First Illinois Bank & Trust v. Galuska

627 N.E.2d 325, 255 Ill. App. 3d 86, 194 Ill. Dec. 209, 1993 Ill. App. LEXIS 1570
CourtAppellate Court of Illinois
DecidedOctober 12, 1993
Docket1-92-0973
StatusPublished
Cited by17 cases

This text of 627 N.E.2d 325 (First Illinois Bank & Trust v. Galuska) 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
First Illinois Bank & Trust v. Galuska, 627 N.E.2d 325, 255 Ill. App. 3d 86, 194 Ill. Dec. 209, 1993 Ill. App. LEXIS 1570 (Ill. Ct. App. 1993).

Opinion

JUSTICE SCARIANO

delivered the opinion of the court:

Defendants Richard J. Galuska and Joy Lynn Galuska appeal from the trial court’s grant of summary judgment in favor of plaintiff First Illinois Bank & Trust entitling it to possession of their residence. Defendants urge on appeal that the circuit court erred in granting the motion because they had asserted multiple defenses to plaintiff’s forcible entry and detainer action via affidavits which raised issues of fact material to the resolution of the case.

In late 1989, defendants’ senior mortgagee, Bell Federal Savings, filed an action to foreclose on its mortgage and joined plaintiff, who held a mortgage on defendants’ property subordinate to that of Bell Federal. Plaintiff thereupon counterclaimed against defendants, seeking foreclosure of its mortgage as well. After an order of foreclosure was entered in favor of both mortgagees, defendants filed their notice of appeal from that ruling and also filed complaints in both State and Federal court, naming both mortgagees, alleging, inter alia, that they were defrauded and that the mortgages foreclosed upon were based on “voided bank checks.”

In order to avoid a judgment sale of defendants’ foreclosed residence and to secure a release of what plaintiff characterized as defendants’ “frivolous claims” asserted in the State and Federal actions, plaintiff and defendants reached an agreement whereby plaintiff would satisfy the debt owed by defendants to the senior mortgagee, and in exchange, defendants would release their claims against plaintiff, which would lend defendants a sum sufficient to satisfy the combined loans. To secure this additional loan, repayable by defendants on June 1, 1991, they entered into a contract with plaintiff for a deed in lieu of foreclosure pursuant to which they delivered to plaintiff a warranty deed to their residence. No further reference is made in the record to this deed which, for some obscure reason, appears never to have been registered. When defendants failed to meet the June 1 deadline, they again filed suit against plaintiff, and again, according to plaintiff, in order to avoid the litigation expense of defendants’ “nuisance” suits, it acquiesced in defendants’ demand for additional time to retire the loan.

This new agreement was memorialized in a document entitled “Extension of Settlement Agreement” which is not of record, but which plaintiff, without objection by defendants, included as an appendix to its brief. Pursuant to this agreement, entered into by the parties on June 13, 1991, defendants conveyed their residence to a land trust naming plaintiff as trustee, and simultaneously directed plaintiff, as trustee, to convey the residence to an escrow agent. There was also a contemporaneous escrow agreement which is neither part of the record nor appended to a brief. Plaintiff contends, and defendants do not otherwise indicate, that under the escrow agreement, the escrowee was instructed to act at the direction of plaintiff if defendants’ debt to it was not satisfied by August 15, 1991, but to act as instructed by defendants if they had paid the debt. At the hearing on the motion for summary judgment, defendants contested the validity of the purported escrow agreement, stating that the agreement they signed was not dated.

On June 19, 1991, the deed in trust, naming plaintiff as trustee of the trust impressed upon defendants’ residence, was registered in Torrens and, on July 31, 1991, Intercounty Title Company issued a title insurance policy on defendants’ residence showing plaintiff in its capacity as trustee of the land trust as the titleholder of record. As of August 15, 1991, the extended date upon which defendants were to pay the amount owing, they had not yet remitted the amount due, but once again, by what we must presume was an oral agreement, plaintiff agreed to extend further the date of repayment an additional 30 days, i.e., until September 14,1991.

On September 5, 1991, defendant Joy Lynn Galuska, who by that time had become the sole beneficiary of the land trust, and, apparently, the sole holder of the power of direction, effected an amendment to the land trust agreement which directed the trustee to deal with the corpus of the trust only as authorized in a writing signed by her. Two officers of plaintiff acknowledged receipt of the amendment on September 6, 1991. Thereafter, on September 23, 1991, plaintiff registered the trustee’s deed dated June 13, 1991, which presumably had been held by the escrowee pursuant to the parties’ escrow agreement and which we also presume to be the deed by which the land trustee conveyed defendants’ residence, free of the trust, to plaintiff in its corporate capacity qua bank.

After serving a demand on defendants and being refused, plaintiff filed a forcible entry and detainer action seeking immediate possession of the property. Defendants filed a series of motions in this matter, but when they finally answered the complaint, they denied plaintiff’s right to possession and asserted a multitude of affirmative defenses.

Plaintiff then moved for summary judgment, whereupon defendants sought removal of this action to the United States District Court, which the court refused to grant, holding that it was without jurisdiction. As far as we know, defendants’ appeal of that order is currently pending in the United States Court of Appeals for the Seventh Circuit. After being denied removal, defendants first filed a motion to strike plaintiff’s summary judgment motion, arguing that the court should ignore the motion, and then replied to plaintiff’s motion, attaching affidavits to their reply wherein they alleged that plaintiff’s trustee’s deed was fraudulently obtained; that the direction to convey dated June 13, 1991, had been altered; and that plaintiff as trustee conveyed the res of the trust without authority and in contravention of an amendment of the trust dated September 5, 1991, and acknowledged by plaintiff’s agents as having been received on September 6, 1991. After hearing argument of the parties, the court granted summary judgment in favor of plaintiff without stating its basis for doing

so. Defendants filed multiple post-trial motions seeking reconsideration of the order; vacation of the order; an emergency motion for relief; and a motion to clarify the court’s order. Finally, defendants filed their notice of appeal on March 16, 1992.

The parties to a forcible entry and detainer action, like other civil litigants, may avail themselves of a motion for summary judgment where the procedural device is appropriate. (See 7 C. Nichols, Illinois Civil Practice §7296, at 736 (rev. 1989); see also Kitzer v. Rice (1967), 90 Ill. App. 2d 72, 234 N.E.2d 115 (affirming grant of summary judgment in a forcible entry and detainer action); Barrett v. Bender (1948), 334 Ill. App. 135, 78 N.E.2d 832.) Summary judgment motions permit the trial court to determine whether any genuine issue of material fact exists in the action, and if not, to provide an expedient means of resolution. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871.) When deciding the motion, the trial court should construe all the evidence before it strictly against the movant. (Reed v. Bascon (1988), 124 Ill.

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Cite This Page — Counsel Stack

Bluebook (online)
627 N.E.2d 325, 255 Ill. App. 3d 86, 194 Ill. Dec. 209, 1993 Ill. App. LEXIS 1570, Counsel Stack Legal Research, https://law.counselstack.com/opinion/first-illinois-bank-trust-v-galuska-illappct-1993.