within two years after conclusion of assessment proceedings. (McCULLOUGH and MYERSCOUGH, concurring.)

(Court opinion corrected 1/18/11.) Dispute arose over sale of interests in two joint ventures of trading companies. Plaintiffs, traders who have owned and operated trading companies for over ten years, sued Defendant, a CBOE options trader, alleging that he had breached his duty as a fiduciary in fact. Court properly granted summary judgment for Defendant, finding that parties were sophisticated, that Plaintiffs relied on their counsel in negotiations, and that Plaintiffs demonstrated that they did not blindly follow advice of Defendant. Court properly found that Plaintiffs could not state claim for affirmative fraud, as contract contained a non-reliance clause. Court was within its discretion in refusing to impose sanctions on Plaintiffs' attorneys, even though their theory of case shifted and their claims were dismissed. (GARCIA and CAHILL, concurring.)

Bank filed action against two individuals to enforce guaranties for payment of promissory notes, and court entered judgment against them. An Illinois LLC in which the two Defendants owned membership interests was joined to enforce the judgment. Section 30-20 of the Illinois LLC Act does not preclude the prejudgment attachment procedures provided for in Section 4-101 of Code of Civil Procedure, because the Act plainly and explicitly confines itself to postjudgment collection procedures. Prejudgment attachment procedures in the Code are available to a potential judgment creditor to preserve a debtor-member's distributional interests in an LLC, and once a judgment is entered and a charging order is obtained, the order relates back to the date of the prejudgment attachment order for purposes of lien priority. (CHAPMAN and SPOMER, concurring.)

Defendant, as Secretary/Treasurer of family corporation, and as power of attorney for her father, signed lease agreement with her boyfriend, and signed promissory note for $450,000 as compensation a third party had previously performed for company. Note stated it was lien upon all assets of company. Note's lien improper, because it was not pursuant to Board authorization via resolution, thus secretary/treasurer not authorized to make note, and summary judgment to plaintiffs proper.

Court properly granted bank's motion to strike affirmative defense to apartment complex foreclosure complaint and counterclaim alleging violation of Interest Act. Mortgage note includes provision for interest rate to be increased up to 7.25% over WSJ Prime Index, after default on loan installment, which was 11% and not unreasonable.