APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION
531 N.E.2d 979, 176 Ill. App. 3d 933, 126 Ill. Dec. 352 1988.IL.1706
Appeal from the Circuit Court of Cook County; the Hon. Harold Siegan, Judge, presiding.
PRESIDING JUSTICE LORENZ delivered the opinion of the court. PINCHAM and MURRAY, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LORENZ
This appeal arises out of rulings in favor of plaintiffs, purchasers, on cross-motions for summary judgment, in an action for return of earnest money deposit on a real estate contract. The single issue presented is whether the trial court correctly ruled that the mailing of a certified letter to defendant seller, advising of plaintiffs' inability to secure a mortgage commitment on the 60th day after execution of the contract for sale, constituted timely notice of such condition releasing plaintiffs from their contractual obligation to purchase.
The following facts are pertinent to this appeal.
Pursuant to a standard form real estate contract dated September 21, 1987, plaintiffs, Fred and Rachele Zito, agreed to purchase premises owned by defendant, Paula Guttilla, at 1646 N. 18th Avenue in Melrose Park, Illinois. In accordance with the contract's provisions, plaintiffs deposited $15,000 in earnest money with defendant DeMoon Realty. The contract was conditioned both on plaintiffs' ability to procure a mortgage commitment for the purchase of the property, as well as plaintiffs' ability to secure a contract for the sale of their, then, present residence. Under the failure of either of those conditions, plaintiffs would be released from their contractual obligation with refund of their earnest money deposit so long as plaintiffs "served notice [to] defendant within the time specified." Pertinent to proper notice, the contract provided, in paragraph P:
"All notices herein required shall be in writing and shall be served on the parties at the address following their signatures. The mailing of a notice by registered or certified mail, return receipt requested, shall be sufficient service."
Plaintiffs' attempts to sell their current residence were unsuccessful and plaintiffs were unable to procure a mortgage commitment. In a letter dated November 20, 1987, plaintiffs sought to notify defendant of their inability to satisfy the contract's terms. The receipt for the certified mailing of that letter bears a postal stamp indicating that the letter was mailed on November 21, 1987, the 60th day following the date of the contract's execution. Defendant received the letter three days later. However, plaintiffs were not refunded their earnest money deposit.
On December 18, 1987, plaintiffs filed a complaint against defendants Guttilla and DeMoon Realty for declaratory, injunctive, and other relief in an effort to recover the earnest money deposit. An appearance was filed by defendant Guttilla and, on January 11, 1988, defendant moved for summary judgment on the basis that receipt of the letter on the 63rd day after execution of the contract constituted invalid notice. On January 29, 1988, plaintiffs filed a cross-motion for summary judgment, attaching the affidavit of plaintiff, Fred Zito, attesting to the dates of the events set forth above.
On March 8, 1988, following a hearing on both motions, the trial court granted plaintiffs' motion for summary judgment, denied defendant's motion, and ordered defendant DeMoon Realty to return to ...