Chicago Title & Trust Co. v. Chicago Title & Trust Co.

618 N.E.2d 949, 248 Ill. App. 3d 1065, 188 Ill. Dec. 379
CourtAppellate Court of Illinois
DecidedJune 30, 1993
Docket1 — 91—4012
StatusPublished
Cited by42 cases

This text of 618 N.E.2d 949 (Chicago Title & Trust Co. v. Chicago Title & Trust Co.) 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
Chicago Title & Trust Co. v. Chicago Title & Trust Co., 618 N.E.2d 949, 248 Ill. App. 3d 1065, 188 Ill. Dec. 379 (Ill. Ct. App. 1993).

Opinion

JUSTICE GIANNIS

delivered the opinion of the court:

This appeal arises from a judgment entered by the circuit court which awarded attorney fees to the plaintiff in a mortgage foreclosure action brought against defendants. This judgment required defendants to pay attorney fees which were in excess of the amount of fees specified at the time the delinquency was paid and the loan was reinstated. On appeal, defendants claim that the court erred in (1) awarding additional attorney fees based upon the affidavits and time records submitted by the plaintiff’s counsel, and (2) refusing to order a rebate of attorney fees as requested in defendants’ motion for sanctions filed pursuant to Supreme Court Rule 137 (134 Ill. 2d R. 137).

The record reveals that on October 31, 1989, the plaintiff trustee brought an action to foreclose a mortgage held on certain commercial property located at 1331 South Michigan Avenue in Chicago, Illinois. The mortgage given was in the nature of a trust deed and secured the debt created by an installment note which was personally guaranteed by defendant Rufus Cook. The defendants named in the foreclosure complaint were Chicago Title & Trust Company, trustee under trust number 1092636; Rufus Cook, guarantor; Cook Partners Law Offices, Ltd. (Cook Partners), Cook Development Company (Cook Development), and Grand Kahn Electric, tenants; and unknown owners and nonrecord claimants. The complaint alleged that the payment of the installment note was delinquent in the amount of $9,802.62 and sought a foreclosure of the mortgage and judicial sale of the property. The complaint also requested appointment of a receiver after sale in the event of a deficiency, appointment of a receiver pendente lite and of a mortgagee in possession. The complaint further sought a judgment for all attorney fees and costs, based upon paragraph 4 of the trust deed, which specifically provided that the trustee was entitled to recover attorney fees and other expenses incurred in a suit to foreclose the lien.

On December 13, 1989, defendants Chicago Title, Cook Partners and Cook Development appeared and moved to dismiss the action pursuant to section 2 — 615 of the Illinois Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615). Plaintiff filed a response to the defendants’ motion.to dismiss on January 24, 1990. On February 28, 1990, plaintiff moved for entry of a judgment of foreclosure and sale, an order of default, for summary judgment, and for a hearing on defendants’ section 2 — 615 motion. On that date, the trial judge granted defendants’ motion for a change of venue and the cause was assigned to the calendar heard by Judge Kenneth Gillis. Judge Gillis set March 15, 1990, as the date for hearing defendants’ section 2— 615 motion to dismiss and for disposition of plaintiffs motions in the event that defendants’ motion was denied.

On March 15, 1990, the court denied defendants’ section 2 — 615 motion and allowed defendants 28 days to answer or otherwise plead. The order entered also reflected that plaintiff’s motion for entry of a default order was withdrawn with respect to all of the defendants except Grand Kahn Electric, unknown owners, and nonrecord claimants.

On May 7, 1990, defendants filed a motion to dismiss pursuant to section 2 — 619 of the Code. But for the title of the document which specified the section of the Code relied upon, this motion was identical to the section 2 — 615 motion which had been denied on March 15, 1990.

On May 8, 1990, plaintiff filed a motion for an order of default which asserted that defendants Rufus Cook and Grand Kahn Electric had been served but had failed to appear or answer; defendants Chicago Title & Trust Company, Cook Partners, and Cook Development had appeared but had failed to file an answer; and the unknown owners and nonrecord claimants had been served by publication. On the same day that plaintiff’s motion for default was filed, the defendants advised the court that the arrearage on the loan could be brought current in June 1990. Accordingly, the court entered an order setting a briefing schedule on defendants’ section 2 — 619 motion to dismiss, and the cause was continued to June 11, 1990, for hearing on defendants’ motion and for hearing on all matters if the motion was denied. The record indicates that this order was drafted by defendant Rufus Cook, who had filed an appearance as attorney for defendants Chicago Title & Trust Company, Cook Partners, and Cook Development. Plaintiff filed a response to defendants’ section 2 — 619 motion to dismiss on May 14, 1990.

At the next scheduled court date on June 11, 1990, defendants advised the court that the arrearage on the loan would be paid by June 19, 1990, and the court continued the disposition of all pending motions until that date.

In a letter dated June 12, 1990, plaintiff’s counsel informed defendants that his client had declined to accept a reinstatement of the loan and demanded that the balance due under the installment note be paid in full.

On June 19, 1990, the matter was called for hearing, but defense counsel did not appear because he had been detained while appearing before another judge on an unrelated cause. At that time, the trial judge entered a judgment of foreclosure and sale against the defendants. This judgment provided that an order of default had been entered against those defendants who had failed to appear and that an order for summary judgment had been entered against those defendants who had failed to file answers to the complaint. Included in this judgment was a judgment for attorney fees in the amount of $1,950. Defense counsel did not arrive at the courtroom until after the judgment of foreclosure and sale had been entered.

Defendants Chicago Title & Trust Company, Rufus Cook, Cook Partners, and Cook Development filed a motion to vacate the judgment on July 17, 1990. This motion asserted that the judgment had been improperly entered and that defendants should be permitted to file an answer to the complaint. Plaintiff opposed the request to vacate the judgment, alleging that the defendants had filed a motion for a change of venue, a motion to quash service, a motion to dismiss pursuant to section 2 — 615, and a motion to dismiss pursuant to section 2 — 619, but had not filed any substantive pleadings since the action was commenced on October 31, 1989. But for the request for a change of venue, all of the motions filed by defendants had been denied.

In addition, plaintiff alleged that defendants had obtained continuances based upon the representations that the arrearage on the loan would be paid. Plaintiff alleged further that despite these representations and continuances, the loan remained delinquent after five court appearances, and plaintiff had received no offer from defendants to repay the debt. Plaintiff asserted that defendants sought only to delay the case and had no defense to the foreclosure action. Plaintiff further asserted that the court should consider that the lender was not a financial institution, but was an individual whose resources were being increasingly taxed by the failure of the defendants to make the payments due on the installment note.

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Bluebook (online)
618 N.E.2d 949, 248 Ill. App. 3d 1065, 188 Ill. Dec. 379, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chicago-title-trust-co-v-chicago-title-trust-co-illappct-1993.