Copalman v. Frawley

538 N.E.2d 630, 182 Ill. App. 3d 821, 131 Ill. Dec. 255, 1989 Ill. App. LEXIS 504
CourtAppellate Court of Illinois
DecidedApril 20, 1989
DocketNo. 1—88—1585
StatusPublished

This text of 538 N.E.2d 630 (Copalman v. Frawley) 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
Copalman v. Frawley, 538 N.E.2d 630, 182 Ill. App. 3d 821, 131 Ill. Dec. 255, 1989 Ill. App. LEXIS 504 (Ill. Ct. App. 1989).

Opinion

JUSTICE LINN

delivered the opinion of the court:

Plaintiffs, Lee and Sheila Copalman, filed a mortgage foreclosure action against defendants Thomas and Mildred Frawley and others. The Frawleys admitted liability as to principal and interest accruing after the default but contested the amount of costs and attorney fees that the Copalmans claimed. On October 7, 1986, four months after the default, the Frawleys tendered a cashier’s check “in satisfaction” of the principal and interest then due. Because the parties could not resolve the dispute over attorney fees, the Copalmans filed suit for the recovery of fees, costs and additional interest. After a trial on those issues, the court awarded the Copalmans an amount that included $5,000 in attorney fees and $3,622.32 in interest due on the principal balance. The Frawleys appeal, contending that the court’s award of interest is erroneous because their tender of the cashier’s check stopped accrual of further interest; that the award of attorney fees is excessive; and that the trial court’s order barring certain evidence involving another matter is reversible error.

We affirm the trial court.

Background

The Copalmans loaned money to the Frawleys and Richard Brandstatter, taking back second mortgages secured by notes on three properties in Northbrook, Illinois. The total amount of the mortgages, dated June 20,1985, was $25,000.

The closing on the properties took place in June 1985 and payment on the mortgages was due on June 20, 1986. No payment was made on that date.

In July 1986, the Copalmans’ attorney Michael Pildes, wrote defendants a letter concerning the default.

In August 1986 Pildes spoke with an attorney from the office of James A. Blazina, Chtd., who represented the defendants. On August 5, 1986, Peter Ross from Blazina’s office wrote a letter asking Pildes to take no further action until Frawley could discuss the matter with Copalman. On August 11 Frawley admitted to Copalman that he owed the $25,000 principal plus interest and that he wanted to resolve the matter without the attorneys because they had a personality clash. He told Copalman that the funds for payment of the principal and interest were readily available. Frawley said he did not want to go through Pildes, however.

On August 15, 1986, James Blazina, Frawley’s attorney, told Pildes that Frawley would pay the principal and interest due but that Frawley preferred discussing the matter directly with Copalman. He suggested that Pildes give Frawley and Copalman time to reach a compromise.

On August 18 Pildes spoke with his clients and they decided that if payment was not forthcoming in a short time, Pildes would go ahead and prepare and file a mortgage foreclosure action.

On August 22, Frawley telephoned Copalman. Copalman told him that Pildes did not feel that he should proceed without legal representation. According to Frawley, however, Copalman said that he would advise Pildes to do nothing. In a letter dated August 26, 1986, Frawley advised Copalman that he had instructed his attorneys to prepare all of the paperwork to document the principal and interest payments and the mortgage releases needed from Copalman. He further requested a copy of all documents that Copalman had recorded on the properties. However, he did not tender the undisputed principal and interest that was due.

On August 27, 1987, Pildes recorded the second mortgages because they had not been recorded at the time of the closing. A day later he prepared a complaint to foreclose the mortgage, which was filed September 2, 1986. He did not place the complaint for service with the sheriff until September 16. Pildes sent a payoff letter to Blazina’s law firm, which reflected a total due of $28,047.36 due for principal, interest, attorney fees, and costs.

After receiving no response by the end of the month, Pildes prepared letters to the tenants of the mortgaged property regarding the assignments of rents that the Frawleys had given to the Copalmans as part of the mortgage documents. He personally delivered the notices to the tenants to instruct them to pay rent to the Copalmans through his law firm. Some of the tenants subsequently told Pildes that they had been instructed by the realty company managing the property to submit the checks to it instead. The realty company’s president and director was James Blazina and a vice-president of the company was Thomas Frawley. According to Pildes, one of the realty company’s agents told him that Blazina personally instructed the agent to tell the tenants to submit the rent checks to the realty company.

The parties and attorneys had additional discussions in October 1986. Blazina sent the Copalmans settlement and release documents on behalf of the Frawleys without notice to Pildes. The Copalmans submitted the documents to Pildes’ firm for review. A short time later, the Copalmans received a cashier’s check for the principal and interest due, with the words “payment in satisfaction” of the mortgages. Blazina’s firm did not notify Pildes’ of this check, either.

Pildes sent Blazina a letter dated October 15, 1986, regarding the document and check and objecting to Blazina’s conduct. Shortly thereafter another attorney, Allen Castator, took over defendants’ representation and he and Pildes started another series of settlement discussions that began at the end of October and continued into November. Believing that all issues were finally settled, the Copalmans’ attorney prepared and sent the paperwork, including stipulations to dismiss, releases of mortgage and the settlement agreement, which the Copalmans had signed. Defendants did not execute the documents, however, and refused to go through with the settlement. Castator asked for itemizations of certain costs but did not tell Pildes that defendants were not going to sign.

Thereafter, the Copalmans proceeded to litigation, noticing a motion of default, summary judgment and judgment of foreclosure because defendants had not answered the complaint. In a subsequent pretrial ruling, the court allowed the cashier’s check to be deposited without prejudice to rights of either party, but no settlement was reached. Accordingly, the parties took discovery and proceeded to trial.

After hearing all of the evidence, the trial court entered judgment in favor of the Copalmans, allowing them to recover interest and certain costs and attorney fees.

Opinion

Defendants do not dispute that as of June 20, 1986, they were indebted to the Copalmans for the full amount of principal and interest due under the mortgage instruments and notes that they executed on June 20, 1985. Defendants also admit their subsequent default and their repeated representations that they would pay the amounts owed. Apparently, defendants had the necessary funds at all times but declined to pay the notes or cure their default thereunder for other reasons.

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Cite This Page — Counsel Stack

Bluebook (online)
538 N.E.2d 630, 182 Ill. App. 3d 821, 131 Ill. Dec. 255, 1989 Ill. App. LEXIS 504, Counsel Stack Legal Research, https://law.counselstack.com/opinion/copalman-v-frawley-illappct-1989.