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Evanston Federal S & L Assoc. v. Parker

OPINION FILED MARCH 5, 1986.

EVANSTON FEDERAL SAVINGS & LOAN ASSOCIATION A/K/A FIRST FEDERAL SAVINGS & LOAN ASSOCIATION, PLAINTIFF,

v.

CALVIN PARKER, JR., ET AL., DEFENDANTS (NATHANIEL BEVINS, INTERVENING PLAINTIFF-APPELLANT; FREDERICK LAPPE, DEFENDANT-APPELLEE).



Appeal from the Circuit Court of Cook County; the Hon. John F. Hechinger, Judge, presiding.

JUSTICE MCGILLICUDDY DELIVERED THE OPINION OF THE COURT:

The plaintiff, Evanston Federal Savings & Loan Association, now known as First Federal Savings & Loan Association by reason of merger (Evanston Federal), filed a complaint in the circuit court of Cook County for mortgage foreclosure against the defendants, Calvin Parker, Jr.; State National Bank by reason of trust deed recorded June 7, 1976, as document Nos. 23509561 and 23760334; General Finance Corporation by reason of mortgage recorded May 19, 1981, as document No. 25875535; St. Francis Hospital by reason of judgment recorded as document No. 26078372; and unknown owners.

The complaint alleged that Evanston Federal was a mortgagee of property commonly known as 1106 Hartrey Avenue in Evanston (subject property). The mortgage was recorded with the Cook County recorder of deeds on October 22, 1963. Parker, the property owner and mortgagor, had not made a mortgage payment since April 27, 1982. The complaint asserted that on diligent inquiry, the names of other persons with right, title, interest, or lien in the subject property could not be ascertained. Evanston Federal published notice of the suit to unknown owners in the Chicago Daily Law Bulletin on January 10, 17 and 24, 1983.

On January 28, 1983, General Finance Corporation filed an answer stating that it held a mortgage on the subject property with a net balance of $7521.64, and requesting to be included in any decree of foreclosure and sale as a lien creditor.

On May 2, 1983, the trial court entered an order of default against Parker, State National Bank, St. Francis Hospital and unknown owners. In addition, on May 2, 1983, the trial court entered a judgment of foreclosure and sale and provided for a six-month redemption period from the date of judicial sale.

On August 1, 1983, Howard Slater filed a petition to shorten the redemption period pursuant to section 12-129 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 12-129). The petition asserted that on June 9, 1983, Slater purchased the subject property at the judicial sale and received a certificate of sale. The petition further asserted that the subject property was abandoned, no one was in possession of the premises and all utilities had been turned off. On August 1, 1983, the trial court entered the following order:

"It is hereby ordered as follows:

1. The court herein finds that the premises at 1106 Hartrey are abandoned and, pursuant to the authority of sec. 12-129 of the Code of Civil Procedure, the redemption period is hereby shortened to 60 days from the date of this order and said redemption period will now expire on September 30, 1983 at which time Howard Slater will be entitled to a Sheriff's deed if no redemption has occurred.

2. On oral motion sustained by the court, Howard Slater is given permission during the remaining redemption period to secure the premises against waste."

On November 9, 1983, Frederick S. Lappe filed a petition to vacate and set aside the order of August 1, 1983, shortening the redemption period, under sections 2-1301(g) and 2-1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, pars. 2-1301(g) and 2-1401). In support of the petition, Lappe stated as follows: On September 14, 1982, the Internal Revenue Service (IRS) at public auction sold to Lappe the same property which is the subject of the present action. The IRS had seized the property from Parker for nonpayment of taxes. Lappe received a certificate of sale of seized property, which he recorded with the Cook County recorder of deeds as document No. 26482285. *fn1 On April 25, 1983, Lappe filed an action in the circuit court of Cook County under the Forcible Entry and Detainer Act (Ill. Rev. Stat. 1981, ch. 57, par. 1 et seq.) and obtained an order for possession of the subject property. The redemption period expired 180 days after the IRS auction. In May 1983, Lappe surrendered the certificate of sale of seized property to the IRS, which subsequently issued a District Director's deed granting and conveying title to the subject property to Lappe. From June 28 until October 20, 1983, Lappe occupied, possessed and controlled the subject property. He expended over $7,000 for construction and renovation and paid $7,578.16 to General Finance Corporation in satisfaction of its mortgage on the property. On or about September 12, 1983, Lappe requested from the sheriff's office of Cook County information on redemption from the June 9, 1983, judicial sale of the subject property. The sheriff's office advised that the last day to redeem would be December 11, 1983. On October 20, 1983, Howard Slater forcibly removed Lappe's contractors and laborers from the premises, claiming that he owned the property. Subsequently, Slater changed the locks and refused Lappe access to the premises. Lappe retained legal counsel, who discovered the trial court's order of August 1, 1983, shortening the redemption period.

In his petition, Lappe contended that the August 1, 1983, order should be vacated because, inter alia, Slater was without standing to make application under section 12-129(a) (Ill. Rev. Stat. 1981, ch. 110, par. 12-129), which authorizes only a mortgagee to apply for a shortened redemption period.

On November 9, 1983, Nathaniel Bevins, who was not a party to the action, filed an answer to Lappe's petition to vacate. The answer indicated that Bevins purchased the subject property from Slater on October 19, 1983. Attached to the answer was Slater's affidavit in which he stated that in July 1983, the premises were vacant; that the water and gas had been disconnected and the electricity would be disconnected for nonpayment; that the utilities were in Parker's name; that Slater "never heard of" Lappe until after Slater obtained title; that Parker told him he did not intend to occupy the premises; and that no deed of the subject property to Lappe had ever been recorded. Also attached to the answer was a letter dated October 28, 1983, from the Evanston city collector's office stating that water was shut off at 1106 Hartrey on June 27, 1983.

Following arguments at the December 2, 1983, hearing on the petition, the trial court ruled that Slater had no standing to apply for a shortened redemption period under section 12-129 and that, therefore, the trial court was without authority to enter its order of August 1, 1983, shortening the redemption period. The court found the August 1, 1983, order voidable and void. The court ordered the August 1, 1983, order to be vacated, set aside and held for naught. The court further ordered that the sheriff's deed issued to Slater pursuant to that order was vacated, set aside, void, held for naught and of no legal force and effect. Finally, the court found that section 2-1401(e) afforded no protection to Bevins, and that the conveyance of the subject property from Slater to Bevins was vacated, set aside, void, held for naught and of no legal force and effect. The order reinstated the original redemption period and its December 11, 1983, expiration date.

On December 7, 1983, the trial court denied Bevins' motions for rehearing and to stay enforcement of its order, and granted his oral motion for leave to intervene in this ...


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