BEFORE THE HEARING BOARD
OF THE
ILLINOIS ATTORNEY REGISTRATION
AND
DISCIPLINARY COMMISSION

In the Matter of:

ROBERT A. SUDING, JR.,

Attorney-Respondent, 

No. 6270688.

 

Commission No.  09 CH 14

FILED -  APRIL 8, 2009

COMPLAINT

Jerome Larkin, Administrator of the Attorney Registration and Disciplinary Commission, by his attorney, Gina M. Abbatemarco, pursuant to Supreme Court Rule 753(b), complains of Respondent, Robert A. Suding, Jr., who was licensed to practice law in the State of Illinois on November 4, 1999, and alleges that Respondent has engaged in the following conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute:

1. In or about July 1997, Respondent agreed to lend Arlene Potonak-Ajello ("Arlene") $20,000. At the time, Respondent and Arlene were dating.

2. On or about July 1, 1997, Respondent prepared, and Arlene executed, a Promissory Note ("1997 Promissory Note") in which Arlene agreed to make 35 monthly principal and interest installment payments of $622.12, due to Respondent on the first of every month, with a final payment of any remaining sums due on August 1, 2000. The note specified that interest would be calculated at 7.5% annually, unless the payments were not made as stated, in which case the interest would be calculated at 10.5%. The note further specified that Respondent was granted a security interest in Arlene's car, a 1992 Toyota Landcruiser, as security for payment on the note.

3. On October 15, 1999, Respondent and Arlene were married.

4. On February 9, 2006, Arlene initiated dissolution proceedings against Respondent. The matter was entitled, In re the Marriage of Ajello v. Suding, case no. 06 D 1457 in the Circuit Court of Cook County. The matter was assigned to Judge Karen G. Shields.

5. On or about March 23, 2006 Arlene served upon Respondent a request for answers to interrogatories from Respondent.

6. On June 29, 2006, Respondent assigned his rights in the 1997 Promissory Note, described in Paragraph Two, above, to his cousin Stephen Newman ("Newman") in exchange for Newman's payment of $5,000. On or about that date, Newman paid Respondent $5,000.

7. At the time Respondent assigned his rights in the promissory note to Newman, Arlene owed approximately $14,886.63 in principal under the note (reflecting payments of $5,113.37 made by Arlene between July 1997 and June 1998) plus $7,032 in interest (at a rate of 10.5% per year since June 1998, when Arlene made her last payment).

8. As evidence of the assignment of the note to Newman, Respondent prepared, and both he and Newman signed, a document entitled, "Assignment of A Contract For Value," in which it was stated:

"I, Robert A. Suding ("Suding"), with present intent, immediately transfer (Assign) for $5,000 (five thousand dollars) consideration received today; June 20, 2006, all my rights, all my interests, and all my delegable duties (collectively referred to as "all rights"), completely and irrevocably, under a fixed rate installment promissory note contract ("Contract") dated July 1, 1997, between Robert A. Suding and Arlene M. Potonak, ("Arlene") to Mr. Stephen Newman. ("Mr. Newman")."

9. At no time did Respondent notify Arlene that he had assigned his rights in the 1997 Promissory Note to Newman.

10. On or about November 6, 2006, Respondent tendered his answers to interrogatories to the court in case no. 06 D 1457, wherein he answered questions regarding whether he was owed any money or property and provided a copy of the 1997 Promissory Note. Respondent attested to the following answers:

"Are you owed any money or property? If so, state:

ANSWER: Yes

(a) The name and address of the debtor:
ANSWER: Arlene Potonak-Ajello

(b) The form of the obligation;
ANSWER: Promissory Note

(c) The date the obligation was initially incurred;
ANSWER: July 1, 1997
See Produced Promissory Note file

(d) The amount of the original obligation;
ANSWER: $20,000

(e) the purpose or consideration for which the obligation was incurred;
ANSWER: $20,000 Installment Loan

(f) The description of any security connected with the obligation;
ANSWER: See produced documentation w/ Promissory Note File

(g) The rate of interest on the obligation;
ANSWER: 7.5%
See produced documentation w/ Promissory Note File

(h) The present unpaid balance of the obligation;
ANSWER:
$21,918.95
$14,886.63 remaining principal plus
$7,032.00 10.5% interest per annum on remaining
balance calculated since default on 5/5/97

(i) The dates and amounts of installment payments; and
ANSWER: First payment due 9/1/97
Default on June 1988 {sic 1998} payment.
See produced documentation w/ Promissory Note File

(j) The date of maturity of the obligation
ANSWER: See produced documentation w/ Promissory Note File"

11. On or about November 13, 2006, Respondent and Arlene entered into a marital settlement agreement in relation to case no. 06 D 1457. As part of the marital settlement agreement, Respondent and Arlene specifically negotiated that Arlene would agree to accept $10,000 less than she otherwise would have agreed to accept from their marital estate proceeds in return for the release of the 1997 Promissory Note and claims related to it.

12. On November 14, 2006, Judge Shields entered a judgment for dissolution of marriage in case no. 06 D 1457. The marital settlement agreement, referenced in paragraph eleven, above, was approved by the judge and incorporated into the Judgment.

13. Respondent's answers to the interrogatories set forth in paragraph ten, and statements made in agreeing to the terms of the marital settlement agreement and judgment for dissolution of marriage in case no. 06 D 1457 as they pertained to the 1997 Promissory Note, were false, and Respondent knew they were false, because as of June 29, 2006, Respondent no longer had any rights to the 1997 Promissory Note, as he assigned them to Newman prior to the negotiations and finalization of the dissolution of marriage in case no. 06 D 1457.

14. On or about March 8, 2007, Newman filed a complaint against Arlene for payment on the 1997 Promissory Note. The matter was entitled, Newman v. Ajello, case no. 07 M1 118500, in the Circuit Court of Cook County.

15. On or about March 30, 2007, Arlene filed a petition for post judgment relief in case no. 06 D 1457 asking that the court reform the marital settlement agreement and judgment for dissolution of marriage to reflect that Respondent had transferred the 1997 Promissory Note without Arlene's knowledge, prior to the negotiations in relation to the marital settlement agreement, and further asking the court to order Respondent to pay Arlene's attorneys' fees for her defense in case no. 07 M1 118500.

16. On June 28, 2007, Judge Shields entered a 3-page order in case no. 06 D 1457 in which she found, in part, that:

"Robert Suding committed a fraud upon Arlene Suding and this court in serving answers to interrogatories stating that as of 11/13/06 he was the holder of a $20,000 promissory note from Arlene Ajello when in fact on or about June 29, 2006 Robert Suding assigned his rights in this $20,000 note to Stephan Newman."

Judge Shields ordered Respondent to pay $3,127.50 in attorneys fees Arlene incurred in bringing her petition for post judgment relief, and that Respondent indemnify Arlene for costs and expenses in defending herself in case no. 07 M1 118500

17. By reason of the conduct described above, Respondent has engaged in the following misconduct:

  1. conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of Rule 8.4(a)(4) of the Illinois Rules of Professional Conduct;

  2. conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(a)(5) of the Illinois Rules of Professional Conduct; and

  3. conduct which tends to defeat the administration of justice or bring the courts or the legal profession into disrepute, in violation of Supreme Court Rule 770.

WHEREFORE, the Administrator requests that this matter be assigned to a panel of the Hearing Board, that a hearing be held, and that the panel make findings of fact, conclusions of fact and law, and a recommendation for such discipline as is warranted.

Gina M. Abbatemarco
Counsel for the Administrator
One Prudential Plaza
130 East Randolph Drive, Suite 1500
Chicago, Illinois 60601-6219
Telephone: (312) 565-2600
Respectfully submitted,

Jerome Larkin, Administrator
Attorney Registration and
Disciplinary Commission

By:   Gina M. Abbatemarco