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10/15/87 Pathway Financial, v. James D. Beach Et Al.

October 15, 1987

PATHWAY FINANCIAL, PLAINTIFF-APPELLEE

v.

JAMES D. BEACH ET AL., DEFENDANTS-APPELLANTS



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

516 N.E.2d 409, 162 Ill. App. 3d 1036, 114 Ill. Dec. 254 1987.IL.1539

Appeal from the Circuit Court of Cook County; the Hon. Arthur L. Dunne, Judge, presiding.

APPELLATE Judges:

JUSTICE LINN delivered the opinion of the court. JOHNSON and JIGANTI, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINN

James D. Beach appeals from the entry of judgment for mortgage foreclosure that was entered September 24, 1986, upon Pathway Financial's motion for summary judgment. Pathway held the mortgage on Beach's home in the original principal balance of $47,700.

While Beach does not deny that he defaulted on the mortgage and owes the money to the bank, he contends that (1) the trial court "wrongfully diminished" Beach's title, which he claims is superior to that of the bank by virtue of a Federal land patent; and (2) the court refused to find that the bank owed Beach a fiduciary duty with respect to explaining the terms and ramifications of the mortgage instruments.

We affirm.

BACKGROUND

Pathway instituted the pending action in May 1986, following Beach's failure to meet the monthly payment obligations under his mortgage for approximately eight or nine months. Initially, Beach contested the jurisdiction of the court by filing a pro se special and limited appearance, along with a motion to dismiss based upon the allegation that the complaint failed to state a cause of action. Attached to the special and limited appearance was an affidavit alleging that Pathway had committed a fraud in the original loan transaction by failing to explain to Beach the waiver of homestead provision in the mortgage.

Pathway filed motions to strike the special and limited appearance and the motion to dismiss. In his answer to these motions, Beach raised allegations and argument relating to his holding of a Federal land patent.

The trial court granted the motions to strike and allowed Beach to appear generally and to file an answer to the complaint. A date was also set for further hearing. Beach then filed a motion to dismiss the complaint, an answer, and a motion to deny Pathway's petition for summary judgment, which petition had been filed previously.

Beach's motion to dismiss included the contention that plaintiff's demand to be paid in specie or currency rather than gold was in violation of the United States Constitution; that Pathway had unlawfully paid for the filing of its complaint in currency rather than in the form of gold and silver, as required under Illinois statute; and that the provision in the promissory note that waived notice of dishonor and presentment was a bar to the action. His answer contained admissions of every paragraph of the complaint except for certain subsections of paragraph 3, which he generally denied.

On September 24, 1986, the trial court heard argument on the motions. The court denied Beach's motion to dismiss and granted Pathway's petition for summary judgment. Judgment of foreclosure was then entered in the amount of $47,348.14. The court also found that the Federal government had a subordinate ...


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