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Itt Thorp Corp. v. Hitesman

OPINION FILED MAY 26, 1983.

ITT THORP CORPORATION, PLAINTIFF-APPELLANT,

v.

MARY LOUISE HITESMAN, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Peoria County; the Hon. Thomas G. Ebel, Judge, presiding.

PRESIDING JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:

Rehearing denied July 8, 1983.

Plaintiff ITT Thorp Corporation filed a complaint for foreclosure of a real estate mortgage against defendant Mary Louise Hitesman and other parties not germane to this appeal. After defendant failed to appear, plaintiff obtained a default judgment for foreclosure and sale. Thereafter defendant filed an answer to the original complaint and a motion to set aside the default judgment, which was granted. After the subsequent bench trial on the merits, the circuit court of Peoria County granted judgment in defendant's favor.

On December 4, 1980, defendant mortgaged certain properties to secure a loan from plaintiff. In June 1981, she was stricken with a heart ailment and was thereafter unable to continue her employment. As a result of this, defendant was unable to make her monthly loan payments after September 1981. She thereafter contacted plaintiff to see if she could increase the term of the loan to lower her payments. Defendant was advised that increasing the term would not benefit her due to the amount of interest, and that plaintiff might be forced to commence a foreclosure action against her. On March 5, 1982, it did so.

Among the various instruments defendant admitted to signing on December 4, 1980, was an application for insurance and notice to loan applicant. By means of this instrument, a borrower was able to apply for credit disability, credit life, and property insurance. Defendant's application reflected her election to be covered by single decreasing credit life insurance. Near the top of the printed form appears the following in red letters:

"INSTRUCTIONS: This request For Insurance Must Be Filled In And Signed BEFORE The Note Is Completed. Applicant(s) Must Initial Appropriate Box If Insurance Is Requested." (Emphasis added.)

Accordingly, the box next to the elected life insurance was initialed. No other box was. Near the bottom of the form appears the printed statement "I [we] desire Credit Life Insurance," immediately below which is a line for a date and signature. On defendant's application, the date and her signature appear on this line. There are other such lines, including one above which appears on the printed statement "I desire Credit Disability Insurance." On defendant's application, none of these other lines are dated or signed.

In her answer and in her trial testimony, defendant responded that the mortgage and note in question were signed in blank and completed at a later time. As for the insurance application, defendant offered the following explanation on direct examination as an adverse witness:

"Q. And it states here on the application then, that you are applying for single decreasing credit life with premium of $1625 for 120 months?

A. Yes.

Q. Or over ten years?

A. He had me initial that.

Q. Also, I'd like to point out, there were other alternatives here where it says `Credit Disability Insurance will cost,' that is all crossed out and then amount of monthly ...


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