Bornstein v. First United

597 N.E.2d 870, 232 Ill. App. 3d 623, 173 Ill. Dec. 896
CourtAppellate Court of Illinois
DecidedJuly 31, 1992
Docket1-90-3368
StatusPublished
Cited by10 cases

This text of 597 N.E.2d 870 (Bornstein v. First United) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bornstein v. First United, 597 N.E.2d 870, 232 Ill. App. 3d 623, 173 Ill. Dec. 896 (Ill. Ct. App. 1992).

Opinion

PRESIDING JUSTICE McNULTY

delivered the opinion of the court:

This action arises from a dispute between the beneficiaries of an Illinois land trust over the power to direct the land trustee. On appeal, we will consider whether the trial court correctly ruled that beneficiary Nathan Grossgold acted improperly in revoking the power of direction given to beneficiary Melvin Bornstein but that the trustee, First Chicago Trust Company, acted properly in refusing to honor Bornstein’s power of direction. We will also consider whether the trial court properly assessed to Grossgold the attorney fees owed to the trustee.

The relevant facts follow. In 1969, plaintiffs Melvin Bornstein and Roy Tosch purchased approximately 116 acres of vacant real property in McHenry County, Illinois, known as Ridgewood Estates. In 1970, defendant Nathan Grossgold purchased one-sixth interest in the Ridgewood Estates property from Bornstein. On February 21, 1972, Grossgold, Bomstein and Tosch entered into a trust agreement forming land trust No. 241 at Mount Prospect State Bank, to hold title to the real property. First Chicago Trust Company later succeeded Mount Prospect Bank as trustee and is the current trustee. The trust agreement vests the power of direction in the trust beneficiaries.

On February 21, 1975, Grossgold, Bornstein and Tosch executed a power of direction, authorizing Bornstein to act as “their sole agent with the power of direction to conduct business for the benefit of the beneficiaries.” All parties acknowledge that this 1975 power of direction was revocable.

On March 1, 1978, Grossgold collaterally assigned his beneficial interest in the land trust to the Barmel Pension Trust Fund and Bar-mel Profit Sharing Trust Fund (the Barmel Funds) to secure payment of a loan from the Barmel Funds. Bornstein was trustee of Barmel Funds. The Barmel Funds and Grossgold executed a loan agreement providing that Grossgold would execute a power of direction that would enable Bornstein to “withdraw from any proceeds of Ridge-wood Station due and owing to [Grossgold], the sums of $70,000 plus future advances, plus interest, until paid in full.” The loan agreement also provided that Barmel Funds would reassign Grossgold’s one-sixth beneficial interest to him upon payment of the loan obligation. To give Bornstein this power of direction, the parties executed an assignment which contained the following language:

“This assignment is being made as and for collateral security only. The power of direction shall be vested in Melvin S. Born-stein on behalf of assignees, until the obligation secured by this assignment is paid in full.”

Copies of the loan agreement and assignment were duly lodged with the trustee on March 8, 1978. The record reveals that while the loan has not been repaid, Grossgold is not in default.

Grossgold claims that in early 1989, while preparing his tax returns, he learned that he had incurred capital gains on transactions involving the trust property of which he had been completely unaware. He began an investigation into Bornstein’s activities. The trustee, at Grossgold’s request, furnished Grossgold with a list of transactions in the trust property. The list of transactions showed several conveyances of trust property out of the trust and to Bornstein and Tosch individually. Grossgold asserts he had no knowledge of any of these transactions.

On December 14, 1989, Grossgold wrote to First United Trust Company and revoked his February 21, 1975, authorization to Born-stein to exercise the power of direction for the land trust. Grossgold requested that he receive written notice of all future transactions.

On December 26, 1989, Bornstein submitted a direction to convey to First United Trust Company requesting that the trustee deed the corpus of the trust to Melvin Bornstein and Roy Tosch. This direction to convey was executed by Bornstein and Tosch, as well as Barbara Bornstein, Bornstein’s spouse. It was not executed by Grossgold.

In accordance with Grossgold’s December 14, 1989, letter, First United Trust Company notified Grossgold that it had received this direction to convey from Bornstein. Upon receipt of this notice from the trustee, Grossgold objected to this conveyance of the land trust assets to Bornstein and Tosch individually. On January 2, 1990, Grossgold notified the trustee of his objection by stating that:

“This letter will serve to advise your bank that *** Bornstein and Tosch are converting property from the above Trust without my knowledge and consent, which includes my beneficial ownership. I have no knowledge, books or records of this transaction, except for your notification, nor am I advised of the disposition of any of its proceeds ***.
You are hereby directed not to convey any property of the Trust to *** Bornstein and Tosch in respect to their ‘Direction to Convey’ dated December 26,1989.”

The trustee, by letter of January 9, 1990, acknowledged Grossgold’s objection and indicated it would take no further action until the dispute between the beneficiaries was resolved.

On January 30, 1990, plaintiffs Bornstein, Tosch and the Barmel Funds brought this suit, seeking a declaratory judgment, injunctive relief and damages against First Chicago and Grossgold. In count I, plaintiffs sought a declaratory judgment compelling the trustee to honor Bornstein’s power of direction. In count II, plaintiffs requested a judgment for damages against the trustee for its refusal to honor Bornstein’s power of direction and against Grossgold for the steps he took to prevent the trustee from so acting.

On March 12, 1990, First Chicago filed a complaint for inter-pleader pursuant to section 2 — 409 of the Code of Civil Procedure. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 409.) The trustee offered to deliver the corpus of the trust to the trial court or elsewhere as it would direct, and prayed that it be discharged from liability to the beneficiaries for all claims arising therefrom. The trustee also sought reimbursement from the beneficiaries for its attorney fees and litigation costs.

On April 11, 1990, First Chicago filed its motion for summary judgment as to the issues of interpleader and damages. On July 19, 1990, the trial court granted First Chicago’s motion as to the issue of interpleader and instructed the trustee to continue to hold the trust property pending further order of the court. The trial court reserved ruling on the issues of damages and attorney fees until it resolved the dispute among the beneficiaries at trial.

At a bench trial, Bornstein and Tosch testified that they undertook a plan to improve the trust property. In 1989, Bornstein and Tosch purchased three additional acres at a cost of $20,000. They placed the title to this property in the land trust, along with title to the other approximately 117 acres. Grossgold did not contribute any money for the purchase of this additional land.

Bornstein testified that pursuant to the plan of improvement, the trust property was divided into separate lots or phases. Each phase was to be developed and sold individually as improved property.

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Bluebook (online)
597 N.E.2d 870, 232 Ill. App. 3d 623, 173 Ill. Dec. 896, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bornstein-v-first-united-illappct-1992.