2017 IL App (1st) 160588 No. 1-16-0588 Opinion filed June 20, 2017
Second Division
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
3432 WEST HENDERSON BUILDING, LLC, as ) Successor in Interest to Citizens Bank & Trust ) Company of Chicago, ) ) Plaintiff-Appellee and Cross-Appellant, ) ) v. Appeal from the Circuit Court ) of Cook County. ) WIESLAW GIZYNSKI, ) ) Defendant-Appellant and Cross-Appellee Nos. 09 CH 20706 & ) 13 L 50596 (consolidated) ) and ) ) NORTHEASTERN ILLINOIS UNIVERSITY, The Honorable ) Carl Anthony Walker, ) Plaintiff Judge, presiding. ) ) v. ) ) WIESLAW GIZYNSKI, ) ) Defendant.
PRESIDING JUSTICE HYMAN delivered the judgment of the court, with opinion. Justices Pierce and Mason concurred in the judgment and opinion. 1-16-0588
OPINION
¶1 The underlying case involved default on a note and mortgage. The issues defendant
Wieslaw Gizynski raises pertain to the amount and calculation of the trial court’s award of
attorney’s fees 1 and interest on the fees. On cross-appeal, 3432 West Henderson Building, LLC
(Henderson Building), contends the trial court erred in denying its motion for leave to file a fee
petition regarding Gizynski’s motion to reconsider. Because we find the trial court properly
calculated Henderson Building’s attorney’s fees, including default interest, and was not obligated
to hold an evidentiary hearing on the fee request, we affirm the order and its denial of the motion
to reconsider. But as to the trial court’s denying Henderson Building’s request to file a fee
petition for the time spent responding to the motion to reconsider, we remand for further
consideration as well as consideration of fees incurred in this proceeding.
¶2 BACKGROUND
¶3 Gizynski owned commercial property at 3432 West Henderson Street since 1994. In
April 2005, he signed a note for a $1.4 million loan from Citizens Bank & Trust Company of
Chicago. A first mortgage on the property secured the note. The following month the parties
amended the terms so that in the event of default, the interest rate would increase to a total
interest rate of 13.5%. In February 2009, Gizynski defaulted on the loan, and Citizens Bank filed
a foreclosure proceeding. While the foreclosure case was pending, Henderson Building acquired
the promissory note and mortgage, substituted itself as the successor real party in interest, and
filed an amended verified complaint.
1 Throughout this opinion we deviate from the Style Manual for the Supreme and Appellate Courts of Illinois (4th ed. 2012) by using “attorney’s fees” instead of “attorney fees.” As noted by legal grammarian and author of the leading books on legal writing, Bryan Garner, in A Dictionary of Modern Legal Usage 91 (2d ed. 1995), “attorney’s fees” is the prevalent form. Moreover, the Illinois Mortgage Foreclosure Act, which is discussed in this opinion, refers to “attorney’s fees.” See 745 ILCS 5/15-1510 (West 2016). -2- 1-16-0588
¶4 In January 2013, Northeastern Illinois University (NEIU) filed a petition to intervene in
the foreclosure case to exercise eminent domain over the property. NEIU filed a complaint for
condemnation and, ultimately, acquired the property for $5.2 million. A joint motion for entry of
stipulation of value and an order of judgment vesting fee simple title in NEIU was granted, and
the foreclosure and condemnation cases were consolidated. NEIU deposited the $5.2 million
with the Cook County Treasurer.
¶5 In November 2014, Henderson Building filed a petition for disbursement of funds in the
consolidated case. Henderson Building sought a payoff amount of nearly $2.6 million, which
included (i) unpaid principle balance, (ii) reimbursement of an advance to satisfy property taxes
and liens against the property; (iii) late fees; (iv) attorney’s fees of $108,104.35; and
(v) $1,005,279.21 in accrued interest. The petition attached the affidavit of Gayle Teicher, an
accountant for Henderson Building, stating that the attorney’s fees had been paid or were in the
process of being paid.
¶6 In December 2014, the trial court gave Gizynski until February 4, 2015, to reply to
Henderson Building’s disbursement petition. On February 4, Gizynski sought additional time to
respond, and the trial court gave him until March 3. In the interim, on January 30, Henderson
Building filed supplemental exhibits to its petition, which included an additional $15,868.95 in
attorney’s fees incurred in defending against Gizynski’s reply to its disbursement petition, for a
total payoff amount of $2,657,203.16.
¶7 On March 3, 2015, Gizynski filed his reply raising numerous objections to Henderson
Building’s disbursement request including its assertions that the loan documents were not
originals, Henderson Building incorrectly calculated the payoff amount, Henderson Building was
not obligated to purchase other liens on the property, Henderson Building should not be awarded
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attorney’s fees relating to the condemnation case, and attorney’s fees and real estate taxes should
not be added to principal once the foreclosure case was filed.
¶8 On April 3, 2015, Gizynski’s attorney filed a motion to withdraw, stating that Gizynski
had terminated his service and retained another attorney. Henderson Building filed a response
objecting to the motion to withdraw and asking that it only be granted if a substitute appearance
was filed and if the court did not delay the scheduled May 6, 2015, hearing on its disbursement
petition. The trial court denied the motion to withdraw at that time but continued the hearing on
the disbursement petition until May 20, 2015. (The record does not indicate a final ruling on the
motion to withdraw, and the same attorney is now representing Gizynski on appeal.)
¶9 On May 15, 2015, Henderson Building filed supplemental exhibits in support of its
disbursement petition, showing additional attorney’s fees of $52,123.52 and a payoff amount of
nearly $2.8 million.
¶ 10 On May 20, 2015, the trial court entered an order granting Gizynski and Henderson
Building until June 10 to submit authority addressing a mortgagee’s right to collect interest up to
satisfaction of a condemnation award. On July 8, Henderson Building filed supplemental exhibits
in support of its petition showing an additional $17,348.41 in attorney’s fees and a payoff
amount of $2,826,316.02.
¶ 11 On September 24, 2015, the trial court entered an opinion and order granting Henderson
Building’s disbursement petition. The trial court stated that the mortgage expressly added to the
balance of the note various expenses the lender was required to pay, namely “taxes, liens,
security interest, encumbrances and other claims” levied or placed on the property, or advance
funds otherwise necessary “for insuring, maintaining and preserving the Property.” Henderson
Building paid property taxes and discharged four receiver’s liens on the property and included
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those amounts to the unpaid loan balance. The trial court found that the proper interest rate under
the amended terms was 13.5% from the date of default based on the original 7.5% interest rate
and an additional 6% default rate. The court also found Henderson Building was entitled to late
fees.
¶ 12 In addition, the note and mortgage expressly provided for reimbursement of attorney’s
fees. The note stated that if the borrower fails to pay and the lender hires attorneys to help collect
on the note, the borrower owes the lender its attorney’s fees and expenses whether or not there is
a lawsuit. The mortgage similarly provided, “[i]f Lender institutes any suit or action to enforce
any of the terms of this Mortgage, Lender shall be entitled to recover such sum as the court may
adjudge reasonable as attorneys’ fees at trial and upon any appeal.” Further, the mortgage
provided that “all reasonable expenses Lender incurs that in Lenders’ opinion are necessary at
any time for the protection of its interest or the enforcement of its interest or the enforcement of
its rights shall become a part of the Indebtedness payable on demand and shall bear interest at the
Note rate from the date of the expenditure until paid.”
¶ 13 Analyzing Henderson Building’s attorney’s fees request, the trial court stated:
“Henderson Building’s legal expenses were incurred over a [2½-]year period,
beginning in February of 2012, and involved multiple, protracted actions. Henderson
Building incurred legal expenses in relation to the condemnation action initiated by
NEIU and the subsequent consolidation of those actions. Henderson Building also
incurred attorneys’ fees in relation to a planned UCC sale of an assignment of the
beneficial interest in Gizynski’s land trust, which was necessitated by the slow
progression of the foreclosure proceeding. Henderson Building’s total legal expenses
for all these matters was $108,104.35. *** Those fees are similar to the rates charged
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by firms of similar size and stature engaged in the practices of commercial litigation
with offices located in Cook County, Illinois.”
¶ 14 The trial court rejected Gizynski’s argument that Henderson Building should not be
awarded attorney’s fees relating to the foreclosure consolidated with the condemnation case
because the foreclosure was “unsuccessful and not completed.” The trial court noted that this
claim was unsupported by legal authority and contradicted by the plain language of the note and
mortgage, which did not require a foreclosure to be successful and complete for the lender to be
entitled to attorney’s fees. Also rejected was Gizynski’s assertion that Henderson Building did
not show that the attorney’s fees had been paid, noting that Henderson Building submitted the
affidavit of its accountant averring that the attorney’s fees were paid or in the process of being
paid. Lastly, the trial court rejected Gizynski’s argument that Henderson Building’s attorney
added no value to the case: “Whether any value was added is irrelevant to the analysis. What
matters is whether the attorneys’ fees were reasonable and whether Henderson Building deemed
the attorneys’ services necessary.”
¶ 15 The trial court approved Henderson Building’s initial request of $108,104.35 in
attorney’s fees and joined it to the principal, which accrued interest at a rate of 13.5% under the
default interest provision. By a separate order, the trial court directed Henderson Building to
submit a final payoff amount including interest. On the issue of the attorney’s fees, the trial judge
said that “the attorney fees need some adjustment and may need some further review. *** [F]ees
need to be reasonable. So, I still need to do further review of those once you come up with a final
number.”
¶ 16 As noted, while its petition was pending, Henderson Building filed supplemental exhibits
showing additional attorney’s fees incurred, and on September 25, 2015, it filed final
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supplemental exhibits reflecting a total payoff amount of $2,885,837.13, which included an
additional $5785.50 in attorney’s fees for a total of $199,229.78, and the continual accrual of
interest. On October 1, 2015, the trial court directed the Cook County Treasurer to disburse
$2,885,837.14 to Henderson Building.
¶ 17 Gizynski filed a motion to reconsider the disbursement order arguing (i) default interest
should not have been applied to the attorney’s fee award, (ii) the trial court failed to make a
written finding regarding the appropriateness of the attorney’s fees incurred after Henderson
Building filed its petition, and (iii) the court failed to hold an evidentiary hearing regarding the
appropriateness of the attorney’s fee award. In its reply, Henderson Building asked the court for
leave to file a fee petition for attorney’s fees it incurred in defending the motion. The trial court
denied the motion to reconsider and Henderson Building’s request for additional attorney’s fees.
¶ 18 Gizynski appeals the disbursement order and the denial of its motion to reconsider.
Henderson Building cross-appeals, asking us to reverse the trial court’s denial of its request for
leave to file a fee petition relating to the motion to reconsider. Henderson Building asks us to
award it reasonable attorney’s fees and expenses incurred in this appeal and remand for a hearing
on the reasonableness of attorney’s fees in the motion to reconsider.
¶ 19 ANALYSIS
Initially, we note that Gizynski’s brief fails to include appropriate references to the pages
of the appellate record in its statement of facts and its argument section in violation of Illinois
Supreme Court Rule 341(h)(6), (7) (eff. Feb. 6, 2013). It is within our discretion to strike a brief
and dismiss an appeal for failure to comply with the rules. Parkway Bank & Trust Co. v. Korzen,
2013 IL App (1st) 130380, ¶ 10. Because the brief is adequate in most respects and the
deficiencies do not hinder our ability to review the issues, we will not strike it. See Spangenberg
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v. Verner, 321 Ill. App. 3d 429, 432 (2001) (declining to strike brief where it complied with rules
in other ways and none of violations were so flagrant as to hinder or preclude review).
¶ 20 Attorney’s Fees
¶ 21 Turning to the merits, Gizynski argues that the trial court (i) should not have calculated
the interest on the attorney’s fees at the default rate of 13.5%, as the fees were not part of the
principal indebtedness and the Eminent Domain Act does not permit interest on attorney’s fees;
(ii) should not have awarded attorney’s fees because Henderson Building was not successful in
the foreclosure case; (iii) improperly awarded Henderson Building more than $199,000 in
attorney’s fees rather than the $108,104.35 it was owed; and (iv) should have held an evidentiary
hearing on the fee request and required Henderson Building to submit time sheets to support the
computerized billing statements.
¶ 22 Attorney’s fees in mortgage foreclosure proceedings are governed by section 15-1510 of
the Illinois Mortgage Foreclosure Law (Foreclosure Law) (735 ILCS 5/15-1510 (West 2014)).
That section permits an award of reasonable attorney’s fees and costs “to the defendant who
prevails in a motion, an affirmative defense or counterclaim, or in the foreclosure action.” 735
ILCS 5/15-1510(a) (West 2014). Section 15-1510(b) provides that “[a]ttorneys’ fees and other
costs incurred in connection with the preparation, filing or prosecution of the foreclosure suit
shall be recoverable in a foreclosure only to the extent specifically set forth in the mortgage or
other written agreement between the mortgagor and the mortgagee or as otherwise provided in
this Article.” 735 ILCS 5/15-1510(b) (West 2014). The statute does not abrogate the contractual
terms of the mortgage in the assessment of attorney’s fees. 735 ILCS 5/15-1510(a) (West 2014).
Generally, we review a trial court’s award of attorney’s fees under the deferential abuse of
discretion standard. Chicago Title & Trust Co v. Chicago Title & Trust Co., 248 Ill. App. 3d
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1065, 1072 (1993). Here, we must interpret the language of the mortgage and note, and we thus
apply the de novo standard of review, which we apply to contracts. Cathay Bank v. Accetturo,
2016 IL App (1st) 152783, ¶ 26.
¶ 23 Gizynski first contends the trial court erred in adding the attorney’s fees to the principal,
which accrued interest at a default rate of 13.5%. Gizynski argues that section 15-1510(b) of the
Foreclosure Law controls and does not permit adding attorney’s fees to the principal. As noted,
section 15-1510 expressly states that the statute does not abrogate the terms of the mortgage;
thus, we must look to those sections of the loan documents addressing attorney’s fees. Gizynski
contends the default rate of 13.5% applies only to the principal indebtedness and that under the
language of the mortgage and the note, “indebtedness” does not include attorney’s fees. The
mortgage broadly defines indebtedness: “any amounts expended or advanced by Lender to
discharge Grantor’s obligations or expenses incurred by lender to enforce Grantor’s obligations
under this Mortgage, together with interest on such amounts as provided in this Mortgage.” The
mortgage further states that “all reasonable expenses Lender incurs that in Lenders’ opinion are
necessary at any time for the protection of its interest or the enforcement of its interest or the
enforcement of its rights shall become a part of the Indebtedness payable on demand and shall
bear interest at the Note rate from the date of the expenditure until paid.” And it states that the
lender’s attorney’s fees for protecting its interest “shall become a part of the Indebtedness
payable on demand and shall bear interest at the Note rate from the date of the expenditure until
repaid.” So the loan documents permit attorney’s fees to be added to the principal indebtedness,
which under the changes in terms of agreement, accrued interest at the default rate of 13.5%.
¶ 24 Gizynski also contends that Henderson Building should not be awarded attorney’s fees,
as Henderson Building abandoned the foreclosure case by having failed to respond to his motion
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to dismiss the fourth amended complaint for foreclosure, and should not be awarded attorney’s
fees incurred in pursuing the foreclosure action. As the trial court noted, “[n]either the note nor
mortgage require a legal action to be successful and completed for the lender, Henderson
Building, to recover reasonable attorneys’ fees.” The note provides for recovery of attorney’s
fees “whether or not there is a lawsuit.” Similarly, the mortgage provides for the lender to
recover reasonable attorney’s fees “whether or not any court action is involved.” As a result, we
reject Gizynski’s contention that the trial court could award Henderson Building attorney’s fees
only in the event the foreclosure case went to judgment.
¶ 25 Gizynski next asserts that rather than apply the Foreclosure Law or look to the terms of
the mortgage in analyzing the attorney’s fee issue, we should look to the Eminent Domain Act.
Specifically, Gizynski contends that after fee title was transferred to NEIU, the foreclosure case
ended and the matter became a condemnation case governed by the Eminent Domain Act. As
such, the trial court may not award interest on attorney’s fees. We disagree.
¶ 26 While the consolidation of the cases and the transfer of title effectively halted the
foreclosure case, Henderson Building retained its interest in the property through the mortgage
and was forced to incur legal expenses to protect that interest in response to claims by Gizynski.
As the trial court noted, “the very arguments Gizynski offered in an attempt to oppose a
disbursement” often “proffered without any legal support or basis” “were claims that would
materially affect Henderson Building’s interest in the Property or the proceeds thereof.”
¶ 27 Moreover, the condemnation provision in the mortgage permits Henderson Building to
recover its attorney’s fees. Specifically, the provision titled “Application of Net Proceeds” states:
“If all or any part of the Property is condemned by eminent domain proceedings or by
any proceeding or purchase in lieu of condemnation, Lender may at its election
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require that all or any portion of the net proceeds of the award be applied to the
Indebtedness or the repair or restoration of the Property. The net proceeds of the
award shall mean the award after payment of all reasonable costs, expenses and
attorneys’ [sic] fee incurred by Lender in connection with the condemnation.”
¶ 28 As noted, “indebtedness” includes attorney’s fees the lender incurs in protecting its
interest or enforcing its interest or rights under the mortgage. After filing its disbursement
petition in November 2014 until the trial court’s September 24 order, Henderson Building
incurred attorney’s fees enforcing its rights under the mortgage against numerous claims by
Gizynski including that (i) the mortgage documents were not originals, (ii) Henderson Building
was not legally obligated under the mortgage to purchase liens that affected the property,
(iii) Henderson Building is not entitled to the interest requested because it acquired the mortgage
and note from a company not entitled to do business in Illinois, and (iv) late fees owed under the
mortgage were improperly calculated. Thus, as Henderson Building incurred these attorney’s
fees while protecting its interests under the mortgage, they were properly counted as part of the
indebtedness and could be paid from the net proceeds of the condemnation proceeding. Nothing
in the Eminent Domain Act prevents parties from contractually agreeing to pay interest on
attorney’s fees or precludes Henderson Building from enforcing that agreement. The trial court
properly looked to the mortgage in assessing attorney’s fees.
¶ 29 Gizynski next contends that in its September 24, 2015 order, the trial court awarded
Henderson Building $108,104.35 in attorney’s fees but that its ultimate award included
attorney’s fees totaling more than $199,000. Gizynski suggests Henderson Building acted
improperly by trying to “hide” an additional $91,000 in fees in the final disbursement order. This
assertion is without merit.
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¶ 30 In its September 24, 2015, opinion and order, the trial court noted that Henderson
Building’s attorney’s fees as set forth in its original petition totaled $108,104.35, “[t]o date.”
And, in a separate order the same date, the trial court instructed that it needed to undertake
additional review of the attorney’s fees owed and asked Henderson Building to submit a final
payoff amount including interest. In court, the trial judge stated that the attorney’s fees needed
adjustment and possibly further review. “[F]ees need to be reasonable,” the trial court said. “So, I
still need to do further review of those once you come up with a final number.” With leave of
court, Henderson Building submitted supplemental exhibits in support of its final payoff
statement, listing attorney’s fees in the amount of $199,229.78. Thus, Gizynski’s contention that
Henderson Building acted improperly or that the trial court had no basis for its attorney’s fee
award is erroneous.
¶ 31 Gizynski also contends Henderson Building failed to present sufficient documentation to
support the attorney’s fees award. Again we disagree. The record shows that as of November 18,
2014, Henderson Building requested $108,104.35 in attorney’s fees. After that date, Henderson
Building submitted multiple supplemental exhibits showing attorney’s fees incurred since that
date, with detailed billing statements. For instance, on January 23, 2015, Henderson Building
filed a supplemental exhibit with billing records showing that it had incurred an additional
$15,868 in attorney’s fees for a total of $123,972.35. Henderson Building again supplemented its
petition on May 15, 2015, with an exhibit showing that it had incurred an additional $52,123.52
in attorney’s fees, and on July 8, 2015, showing an additional $17,348.41 in attorney’s fees. As
noted, on September 25, 2015, Henderson Building submitted its final payoff statement and
supporting documents, with an additional attorney’s fees amount of $5785.50, for a total in
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attorney’s fees of $199,229.78. All of these supplemental exhibits include detailed billing
statements to permit the trial judge to determine the reasonableness of the fees charged.
¶ 32 Without supporting authority, Gizynski proposes that Henderson Building should have
been required to submit the fee agreement and a litigation budget. The trial court had sufficient
documentation to assess Henderson Building’s attorney’s fee petitions and did not err in its
calculation.
¶ 33 Evidentiary Hearing
¶ 34 Gizynski believes the trial court committed reversible error by failing to hold an
evidentiary hearing on Henderson Building’s attorney’s fee request. Again, Gizynski presents no
authority. In any event, this court has held that trial courts faced with fee petitions are not
required to hold evidentiary hearings as a matter of course. Young v. Alden Gardens of
Waterford, LLC, 2015 IL App (1st) 131887, ¶ 113 (fee petition warrants evidentiary hearing only
when response of party to be charged with paying award raises issues of fact that cannot be
resolved without further evidence); see also Raintree Health Care Center v. Illinois Human
Rights Comm’n, 173 Ill. 2d 469, 495 (1996) (stating “courts frequently award attorney fees ***
without holding evidentiary hearings”). The person asking for fees and costs has the burden of
proof. Fried v. Barad, 187 Ill. App. 3d 1024, 1029 (1989). Where proof can be made on the basis
of pleadings or trial evidence, an additional hearing is not required. Id.
¶ 35 Next, Gizynski argues, relying on Aliano v. Sears, Roebuck & Co., 2015 IL App (1st)
143367, that the trial court’s award of attorney’s fees constituted reversible error because
Henderson Building did not support its request for fees with the “underlying time sheets.”
Gizynski failed to raise this issue before the trial court; it is forfeited. Cambridge Engineering,
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Inc. v. Mercury Partners 90 BI, Inc., 378 Ill. App. 3d 437, 453 (2007) (arguments not raised
before trial court are forfeited).
¶ 36 Lastly, we reject Gizynski’s insistence that the record does not support Henderson
Building having paid the attorney’s fees. As noted, Henderson Building’s petition for
disbursement included the affidavit of its accountant stating that the attorney’s fees had been
paid or were in the process of being paid. Nothing else in the record supports a finding that this is
false or that the fees have not been paid.
¶ 37 Cross-Appeal for Attorney’s Fee Petition
¶ 38 On cross-appeal, Henderson Building asks us to reverse the denial of its motion for leave
to file a petition for fees incurred in defending against Gizynski’s motion to reconsider and asks
that the case be remanded for consideration of the reasonableness of attorney’s fees it requested
in defending that motion and in this appeal.
¶ 39 As noted, a trial court has broad discretion in awarding attorney’s fees, and its decision
will not be reversed absent an abuse of discretion. Richardson v. Haddon, 375 Ill. App. 3d 312,
314 (2007). A court may consider a multitude of factors, including the nature of the case, its
difficulty level, the skill and standing of the attorney, the degree of responsibility required, the
usual and customary charges for similar work, and the connection between the litigation and the
fees charged. Id. at 314-15. In Richardson, we found that the trial court abused its discretion by
summarily disregarding a fee petition, stating that “the trial court should either award those fees
that it decides are reasonable or clearly state the reasons for the particular reductions” instead of
denying the attorney’s fee petition in entirely. Id. at 316. The trial court denied Henderson
Building’s request for leave to file a fee petition without explanation. We must reverse that part
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of its order and remand for reconsideration and an explanation as to why Henderson Building is
not entitled to request reasonable attorney’s fees in defending Gizynski’s motion to reconsider.
¶ 40 Henderson Building also asks for attorney’s fees for defending this appeal, noting that the
mortgage provides for the recovery of attorney’s fees and costs for “appeals, and any anticipated
post-judgment collection services.” Similarly, the note requires Gizynski to pay the lender’s
attorney’s fees and legal expenses, “whether or not there is a lawsuit, including *** appeals.”
Henderson Building also points out that this court has held that attorney’s fees incurred on
appeal of a foreclosure case are recoverable. See Standard Bank & Trust Co. v. Callaghan, 215
Ill. App. 3d 76, 83 (1991) (holding provision in note intended to encompass all reasonable
attorney’s fees resulting from foreclosure proceedings, including fees incurred in seeking
deficiency judgment and for appeals). On remand, the trial court should consider the
reasonableness of Henderson Building’s attorney’s fees in this appeal.
¶ 41 Affirmed in part, reversed in part, and remanded for further proceedings.
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