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Amos v. Norwood Federal Sav. & Loan

OPINION FILED MARCH 28, 1977.

JAMES B. AMOS, D/B/A SANS SOUCI PARTNERSHIP, PLAINTIFF-APPELLANT,

v.

NORWOOD FEDERAL SAVINGS AND LOAN ASSOCIATION, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. DONALD J. O'BRIEN, Judge, presiding.

MR. PRESIDING JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

This action was brought for declaratory judgment and injunctive relief. Each side moved for summary judgment. The trial court dismissed the cause on its own motion, finding that no actual case or controversy exists between the parties. Plaintiff has appealed.

The principal issue is whether an actual controversy is disclosed by the record. Defendant also contends that the issues are moot.

The facts are not disputed. In 1971, Sans Souci Partnership (plaintiff) acquired the beneficial interest in an existing land trust of which the Citizens Bank and Trust Company of Park Ridge was trustee. The trust res is a parcel of land in Mt. Prospect, Illinois, improved by more than 80 apartments.

On June 6, 1972, the trustee executed a promissory note of $950,000 payable to Norwood Federal Savings and Loan Association (defendant). This note was payable in installments over a 25-year period and was secured by a mortgage of the trust property to defendant. The mortgage contained the following provision (hereinafter the "due on conveyance" clause):

"In the event the Grantors herein convey these premises, this Mortgage and Note, secured thereby, shall become due and payable on demand, notwithstanding any terms to the contrary as to time of monthly payments or in payment of the final balance."

On October 10, 1972, plaintiff assigned to defendant its entire "right, power, privileges, [and] beneficial interest" in the trust agreement and "all right, title or interest" in the trust res. Two letters written by defendant's executive vice president refer to this assignment as "additional collateral" for the loan.

At the time the complaint was filed, plaintiff was negotiating with Grimsley, Ltd, (buyer) for sale of the beneficial interest of the trust. An agreement had been prepared for this purpose but had not been executed. A copy of the agreement, comprising some 40 pages, was appended to defendant's answer. The proposed agreement provided for payment for the beneficial interest in installments over a 10-year period. Plaintiff covenanted to assign the interest after the buyer had made all payments and complied with other conditions. Plaintiff as seller also agreed to deliver possession of the property to buyer and to assign all interest in existing leases upon payment of certain initial sums, subject to the first mortgage held by defendant. The contract did not require buyer's assumption of the note and mortgage but provided that an escrowee would pay the mortgage indebtedness as it received payments from the buyer. Plaintiff agreed to transfer the beneficial trust interest to the buyer only upon full payment of the mortgage indebtedness to defendant.

The complaint alleged that defendant had claimed that execution of the above agreement would authorize an immediate acceleration of the note and mortgage under the "due on conveyance" clause and that defendant had threatened foreclosure proceedings if the contract were executed. Plaintiff alleged that acceleration of the note and mortgage could require it to obtain a new mortgage at a substantially higher rate of interest and that the threat of acceleration could cause the buyer to refuse to execute the proposed agreement and thus would deprive plaintiff of the benefit of the sale. Plaintiff further alleged the assignment of the beneficial interest on October 10, 1972, had been for security purposes only. Defendant's answer averred, in effect, that the assignment had transferred the entire beneficial interest "absolutely, and without restriction" and this prevented any transfer of the interest without defendant's consent.

The statute governing declaratory judgments provides (Ill. Rev. Stat. 1975, ch. 110, par. 57.1(1)):

"No action or proceeding is open to objection on the ground that a merely declaratory judgment, decree or order is sought thereby. The court may, in cases of actual controversy, make binding declarations of rights * * * whether or not any consequential relief is or could be claimed, including the determination * * * of the construction of any * * * contract or other written instrument, and a declaration of the rights of the parties interested."

• 1 The declaratory judgment procedure provides a statutory remedy "designed to afford security and relief against uncertainty with a view to avoiding litigation * * * and to settle and fix rights before there has been an irrevocable change of position of the parties in disregard of their respective claims of right * * *." (Ill. Ann. Stat., ch. 110, par. 57.1, Historical and Practice Notes, at 128 (Smith-Hurd (1968). See generally Richards v. Liquid Controls Corp. (1975), 26 Ill. App.3d 111, 130, 325 N.E.2d 775; Charleston National Bank v. Muller (1974), 16 Ill. App.3d 380, 382, 306 N.E.2d 358.) However, declaratory relief is not available in cases involving hypothetical questions or mere abstract propositions of law. See Weary v. School Dist. No. 189 (1974), 20 Ill. App.3d 37, 39-40, 312 N.E.2d 764. See generally Exchange National Bank v. County of Cook (1955), 6 Ill.2d 419, 421-23, 129 N.E.2d 1.

• 2 Defendant urges that no actual controversy exists because the proposed agreement remains unexecuted, therefore, "there [was] no transaction pending for the lower court to pass upon [and] * * * there may be no transaction in the future." We disagree. In our opinion, under Illinois law, an actual controversy is presented in the record before us.

In A.S. & W. Club v. Drobnick (1962), 26 Ill.2d 521, 187 N.E.2d 247, plaintiff, the grantee of realty under a deed from defendant, brought a declaratory judgment action for construction of a provision of the deed. Plaintiff had proposed to sell the land to a third party and defendant objected contending that the deed restricted the sale and required plaintiff to construct a clubhouse on the land. Plaintiff countered that the deed merely required "a designated exterior wall finish on any building that may be erected on the land" (26 Ill.2d 521, 524), but did not require plaintiff to erect the structure. On appeal, defendant argued that no controversy existed and the cause should have been dismissed. The supreme court held that the parties had "taken an adverse ...


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