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Skach v. Lydon

DECEMBER 19, 1973.

JOHN SKACH, PLAINTIFF-APPELLEE,

v.

MELVIN L. LYDON ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. SAMUEL B. EPSTEIN, Judge, presiding.

MR. JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

Defendants appeal from a denial of their petitions under section 72 of the Civil Practice Act, *fn1 to vacate a decree of mortgage foreclosure and sale. The following issues are presented for review:

"(1) Whether a mortgage foreclosure and sale should be vacated on a petition under Section 72 of the Civil Practice Act where the complaint was defective in that the mortgage and note upon which the suit was brought were not attached to the complaint or recited in it;

(2) Whether the mortgage foreclosure and sale should be vacated on petitions under Section 72 of the Civil Practice Act where the petitions presented new evidence which had a substantial bearing upon what would constitute substantial justice to the parties involved;

(3) Whether a decree of foreclosure is void as exceeding the jurisdiction of the court where plaintiff failed to follow the procedure required for obtaining a decree of foreclosure in that a copy of the mortgage and note were never presented to the court as specifically required by statute."

Melvin J. Lydon and Lylas R. Lydon had first and second mortgages on their home located at 1018 North Douglas in Arlington Heights, Illinois. The first mortgage, recorded June 28, 1966, was for $13,000 with the Unity Savings & Loan Association; the second, recorded March 13, 1967, was for $2,000 with plaintiff-appellee, John Skach.

The Lydons fell into arrears on the $2,000 mortgage and, on September 29, 1970, Skach filed a complaint against them to foreclose on his mortgage. Melvin J. Lydon was served personally on October 3, 1970, and filed his pro se appearance on October 30, 1970. Lylas R. Lydon was served by publication.

On January 8, 1971, Skach filed his affidavit of proof pursuant to Ill. Rev. Stat. 1971, ch. 95, § 22B and proffered the original note and the original mortgage into evidence. The Lydons neither responded to the complaint nor offered any evidence of their own; therefore an order of default was entered against Lylas R. Lydon for failure to appear and against Melvin J. Lydon for failure to plead. At the conclusion of the hearing, the court entered a decree of foreclosure and sale.

Pursuant to the decree, a sheriff's sale was held on February 2, 1971, at which Skach was the highest bidder. The sheriff's report of sale and distribution was approved by the court on July 7, 1971. On December 7, 1971, the redemption period prescribed in the foreclosure decree expired. The Lydons did not redeem from sale and, on December 9, 1971, a Sheriff's Deed to the property was issued to John Skach. Skach sought a writ of assistance to put him into possession of the property on May 25, 1972. Again the Lydons were served with notice but did not answer or appear. On May 25, 1972, the court ordered that the writ of assistance issue.

On July 18, 1972, the Lydons filed a petition to vacate the decree of foreclosure and sale of July 7, 1971, under section 72 of the Civil Practice Act. Their petition alleged that the plaintiff's complaint and affidavit were defective because the mortgage and note were not attached thereto as required by the Illinois Mortgage and Foreclosure Act. *fn2 Defendants further alleged that, at or about the time of the hearing, plaintiff advised Melvin J. Lydon that he need not fear that the house would be taken as long as he made all monthly payments to the Unity Savings & Loan Association on the first mortgage. Lydon claimed that he continued to make all monthly payments to Unity, in reliance upon plaintiff's alleged promise, until he was served with notice of plaintiff's petition for a writ of assistance on May 25, 1972. After hearing arguments on both sides, the court, on July 26, 1972, denied defendants' petition and reinstated the writ of assistance.

Defendants filed another motion to vacate the foreclosure decree on August 15, 1972, alleging newly discovered evidence which, if known to the court at the time of judgment, would have prevented its rendition. The new evidence presented by the defendants was the existence of a prior judgment entered between the same parties on the note accompanying the mortgage. Defendants' petition further stated that the reason the note was not attached to the complaint to foreclose was that the note was a part of the record in the action on the note. On August 15, 1972, the court again denied the defendants' petition. A writ of assistance issued and Lydon was removed from the house.

Defendants appeal from the court's refusals, on July 26, 1972 and August 15, 1972, to grant relief under section 72 on two grounds: (1) Plaintiff's complaint was defective in that the mortgage and note upon which the action was brought were not attached to it, and (2) new evidence was discovered which had a substantial bearing upon what would constitute substantial justice to the parties involved. Defendants further contend in this appeal that the failure of plaintiff to attach the mortgage and note to the complaint rendered the entire proceedings void because the court exceeded its jurisdiction.

• 1 Section 72 of the Civil Practice Act provides a method whereby relief may be had from final orders, judgments and decrees after 30 days from the entry thereof. The burden is on the petitioner in a section 72 petition to show diligence in asserting his defense, if any; section 72 is not intended to relieve a defendant from the consequences of his own negligence. Goldman v. Checker Taxi Co., Inc. (1967), 84 Ill. App.2d 318, 228 N.E.2d 177; Suarez v. Yellow Cab Co. (1969), 112 Ill. App.2d 390, 251 N.E.2d 340.

• 2 The record discloses that the Lydons failed to exercise diligence. Melvin J. Lydon was served personally with summons on October 3, 1970, and filed his pro se appearance on October 30, 1970. Lylas R. Lydon was duly served by publication. During the 90 days which elapsed from the time of personal service on Melvin J. Lydon to the date of the foreclosure decree, neither of the Lydons filed any pleadings or motions, appeared, or presented any defense. In addition to service of procsss, Melvin J. Lydon was served with a notice of motion for entry of a default order on January 8, 1971; he did not attend or present any defense. He was served personally with a notice of the presentation of the petition for a writ of assistance ...


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