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Gutansky v. Advance Mortgage Corp.

OPINION FILED DECEMBER 3, 1981.

LARRY GUTANSKY ET AL., PLAINTIFFS-APPELLANTS,

v.

ADVANCE MORTGAGE CORPORATION, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. JOSEPH M. WOSIK and the Hon. JOSEPH T. LAVORCI, Judges, presiding.

PRESIDING JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:

The plaintiffs attempted to bring a class action to recover statutory penalties for failure to release a mortgage within the 30 days required by law. The court refused to certify the class action; plaintiffs were granted judgment on their individual claim. The plaintiffs have appealed the denial of certification. We affirm.

Section 2 of "An Act relating to mortgages of property of public utilities" (Ill. Rev. Stat. 1977, ch. 95, par. 52) provides in part:

"Every mortgagee of real property, his assignee of record, or other legal representative, having received full satisfaction and payment of all such sum or sums of money as are really due to him from the mortgagor, and every trustee, or his successor in trust, in a deed of trust in the nature of a mortgage, the notes, bonds or other indebtedness secured thereby having been fully paid after the effective date of this amendatory Act of the 78th General Assembly [October 1975], shall make, execute and deliver to the mortgagor or grantor in a deed of trust in the nature of a mortgage, his heirs, legal representatives or assigns, an instrument in writing releasing such mortgage or deed of trust in the nature of a mortgage or shall deliver that release to the recorder or registrar for recording or registering. If the release is delivered to the mortgagor or grantor, it must have imprinted on its face in bold letters at least 1/4 inch in height the following: `FOR THE PROTECTION OF THE OWNER, THIS RELEASE SHALL BE FILED WITH THE RECORDER OF DEEDS OR THE REGISTRAR OF TITLES IN WHOSE OFFICE THE MORTGAGE OR DEED OF TRUST WAS FILED'. The recorder, or registrar, upon receipt of such a release and the payment of the recording or registration fee, shall record or register the release."

Section 4 of "An Act relating to mortgages of property of public utilities" (Ill. Rev. Stat. 1977, ch. 95, par. 54) provides:

"If any mortgagee or trustee, in a deed in the nature of a mortgage, of real property, or his executor or administrator, heirs or assigns, knowing the same to be paid, shall not, within one month after the payment of the debt secured by such mortgage or trust deed, comply with the requirements of Section 2 of this Act [paragraph 52], he shall, for every such offense, be liable for and pay to the party aggrieved the sum of $200 which may be recovered by the party aggrieved in a civil action, together with reasonable attorney's fees. In any such action, introduction of a loan payment book or receipt which indicates that the obligation has been paid shall be sufficient evidence to raise a presumption that the obligation has been paid. Upon a finding for the party aggrieved, the court shall order the mortgagee or trustee, or his executor or administrator, heirs or assigns, to make, execute and deliver the release as provided in Section 2 of this Act. The successor in interest to the mortgagee or trustee in a deed in the nature of a mortgage shall not be liable for the penalty prescribed in this Section if he complies with the requirements of Section 2 of this Act within one month after succeeding to the interest."

In 1977, plaintiffs Larry and Cynthia Gutansky paid a secured debt owed to defendant Advance Mortgage Corporation. Admittedly defendant did not release the mortgage within the 30 days required by statute. Plaintiffs thereafter filed this action to recover the statutory penalty for themselves and others similarly situated.

The defendant filed a motion for a finding the action could not be maintained as a class action contending (1) a class action could not be brought to recover a penalty, (2) there was no common question of law or fact, citing McCabe v. Burgess (1979), 75 Ill.2d 457, 389 N.E.2d 565, cert. denied (1979), 444 U.S. 916, 62 L.Ed.2d 170, 100 S.Ct. 230. The trial judge granted defendant's motion. While no findings or reasons were included in the order, it appears from the record that the order was entered because the judge believed "class action[s] cannot be maintained to recover a pecuniary statutory penalty."

The trial court also refused to allow an immediate appeal of the denial of class certification. Thereafter summary judgment was entered for plaintiff for the $200 penalty and $200 attorney's fees. It does not appear from the record that defendant, at any time after class certification was denied, disputed its liability on the individual claim. Because plaintiff refused to accept the award and release defendant, payment was made to the court.

I

• 1 Section 57.2 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 57.2), sets out the requirements for the maintenance of a class action:

"Prerequisites for the Maintenance of a Class action. (a) An action may be maintained as a class action in any court of this State and a party may sue or be sued as a representative party of the class only if the court finds:

(1) The class is so numerous that joinder of all members is impracticable.

(2) There are questions of fact or law common to the class, which common questions predominate over any questions ...


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