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Mid-west Natl. Bk. of Lake Forest v. Metcoff

NOVEMBER 21, 1974.

MID-WEST NATIONAL BANK OF LAKE FOREST, PLAINTIFF,

v.

JAMES L. METCOFF ET AL., DEFENDANTS. — (ELAINE R. BIEL ET AL., COUNTERPLAINTIFFS-APPELLANTS,

v.

MID-WEST NATIONAL BANK OF LAKE FOREST ET AL., COUNTERDEFENDANTS-APPELLEES.)



APPEAL from the Circuit Court of Lake County; the Hon. FRED H. GEIGER, Judge, presiding.

MR. JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:

This is an appeal from an order which limited the satisfaction of a lien to 50% of the proceeds of the judicial sale of real estate and which denied allowance of attorney's fees.

On June 20, 1969, a judgment in the sum of $43,731.75 (later reduced by credits to $35,731.75) was rendered in the Circuit Court of Cook County in favor of defendants-counterplaintiffs-appellants Elaine R. Biel and George Brode (hereinafter Biel and Brode) against James Metcoff and Eleanor Metcoff.

The Metcoffs were the purchasers under contract of a Deerfield residence which, on December 24, 1969, was conveyed from the seller (Deerfield Savings and Loan Association, not a party to the instant litigation) to the Union National Bank and Trust Company of Joliet as Trustee (hereinafter Union Bank as Trustee) under Trust No. 893. The beneficial interest in the trust was vested solely in Eleanor Metcoff. The Metcoffs effected the transfer by execution of a $42,000 promissory note and a security assignment to the plaintiff-counterdefendant-appellee, Mid-West National Bank of Lake Forest (hereinafter Mid-West). On January 12, 1970, Mid-West recorded its interest at the Lake County Recorder's Office. Mid-West delayed for over 2 years in filing a financing statement with the Secretary of State.

On October 18, 1971, the Circuit Court of Cook County rendered a decree in a citation proceeding instituted on June 23, 1970 by Biel and Brode against the Metcoffs, Mid-West and the Union Bank as Trustee. This decree directed the conveyance of all the estate and interest of James and Eleanor Metcoff in Land Trust No. 893 to their judgment creditors, Biel and Brode.

On August 18, 1971, the instant foreclosure proceeding was brought in Lake County by Mid-West as mortgagee naming as defendants James Metcoff and his wife Eleanor Metcoff, their judgment creditors Biel and Brode and the Union Bank as Trustee. The complaint alleged, inter alia, default by the Metcoffs by their failure to make payments on the indebtedness. Biel and Brode filed a counterclaim alleging, inter alia, that they were prior judgment creditors of the Metcoffs and praying that upon sale of the foreclosed property, their judgment be fully satisfied as a prior lien out of the proceeds of sale. Summary judgment was granted on the counterclaim and on December 21, 1971, a foreclosure decree was entered ordering the sale but the court reserved its ruling as to the priority of liens of Mid-West and Biel and Brode.

The Metcoffs appealed and on February 22, 1972, this court approved an appeal bond of $10,000, stayed the cause and suspended the enforcement of the receivership subject to conditions imposed by this court's own motion. On April 6 this court dismissed the appeal, vacated the stay and the suspended enforcement of the circuit court orders, and ordered the bond to be distributed as follows:

"* * * $6,155.00 toward all taxes, $3,888.50 for past due monthly payments to Mid-West National Bank of Lake Forest, Illinois; $195.00 for waste committed by failure to insure the property; and the balance remaining of the proceeds of the bond, if any, to the Clerk of the Circuit Court to be applied by the Circuit Court to costs, including the expense of attorney's fees, incurred by the receiver-appellee, Kurt D. Nauta; the defendants-counterplaintiffs-appellees, Elain R. Biel and George Brode, and the plaintiff-appellee, Mid-West National Bank of Lake Forest, Illinois."

On April 28, upon motion for filing the mandate of the appellate court, the trial court entered an order directing the receiver to apply the proceeds of the bond to pay certain taxes and for insurance, but ordered the remainder deposited with the clerk of court to await further order of the court.

On August 1, the trial court rendered its findings on the reserved matter of priority of liens. It found, inter alia, that the transfer of the interest of James Metcoff in the real estate to a trust making his wife sole beneficiary was a fraud on the creditors in which Mid-West is chargeable with at least notice, if not complicity; that Mid-West delayed over 2 years in filing a financing statement with the Secretary of State; that James Metcoff had only a 50% interest in the proceeds of sale; that taking all factors into consideration the equities are with Biel and Brode; and that Biel and Brode could enforce their lien against James Metcoff's 50% interest.

On September 5th, Brode and Lidschin and Pucin, attorneys for Biel and Brode, filed a petition for $4200 in attorney's fees and $49 in costs, limited to the matters of the Metcoff's prior appeal and the bond forfeiture proceedings.

Biel and Brode filed a motion for reconsideration of the August 1 order which restricted satisfaction of their lien to 50% of the proceeds of sale. On January 18, 1973, the trial court affirmed its prior holding and ordered $24,331.22 paid to Biel and Brode and $17,641.76 paid to Mid-West as to its lien on Eleanor Metcoff's interest in the proceeds. The court also denied the petition for attorney's fees and costs, and denied the motion of Mid-West for payment of $3888.50 from the bond forfeiture as arrearages on the mortgage.

Biel and Brode appeal from this order, alleging error in (1) restricting satisfaction of their lien to 50% of the proceeds of sale, and (2) denying the allowance of attorney's fees and costs incurred in the Metcoff appeal and in the matter of the bond forfeiture.

• 1, 2 Mid-West contends that it was error for the trial court in Lake County to (1) deny its motion to declare the October 18, 1971, citation decree void as to Mid-West; (2) find that Biel and Brode were entitled to priority over Mid-West in the satisfaction of their lien; and (3) deny Mid-West an award of $3,888.50 from the bond forfeiture as arrearages pursuant to this court's order. Mid-West prays that the judgment below be reversed and modified and the cause remanded with instructions consistent with its views of the case. We are not, however, at liberty to reverse or modify the judgment below at the urging of the appellee since, in the instant case, the appellee Mid-West has failed to file a cross-appeal. We agree with appellant's contention that in the absence of a cross-appeal, the matters urged by appellee are not properly before the reviewing court and thus are not subject to review on this appeal. (See Ill. Rev. Stat. 1969, ch. 110A, par. 303(b).) The requirement that appellee file a cross-appeal in order to assert reversal or modification of the judgment below is mandatory. Having failed to cross-appeal, this court lacks jurisdiction to consider Mid-West's attack on ...


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