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violated the rule that both spouses must sign conveying interest in entireties property, the refi mortgage
could not be foreclosed upon, the panel said. The court left open the possibility that the defective mortgage
could be reformed due to a “mutual mistake” in its preparation, however.

Editor’s Note: Parille is not inconsistent with OneWest Bank FSB v. Cielak, 2016 IL App (3d) 150224,
discussed in Sharp Thinking No. 134 (October 2016). In Cielak, both spouses had signed the subject
mortgage of the entireties property.
Appellate Court Enforces Confession Clause

A confession-of-judgment clause in a promissory note is not made invalid just because the note contains
a variable interest rate, a panel in the Illinois Appellate Court in Chicago has ruled.

Acting on an interlocutory appeal of a certified question from the Circuit Court of
Cook County, the panel held that the note in question did not run afoul of Illinois’
prohibition of use of such “cognovit” clauses for “uncertain and unliquidated” sums.
Cole v. Davis, 2016 IL App (1st) 152716.

Interpreting prior cases, the court said the certain-and-liquidated requirement
addressed the principal of the loan at the time the note was signed. If that was fixed,
Illinois law permitted the note to have a variable interest rate without running afoul of
the rule on uncertain and unliquidated sums, the court said.

Consideration Presumed For Negotiable Note

A plaintiff suing upon a negotiable note need not present any evidence of consideration to establish a
prima facie case, a panel of the Appellate Court’s Second District has ruled.

Acting in Vician v. Vician, 2016 IL App (2d) 160022, the panel said consideration for a negotiable note
is presumed and the burden is on the defendant to show its absence. Thus the alleged failure of the plaintiffs
to show in their case-in-chief that defendants had in fact received the consideration was not fatal, the court
said.

Guarantor Not Liable For Interest On Judgment

A guarantor who has guaranteed payment of interest on a promissory note does not thereby guarantee
payment of interest on a judgment on that note, a panel of the Appellate Court in Chicago has ruled.

“A guarantor is only liable for that which he has guaranteed,” the court said in Koenig & Strey GMAC
Real Estate v. Renaissant 1000 South Michigan I, LP, 2016 IL App (1st) 161783. “When . . . the terms of a
guaranty contract are unambiguous, the liability of a guarantor cannot be extended by implication or
construction beyond the terms of the guaranty contract.”

The court reasoned that upon entry of judgment on the note, “the note ceases to exist. Interest on a
judgment is not part of the judgment; rather, it is purely statutory in origin.”

Brenda/Sharp Thinking/#138.pdf
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