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03/11/88 First State Bank of v. Kenneth Leffelman

March 11, 1988

FIRST STATE BANK OF PRINCETON ET AL., PLAINTIFFS-APPELLEES

v.

KENNETH LEFFELMAN, INDIV. AND AS TRUSTEE-MANAGER OF THE LAZY 'L' FAMILY PRESERVATION TRUST, ET AL., DEFENDANTS-APPELLANTS



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

521 N.E.2d 195, 167 Ill. App. 3d 362, 118 Ill. Dec. 127 1988.IL.350

Appeal from the Circuit Court of Lee County; the Hon. Martin D. Hill, Judge, presiding.

APPELLATE Judges:

JUSTICE NASH delivered the opinion of the court. INGLIS and REINHARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE NASH

Defendants appeal from an order confirming a foreclosure sale and for deficiency judgment entered in favor of the plaintiff, the First State Bank of Princeton (Bank), contending that the trial court erred (1) in failing to offset the homestead of Edward and Susan Leffelman; (2) in failing to allow defendants a jury trial in the foreclosure action; and (3) that all proceedings in this action after October 28, 1985, when defendant, Donald Tangwall, filed a notice of petition for removal of the foreclosure action to the Federal district court are a nullity since a certified copy of the remand order from the Federal court was not filed in the circuit court.

The record discloses that by a trust deed dated October 5, 1981, defendants, Kenneth and Marguerite Leffelman, pledged about 440 acres of farm land to secure a debt to the Bank in the amount of $400,000. The property was subsequently transferred to the Lazy 'L' Family Preservation Trust, with Donald Tangwall as trustee.

On May 10, 1985, the Bank filed a complaint for foreclosure to which defendants responded by filing numerous, sometimes unusual, pleadings in the trial court. One document filed by Kenneth and Marguerite Leffelman which demanded a jury trial was entitled "Notice of Demand for Venireman to Number Twelve." Defendants Edward and Susan Leffelman, and Donald Tangwall, also requested a jury trial. The trial court denied these requests.

On October 28, 1985, Donald Tangwall filed a petition for removal in the trial court which stated that he had filed a petition to remove the cause to the United States District Court for the Northern District of Illinois.

On March 3, 1987, the trial court entered a judgment for foreclosure and sale, and on June 18, 1987, the property was sold to the Bank at the foreclosure sale.

On July 1, 1987, Edward and Susan Leffelman filed a motion for relief from judgment pursuant to section 2-1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-1401), in which they alleged that they were "claiming their Homestead rights by virtue of possession and a lease agreement on said real estate." An affidavit executed by Edward and Susan Leffelman was attached to their motion which stated that they were in possession of certain described property "by virtue of a lease agreement." A hearing on defendants' motion was held July 7, 1987, after which the trial court denied their claims of homestead rights and entered a written order confirming sale and for deficiency judgment.

The Bank contends that this appeal should be dismissed because some of the statements in defendants' brief do not contain references to the record as required by Supreme Court Rule 341(e) (107 Ill. 2d R. 341(e)). Although the defendants' brief is far from a sterling example of legal writing, we note that defendants have appealed pro se and their brief generally contains citations to the record and citation to legal authority in support of their contentions on appeal. We decline to dismiss the appeal because of inadequate briefs.

Defendants contend that the trial court erred by not offsetting the homestead of Edward and Susan Leffelman. The Bank responds that the assertion of homestead was untimely, and, even if the claim of homestead was properly made, Edward and Susan Leffelman failed to plead and prove such a claim. We agree.

Edward and Susan Leffelman first asserted their homestead claim in their motion after judgment brought pursuant to section 2 -- 1401 of the Code of Civil Procedure. It is well established that due diligence requires that a section 2 -- 1401 petitioner have a reasonable excuse for failing to act within the appropriate time, and does not afford a litigant a remedy whereby he may be relieved of the consequences of his or her own mistake or negligence. (Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 222, 499 N.E.2d 1381.) Alleged errors of fact on which a petition for relief from a final order or judgment is based must not have been known to the moving party at the time of judgment. (Lubbers v. Norfolk & Western Ry. Co. (1984), 105 Ill. 2d 201, 209-11, 473 N.E.2d 955.) Here, Susan Leffelman acknowledged at the hearing on the section 2 -- 1401 motion that she was aware of the homestead claim from the inception of the foreclosure action by the Bank, but she said, "I don't feel that it was my duty or obligation to come to [the court] or to [the Bank's attorney] or to the sheriff or anyone else and say to any of you, I have a homestead right, I want you to recognize it on the day of ...


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