APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
E. CHERRY, Judge, presiding.
MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:
Peter Cokinis and Isabelle Cokinis, his wife, plaintiffs, brought this action against Maywood-Proviso State Bank (the bank) and Peter D. Giachini, John Murphy and Michael Cooper, doing business as Giachini & Murphy, defendants, for alleged fraudulent and willful and wanton conduct with respect to a sheriff's sale of plaintiffs' property. The court directed a verdict for defendants on the allegations of fraud and willful and wanton conduct, but submitted plaintiffs' claim to the jury as a claim against Cooper and the bank for negligence. The jury returned a verdict for plaintiffs against Cooper and the bank in the amount of $50,000, but the court entered a judgment n.o.v. for defendants and entered judgment against those defendants for $2250. Plaintiffs' motion for post-trial relief was denied. Plaintiffs appeal.
Peter Cokinis testified that the bank made a series of loans to him which he used in financing his wholesale and retail meat business. The bank originally loaned Cokinis $5250 on April 13, 1965. He borrowed $11,800 on May 4, 1965, to refinance the first loan. Cokinis did not give the bank any collateral for either loan. On August 25, 1965, the bank loaned $17,625 to both Peter and Isabelle Cokinis to refinance the May 4 loan. The Cokinises, on August 25, also signed a separate document assigning as collateral for this loan their joint beneficial interest in their residence, which they earlier had placed in a land trust with the bank as trustee.
Plaintiffs repaid most of the August 25, 1965, loan and the bank refinanced the remainder by loaning them $10,900.53 on July 24, 1967. The plaintiffs both signed a promissory note to the bank. The note stated they pledged as collateral their beneficial interest in their residence. This note was paid off by plaintiffs without further refinancing on December 16, 1967.
The bank loaned $1500 to Peter Cokinis on June 11, 1970, and refinanced this loan on September 18, 1970, with a loan to him of $1605. For each of these two loans, Peter Cokinis alone signed the promissory notes, stating he pledged as collateral the beneficial interest in the Cokinises' residence.
Peter Cokinis failed to make the payments on the September 18 loan. The bank sent him a letter on December 5, 1970, stating that he should bring his account current by December 12, or a judgment would be obtained against him. The bank then turned the matter over to defendant Michael Cooper, a partner in the law firm of Giachini & Murphy. Cooper wrote to Mr. Cokinis on December 15, 1970, asking him to bring his account current within five days. Cokinis failed to pay the obligation, and on December 23, 1970, Cooper obtained a confession of judgment in favor of the bank against Cokinis for $1714.73.
Cooper wrote to Cokinis on December 28, 1970, informing him that a judgment had been confessed against him for $1714.73 and that unless payment was made within 10 days, Cooper was authorized to commence foreclosure proceedings against the Cokinises' home. Cokinis failed to pay the judgment. On April 15, 1971, Cooper sent him notice that on April 23, 1971, Cooper would ask the court for an order directing the sheriff to sell the beneficial interest in the Cokinises' home at public auction. Cokinis did not pay the judgment and Cooper appeared before the court on April 23, 1971. The Cokinises were not present at this hearing. Cooper advised the court of the bank's judgment against Peter Cokinis and informed the court that the beneficial interest in the Cokinises' home had been pledged as collateral for the loan. The court then entered an order, prepared by Cooper, stating that Peter and Isabelle Cokinis jointly owned the beneficial interest in their residence and that they both had assigned their beneficial interest as security for the September 18 loan upon which judgment had been confessed. The order also directed that the sheriff sell the beneficial interest and that the proceeds be applied toward satisfying the bank's judgment against Peter Cokinis. Cooper mailed a copy of this order to Cokinis on April 28, 1971.
The sheriff's sale was set for June 21, 1971. Cokinis called Cooper on June 15 and asked for an appointment to discuss the situation. Cokinis came to Cooper's office on June 17 and told him he wished to arrange for an installment payment plan. Cooper agreed to this, but told Cokinis that the sheriff's sale would still take place as scheduled. Cokinis then paid $400 on the judgment and Cooper, on behalf of the bank, entered into a written agreement with Cokinis acknowledging receipt of the $400 and agreeing to an installment payment schedule for the remainder of the judgment. The agreement also stated that the entire beneficial interest in the Cokinis' home was to be sold on June 21, 1971, and that the bank would "bid its full judgment at the * * * sale and acquire the beneficial interest." Peter Cokinis testified that he had read and understood the agreement and had shown it to his wife, and had known that the sale would go forward.
The sheriff's sale occurred at 10 a.m. on June 21, 1971. Cooper had planned to bid only the amount of the bank's judgment, but made no bid because two other individuals, George Javaras and Josephine Skach, bid $1845.41 for the property. Javaras and Skach were the only bidders. Prior to the sale, the sheriff had asked Cooper if he wished to proceed and Cooper had not requested a continuance. George Javaras testified that it is customary that a sheriff's sale will be continued or cancelled at the request of a plaintiff's attorney.
Cooper testified that he had not asked his law partners, Peter Giachini and John Murphy, how the sheriff's sale would be conducted. Cooper further testified that he was inexperienced with respect to such sales. He had previously participated in only one foreclosure sale and on that occasion the bank had been the sole bidder. Cooper testified that he "just assumed that this would be the same type of transaction," and that the bid of Javaras and Skach came as a total surprise to him.
After the sale, Cooper went back to his office. According to Cooper's secretary at that time, he appeared very nervous. Cooper testified that when he returned to his office he called Peter Cokinis and informed him about the sale, and Cokinis told him he would be hearing from his lawyer. Cooper stated that later that day he received a phone call from Fred Ginsberg, Cokinis' lawyer. Cooper testified that Ginsberg told him he was going to file a petition to vacate the sale, and that he felt Cokinis should pay the remainder of the judgment and asked for Cooper's cooperation. Cooper then prepared a release of judgment, dated June 21, 1971, and Peter Giachini signed it on behalf of the bank.
Cooper testified that on June 21 he also sent a notice of motion to Ginsberg and to Javaras and Skach, stating that he would appear in court on June 24 and ask the court to set aside the sale. Cooper's secretary at that time testified that she prepared and mailed this notice on June 21. A copy of the notice was introduced as an exhibit. In addition, Cooper that day told his partner, John Murphy, about the sheriff's sale and Murphy arranged for the bank to refuse to accept the assignment of the beneficial interest from the sheriff to Javaras and Skach.
Peter Cokinis came to see Cooper on June 22 and paid the balance of the judgment and signed a note promising to pay the bank $138.68 for judgment interest and costs. Cokinis testified that Cooper never called him on June 21 or told him on June 22 that a third party had been the successful bidder at the sale. Cokinis stated that he first learned Javaras and Skach had been the purchasers when Javaras came to his home and told him this on the evening of June 22. Also, Fred Ginsberg testified that he did not speak to Cooper or anyone at the bank on or before June 21.
Peter Giachini and John Murphy testified that they were not involved in the sale of the Cokinis property. Giachini stated that he was surprised when Cooper told him about being outbid. He further testified that he did not know whether Isabelle Cokinis had signed for any loans after that of August 25, 1965. He also stated that before the sale he did not see ...