Case v. Forloine

639 N.E.2d 576, 203 Ill. Dec. 256, 266 Ill. App. 3d 120
CourtAppellate Court of Illinois
DecidedSeptember 30, 1993
Docket1-92-2219
StatusPublished
Cited by15 cases

This text of 639 N.E.2d 576 (Case v. Forloine) 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
Case v. Forloine, 639 N.E.2d 576, 203 Ill. Dec. 256, 266 Ill. App. 3d 120 (Ill. Ct. App. 1993).

Opinion

PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiffs, James and Karen Case, filed a complaint for declaratory and injunctive relief and for damages, seeking a turnover of the earnest money deposited by defendants, Robert Forloine and Gwen Rose, with codefendant, Near North National Title Corporation, pursuant to a real estate sales contract between plaintiffs, as sellers, and defendants, as purchasers. (Near North Title is not a party to this appeal.) Following a bench trial, the court determined that plaintiffs had not proved that defendants failed to exercise good faith in seeking the mortgage specified in the mortgage contingency clause of the contract. Accordingly, judgment was entered in favor of defendants on count I of the complaint. Plaintiffs appeal from this ruling, contending that: (1) the evidence established that defendants never applied for or took reasonable steps to obtain a mortgage within the time frame set forth in the mortgage contingency clause; (2) defendants never sought or applied for the precise mortgage described in the mortgage contingency clause; and (3) defendant Rose failed to apply for a mortgage or submit financial information to any financial institution.

The trial court, however, awarded plaintiffs $3,000 under count II of their complaint, in which they sought recovery pursuant to a letter agreement whereby defendants agreed to pay them that amount if the transaction did not close. The court also awarded plaintiffs attorney fees totaling $1,762.50 after finding that defendants erroneously denied a particular fact which plaintiffs had propounded in their request to admit. Finally, the trial court awarded plaintiffs $858 as reimbursement for the expense of obtaining a title report and survey, which they ordered after defendant Forloine assured them that the closing would occur as scheduled. Defendants have filed a cross-appeal challenging these awards.

The relevant facts are as follows. On June 14, 1990, plaintiffs entered into the subject contract and accompanying letter agreement with defendants, whereby defendants were to purchase plaintiffs’ home located at 2543 North Burling in Chicago. In the letter agreement, the parties specified that defendants would pay plaintiffs $3,000 if the transaction did not close. The contract, as modified by a June 25, 1990, letter agreement, required defendants to deposit $45,800 as earnest money with Near North Title, which they did. The closing on the sale was set to occur on October 2, 1990.

Paragraph 3(c) of the contract contained the mortgage contingency clause at issue, which provided:

"This contract is contingent upon Purchaser securing within 30 days after acceptance hereof a commitment for a fixed rate mortgage *** for $370,000, the interest rate not to exceed 10.5% per annum, amortized over 30 years, payable monthly, loan fee not to exceed 4%, plus appraisal and credit report fee, if any. *** If Purchaser does not obtain such commitment, Purchaser shall notify Seller in writing within said number of days. If Seller is not so notified, it shall be conclusively presumed that Purchaser has secured such commitment or will purchase said property without mortgage financing. ***”

Paragraph 5 of the contract provided, in relevant part:

"If this contract is terminated without Purchaser’s fault, the earnest money shall be returned to the Purchaser, but such refund shall not release Seller from Seller’s obligation under this contract. If the termination is caused by the Purchaser’s fault, then, at the option of the Seller, and upon notice to Purchaser, the earnest money shall be forfeited and applied first to payment of Broker’s commission and any expenses incurred, and the balance paid to Seller.”

Following plaintiffs’ acceptance of the contract on June 14, 1990, Forloine proceeded to contact various financial institutions regarding financing. Rose was not named as a co-borrower in any inquiry Forloine made to the various financial institutions or on any applications he subsequently submitted. Forloine testified that Rose was not named as a co-borrower because her income in 1990 was "negligible.” He acknowledged that in 1989, Rose earned approximately $17,000. Under the contract, defendants had until July 14, 1990, to obtain financing or to notify plaintiffs of their inability to do so. Forloine testified that he was ideally seeking a combination acquisition/ rehabilitation loan totaling approximately $780,000, as he intended to perform extensive renovation work on the property, but informed every lender he contacted that he would accept just the acquisition loan and seek rehabilitation financing elsewhere. It is undisputed that Forloine did not submit a written loan application to any financial institution until after the expiration of the 30-day period.

Forloine contacted Savings of America on June 6, 1990. Forloine spoke to a loan officer by the name of Ms. Holmes about obtaining a mortgage and supplemental funds for renovation. Forloine stated that he met with Holmes on June 25 and exchanged information, but he could not recall anything that was said at the meeting. Holmes subsequently left the bank, and consequently Forloine had no further contact there.

Forloine contacted a representative of First Nationwide Bank orally on June 14, 1990, but did not recall the specifics of the conversation. He again contacted First Nationwide on June 19, this time in writing; Sometime prior to July 14, according to Forloine, he met with a bank representative and submitted detailed financial information. He again contacted the bank in writing on August 2 to confirm his interest in obtaining a combination acquisition/ rehabilitation loan, but never heard anything further from that bank.

Forloine also stated that sometime prior to June 15, 1990, he called La Salle National Bank-Lake View, where he talked to Melanie Gahan, a loan officer. Forloine sent Gahan a letter on June 15 and attempted to follow up with additional information. Although Gahan expressed interest in making a loan to Forloine, he did not have any further contact with her until August 2,1990. On August 6, 1990, Forloine submitted a written loan application with an accompanying letter explaining that his request was for a loan totaling $780,250. Forloine testified that on this loan application, and all others he submitted, he left the "Mortgage Applied For” space blank, preferring to let the bank fill it in once it determined how much he was eligible to borrow. Forloine’s application with La Salle was subsequently rejected.

Forloine contacted Avondale Federal Savings and Loan on June 15, 1990. According to Forloine, he was told that Avondale did not offer mortgages in excess of $180,000. He had no further contact with this institution.

Forloine wrote Northern Trust on June 18, 1990, indicating an interest in a loan primarily for rehabilitation and capital improvement work on the subject property. In the letter, Forloine indicated that there would be a first mortgage on the property for 75% to 80% of its value. Because Forloine had a prior business relationship with Northern Trust, the bank already possessed detailed financial information on Forloine. Sometime in June or early July, discussions arose concerning the possibility of the bank providing both the acquisition and rehabilitation loan on the subject property.

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Cite This Page — Counsel Stack

Bluebook (online)
639 N.E.2d 576, 203 Ill. Dec. 256, 266 Ill. App. 3d 120, Counsel Stack Legal Research, https://law.counselstack.com/opinion/case-v-forloine-illappct-1993.