Mercado v. Calumet Federal Savings & Loan Ass'n

554 N.E.2d 305, 196 Ill. App. 3d 483, 143 Ill. Dec. 370, 1990 Ill. App. LEXIS 364
CourtAppellate Court of Illinois
DecidedMarch 26, 1990
Docket1-88-0906
StatusPublished
Cited by12 cases

This text of 554 N.E.2d 305 (Mercado v. Calumet Federal Savings & Loan Ass'n) 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
Mercado v. Calumet Federal Savings & Loan Ass'n, 554 N.E.2d 305, 196 Ill. App. 3d 483, 143 Ill. Dec. 370, 1990 Ill. App. LEXIS 364 (Ill. Ct. App. 1990).

Opinion

JUSTICE CAMPBELL

delivered the opinion of the court:

The plaintiffs, Catherine Mercado and her son, Michael Kuknyo, brought an action in the circuit court of Cook County against the defendant, Calumet Federal Savings and Loan Association. Plaintiffs sought a release of their mortgage, held by the defendant, and also sought a determination that the defendant’s assessment of.$7,500 in attorney fees was improper. The circuit court denied the plaintiffs’ request for a release of their mortgage and also held that the attorney fees assessed by the defendant were reasonable. The plaintiffs then appealed the circuit court’s order to this court.

On July 30, 1976, Mercado established a land trust, known as Trust 1137, with the River Oaks Bank & Trust Company (River Oaks). River Oaks, as trustee, was named grantee of a single family dwelling located at 521 Ingram Avenue in Calumet City, Illinois. The trust agreement stated that the entire beneficial interest in the trust was to be vested in Mercado. According to the plaintiffs, both Mercado and Kuknyo resided in the home.

Subsequently, on April 29, 1979, Mercado made an application to refinance an existing mortgage with a new loan of $20,500 at 10% interest. It is not clear from the record when the original mortgage was executed or what the amount of that mortgage was. Mercado stated that the purpose of the refinancing was to help her son. The new mortgage was executed on May'29, 1979, with River Oaks as mortgagor and defendant as mortgagee. The mortgage provided, in the provision at issue here:

“That in the event the ownership of said property or any part thereof becomes vested in a person other than the Mortgagor *** the undersigned further agrees that in the event of the sale, assignment or pledge by the mortgagor of the property (or any interest therein) which is the subject of this mortgage, the mortgagee or its assigns may at its option, declare the entire balance of principle and interest remaining due hereunder at that time, immediately due and payable.”

Thereafter, the defendant sent plaintiffs a notice of default on May 20, 1983, stating that Mercado had breached her mortgage agreement. Defendant claimed that Mercado had sold her home to Kuknyo without first obtaining its written consent. According to the defendant, it was put on notice of the sale when it received a copy of a homeowner’s insurance policy on the trust property for 1983-84 which showed Kuknyo as the contract purchaser and beneficiary, and showed that Mercado no longer had the same mailing address as Kuknyo. The defendant notified plaintiffs that it intended to use its option to accelerate the mortgage and warned that foreclosure proceedings would be instituted if plaintiffs failed to tender the entire unpaid principle balance within 30 days.

Plaintiffs then filed suit on November 18, 1983, in the United States District Court for the Northern District of Illinois, in order to stop the acceleration. In their complaint, the plaintiffs alleged the following: (1) in May 1979, Mercado financed a loan through the defendant and as security for the loan, she mortgaged her home; (2) Mercado told the defendant that the loan was for the benefit of her son, Kuknyo, and that Kuknyo would make all payments on the loan; (3) defendant accepted Kuknyo’s payments on the loan for several years; (4) defendant then noticed that the home was insured in Kuknyo’s name and asked Mercado to transfer ownership to him; (5) pursuant to defendant’s request, plaintiffs prepared a sale contract between Mercado and Kuknyo and delivered it to defendant; (6) upon receiving the sale contract, the defendant sent plaintiffs a letter notifying them that it had decided to accelerate payments on the note; (7) defendant also said that in lieu of foreclosure on the note, plaintiffs could execute a new note and mortgage at a higher interest rate. Plaintiffs claimed that the defendant’s acceleration of the mortgage violated the Real Estate Settlement Procedures Act of 1974 (12 U.S.C. §2607(b) (1982)).

On April 27, 1984, the district court entered an order granting the defendant’s motion to dismiss, holding that the plaintiffs had failed to state a cause of action. The plaintiffs then appealed to the United States Court of Appeals for the Seventh Circuit. The Seventh Circuit affirmed the district court’s order without holding oral argument on the issues. Mercado v. Calumet Federal Savings & Loan Association (7th Cir. 1985), 763 F.2d 269.

Following the Federal lawsuits, the defendant sent plaintiffs a letter stating that $7,500 had been added to their mortgage. The defendant explained that the additional $7,500 was for attorney fees it had incurred defending the Federal lawsuits. Defense counsel had billed the defendant for 100 hours of work at $75 an hour. The defendant noted that plaintiffs’ mortgage document contained a provision which allowed it to assess a reasonable amount of attorney fees for litigation concerning the mortgage document. Specifically, that provision provided: Thereafter, on December 17, 1986, plaintiffs tendered the balance owed on their mortgage, except for the amount assessed in attorney fees, and demanded a release of their mortgage.

“That the Mortgagee may employ counsel for advice or other legal service at the Mortgagee’s discretion in connection with any dispute as to the debt hereby secured or the lien of this Instrument, or any litigation to which the Mortgagee may be made a party on account of this lien or which may affect the title to the property securing the indebtedness hereby secured or which may affect said debt or lien and any reasonable attorney’s fees so incurred shall be added to and be a part of the debt hereby secured.”

When the defendant did not release the mortgage, plaintiffs filed suit in the circuit court of Cook County. Plaintiffs asked the court to order the defendant to tender the release and to deny the defendant’s request for attorney fees. The defendant claimed that it was entitled to accelerate the plaintiffs’ mortgage because Mercado had misrepresented on her mortgage application that the premises were to be owner-occupied, and also because Mercado had sold her home to Kuknyo without first consulting it. In addition, the defendant alleged that plaintiffs had failed to respond to defendant’s repeated inquiries concerning the sale between Mercado and Kuknyo. Finally, because the Federal litigation related to the mortgage, defendant argued that it was entitled to attorney fees.

The plaintiffs filed a motion for summary judgment on May 13, 1987, asking the court to remove the assessment of $7,500 against them and to order the release of their mortgage. Defendant then filed its own motion for summary judgment on June 23, 1987. Along with its motion, the defendant filed the affidavit of Lorraine Straka, vice-president of defendant’s loan department. In her affidavit, Straka said that on April 29, 1979, Mercado applied for a mortgage loan from the defendant, stating that she wanted to refinance her property in order to obtain $10,000 for her son.

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Cite This Page — Counsel Stack

Bluebook (online)
554 N.E.2d 305, 196 Ill. App. 3d 483, 143 Ill. Dec. 370, 1990 Ill. App. LEXIS 364, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mercado-v-calumet-federal-savings-loan-assn-illappct-1990.