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Mutual Life Ins. Co. of New York v. Chambers

OPINION FILED SEPTEMBER 11, 1980.

THE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, PLAINTIFF,

v.

ROBERT H. CHAMBERS ET AL., DEFENDANTS. — (MARTHA L. CHAMBERS, PETITIONER-APPELLEE,

v.

GEORGE B. JAVARAS, RESPONDENT-APPELLANT.)



APPEAL from the Circuit Court of Cook County; the Hon. FRANCIS T. DELANEY, Judge, presiding.

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

Rehearing denied October 9, 1980.

Respondent, George B. Javaras (Javaras), appeals from an order of the circuit court of Cook County granting petitioner, Martha L. Chambers (Chambers), an extension of the statutory period of redemption within which to redeem her real property sold to Javaras pursuant to a decree of foreclosure and sale. (Ill. Rev. Stat. 1977, ch. 77, pars. 1, 10, 14.) Javaras contends it was legally impermissible for the trial court to extend the statutory period of redemption.

We affirm.

The record discloses that The Mutual Life Insurance Company of New York, the assignee of the mortgagee (mortgagee), instituted foreclosure proceedings against Chambers, the mortgagor. *fn1 The action sought recovery of the claimed indebtedness of $4,674.94 plus costs. On April 11, 1977, Chambers' attorney filed an appearance in the foreclosure action on behalf of Chambers. On October 21, 1977, Chambers, on her own behalf, filed an appearance in the proceedings.

On May 5, 1978, the mortgagee presented its motion to default the named defendants in the foreclosure action. The certificate of service of notice of the motion discloses that a copy of this motion to default was mailed to Chambers' home. It appears that no notice of the motion was sent to Chambers' attorney. Pursuant to the motion, the trial court, on May 5, 1978, entered its order defaulting the named defendants for their failure to plead. The complaint was taken as confessed against Chambers, and the trial court entered a decree of foreclosure and ordered the sale of the property and the distribution of the sale proceeds in accordance with section 22 of "An Act in regard to judgments * * *" (Ill. Rev. Stat. 1977, ch. 77, par. 22). The record fails to disclose that copies of the trial court's orders of default and foreclosure and sale were sent to Chambers or her attorney.

On June 20, 1978, pursuant to a sale conducted by the sheriff of Cook County, the property was sold to Javaras, the highest bidder, for $19,000. Thereafter, on June 30, 1978, the mortgagee presented its motion seeking the entry of an order by the trial court approving the sheriff's report of sale and distribution of proceeds. The record discloses that notice that this motion was to be presented to the trial court was sent to Chambers, but the record fails to disclose that notice of the motion was sent to her attorney. Neither Chambers nor her attorney appeared in response to the motion. The trial court, on June 30, 1978, approved the sheriff's report of sale and distribution and ordered the sheriff to issue a certificate of sale to Javaras.

On June 15, 1979, five days prior to the expiration of the one-year period of redemption, Chambers' attorney presented a verified petition seeking a vacation of the decree of foreclosure for inadequacy of consideration coupled with lack of notice and alternatively seeking an extension of the period of redemption. The petition alleged that Chambers was a disabled person, that she had received no notice of the proceedings resulting in the entry of the default order which violated section 50.1 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 50.1), *fn2 and that the property had been sold for an inadequate price. Thereupon, Javaras filed a motion to dismiss Chambers' petition. The trial court then denied Javaras' motion to dismiss. Javaras insisted that the trial court forthwith decide the merits of Chambers' petition since any later evidentiary hearing would impermissibly extend the redemption period beyond June 20, 1979, its expiration date.

The court then ordered the redemption period extended from June 20, 1979, to July 31, 1979. On June 26, 1979, Javaras filed his notice of appeal contending that the order extending the statutory period of redemption was void as a matter of law, and that its entry was legally improper. On July 24, 1979, Chambers deposited with the sheriff of Cook County the sum necessary to redeem the property from the foreclosure.

OPINION

I

The statutory period of redemption from the foreclosure sale of property encumbered by a mortgage executed prior to August 7, 1961, is 12 months after the date of the foreclosure sale. (Ill. Rev. Stat. 1977, ch. 77, par. 18.) The aim of the redemption statute is to grant the debtor time and an opportunity within which to obtain financial resources in order to pay the indebtedness and thus avoid the loss of his property.

"The statutes are not intended to take the landowner's property unjustly or for an inadequate consideration. They are not intended to penalize the debtor for his default nor to reward the purchaser by unjust enrichment above the amount of his debt at the expense of the landowner and his other creditors." Skach v. Sykora (1955), 6 Ill.2d 215, 221, 127 N.E.2d 453, 456.

Chambers urges that in view of the purpose of the redemption statute, we should uphold the trial court's liberal construction of the redemption statute allowing for an extension of the redemption period since such construction would not result in injury to Javaras. Chambers particularly urges that the extension was proper because her petition for extension was filed ...


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