Burnhope v. National Mortgage Equity Corp.

567 N.E.2d 356, 208 Ill. App. 3d 426, 153 Ill. Dec. 398, 1990 Ill. App. LEXIS 1944
CourtAppellate Court of Illinois
DecidedDecember 27, 1990
Docket1-90-0143
StatusPublished
Cited by11 cases

This text of 567 N.E.2d 356 (Burnhope v. National Mortgage Equity Corp.) 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
Burnhope v. National Mortgage Equity Corp., 567 N.E.2d 356, 208 Ill. App. 3d 426, 153 Ill. Dec. 398, 1990 Ill. App. LEXIS 1944 (Ill. Ct. App. 1990).

Opinion

JUSTICE LINN

delivered the opinion of the court:

This action for declaratory judgment was filed by a group of underwriters and insurance companies (collectively referred to as Lloyd’s London or plaintiffs). They seek a determination that defendants National Mortgage Equity Corporation (NMEC) and David A. Feldman, NMEC’s president and majority shareholder, are not entitled to fidelity insurance coverage pursuant to certain “finance company blanket bonds.” Alternatively, plaintiffs seek a declaration that if coverage under the bonds exists, defendant Arthur J. Gallagher & Co. is liable to and must indemnify plaintiffs for whatever amounts plaintiffs must pay in losses to third parties. The merits of this declaratory judgment action are not in issue, however; instead, we are asked to determine whether the Illinois courts have personal jurisdiction over the defendants.

For the reasons that follow, we affirm the trial court’s determination that it has jurisdiction and remand for further proceedings.

Background

The underlying controversy arises out of NMEC’s organization of pools of secured real estate loans and, in connection therewith, NMEC’s marketing of “mortgage pass-through certificates” to certain financial institutions. The facts relating to the jurisdictional issues center on NMEC’s procuring of blanket bond coverage insuranee from plaintiffs through an insurance broker, Arthur J. Gallagher & Co., which is located in Rolling Meadows, Illinois.

According to the complaint, plaintiffs are certain underwriters and syndicates at Lloyd’s London, and several additional insurance companies, which collectively issued the finance company blanket bonds that are in issue in this lawsuit. NMEC is a Delaware corporation with its principal place of business located in Palos Verdes Estates, California. Feldman, a resident of California, is the president, treasurer, and majority shareholder of the company. Gallagher is an Illinois corporation with its principal place of business in Rolling Meadows.

Defendants NMEC and Feldman appeal from the trial court’s determination that Gallagher acted as their agent or broker in acquiring the bond coverage from plaintiffs and that Gallagher conducted sufficient activities in this State to justify a finding of personal jurisdiction under the Illinois long-arm statute. Ill. Rev. Stat. 1987, ch. 110, par. 2 — 209.

In 1982, NMEC organized pools of real estate loans secured by first or second deeds of trust on residential real estate located in States other than Illinois, primarily in Texas and California. NMEC then sold “mortgage pass-through certificates” to various financial institutions. Each certificate represented an undivided participation interest in an individual pool of mortgage loans. The holder of a given certificate was entitled to receive interest thereon at a fixed rate regardless of the rates that were being paid by individual mortgagors in the pool. Two banks, Wells Fargo Bank and Bank of America, were trustees for the mortgage pools in NMEC’s certificate program. The trustee banks were obligated to review the documentation provided as to each mortgage in order to determine whether it complied with the standards set out in the pooling and servicing agreements. The branches of these two banks involved in this litigation are located in California.

NMEC has no office, address, or telephone number in Illinois and does not own any property in this State. NMEC did not sell any of the mortgage certificates to any Illinois individuals or corporations. According to NMEC, it never transacted any business in this State after 1980.

It is uncontested that Thomas Gallagher, an employee of Arthur Gallagher & Co., acted as the broker or “contact person” between NMEC and the London-based underwriters, in connection with the blanket bond coverage. Gallagher conducted his business activities from the Rolling Meadows location. In his capacity as broker, he ob-tamed and transmitted information from NMEC and Feldman in California to the London insurers.

The insurance coverage in issue is part of the “finance companies blanket bond” in effect for the year 1983 (the 1983 bond) and the renewal of that bond for the following year (the 1984 bond). The 1984 bond was cancelled effective July 13, 1984. The particular coverage that is the subject of this controversy is for “[l]oss resulting directly from one or more dishonest or fraudulent acts of an [ejmployee” as defined in the insuring agreement, an apparently standard form of fidelity insurance.

In 1985, three lawsuits were filed in the Federal District Court for the Northern District of California. These suits were brought by financial institutions that had purchased the pass-through certificates. The complaints alleged fraud in connection with the sale of the certificates, as well as alleged violations of Federal securities laws and racketeering laws (RICO). Among the named defendants in those suits are the trustee banks, Wells Fargo and Bank of America. The latter bank then filed an action in the Central District of the Federal court in California, suing NMEC, Feldman, and others, and alleging that the defendants defrauded the purchasers of the certificates by misrepresenting the value of the certificates and the value of the real estate upon which the residential loans were made. This lawsuit asserts causes of action based on Federal securities law, RICO, and the California Corporation Code.

The three Federal actions pending in the Northern District of California were consolidated with the one filed in the Central District and were assigned a single number. Since then, additional, related actions have been consolidated therewith.

In response to these various claims pending against them, NMEC and Feldman sought defense and indemnification from plaintiffs under the fidelity coverage of the bonds. Thereafter, on July 1, 1987, plaintiffs filed the pending declaratory action in the circuit court of Cook County. The defendants were unsuccessful in their attempt to remove the case to the Federal court sitting in the Northern District of Illinois.

On December 30, 1988, NMEC and Feldman filed a special and limited appearance and motion to dismiss for lack of jurisdiction. The parties took discovery limited to the personal jurisdiction issues and filed memoranda with the court. Plaintiffs argued that the court had personal jurisdiction over NMEC and Feldman, either because defendants had waived their special and limited appearance by raising nonjurisdictional matters, or because Gallagher acted as the agent of NMEC and Feldman. Under the agency theory, Gallagher’s contacts with Illinois would be imputed to the California defendants. Defendants denied that they had waived the issue and argued that Gallagher was plaintiffs’ agent rather than defendants’. Further, NMEC and Feldman argued that under either the long-arm statute or the minimum contacts analysis, none of Gallagher’s actions were sufficient to form the basis of jurisdiction in Illinois.

The trial court ruled that NMEC and Feldman had not waived their challenge to jurisdiction and that Gallagher was the agent of NMEC such that his activities as agent conferred jurisdiction under the long-arm statute.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Pumponator Inc. v. Water Sports, LLC
868 F. Supp. 2d 742 (N.D. Illinois, 2012)
Zurich Capital Markets, Inc. v. Coglianese
388 F. Supp. 2d 847 (N.D. Illinois, 2004)
Karraker v. Rent-A-Center, Inc.
239 F. Supp. 2d 828 (C.D. Illinois, 2003)
United Financial Mortgage Corp. v. Bayshores Funding Corp.
245 F. Supp. 2d 884 (N.D. Illinois, 2002)
Cleary v. Philip Morris, Inc.
Appellate Court of Illinois, 2000
Clipp Designs, Inc. v. Tag Bags, Inc.
996 F. Supp. 766 (N.D. Illinois, 1998)
Brujis v. Shaw
876 F. Supp. 975 (N.D. Illinois, 1995)
People Ex Rel. Hartigan v. Kennedy
576 N.E.2d 107 (Appellate Court of Illinois, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
567 N.E.2d 356, 208 Ill. App. 3d 426, 153 Ill. Dec. 398, 1990 Ill. App. LEXIS 1944, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burnhope-v-national-mortgage-equity-corp-illappct-1990.