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12/29/88 Chicago Title & Trust v. George E. Anderson Et Al.

December 29, 1988





532 N.E.2d 595, 177 Ill. App. 3d 615, 126 Ill. Dec. 910 1988.IL.1917

Appeal from the Circuit Court of Cook County; the Hon. Roger J. Kiley, Jr., Judge, presiding.


JUSTICE McMORROW delivered the opinion of the court. JIGANTI, P.J., and JOHNSON, J., concur.


Defendant George E. Anderson (Anderson) and his attorney Aaron Spivack (Spivack) appeal from a trial court order requiring them to pay a portion of plaintiff's attorney fees as a sanction pursuant to section 2-611 of the Illinois Code of Civil Procedure (Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2-611). Plaintiff argued that sanction was appropriate because of allegedly erroneous factual assertions made in Anderson's answer to plaintiff's complaint and Anderson's allegedly improper opposition to plaintiff's motion for summary judgment. Anderson's answer and response to the summary judgment motion arose from a mortgage foreclosure action instituted by plaintiff against Anderson. *fn1 The challenged factual assertions stated in essence that Anderson had not defaulted on the mortgage payments and related expenses.

Spivack represented Anderson in the mortgage foreclosure proceeding and filed the answer and response on Anderson's behalf. Eventually plaintiff prevailed on the merits pursuant to its motion for summary judgment. Thereafter, upon plaintiff's motion, the trial court imposed an attorney fee sanction against both Anderson and Spivack based upon their violations of section 2 -- 611. The court apparently determined that Anderson failed to make a reasonable inquiry to support the factual representations made in his answer to plaintiff's complaint. The trial court further determined that an objective assessment of the documentary evidence produced by Anderson during discovery should have prompted Spivack to realize that his client was in default, and that Spivack should have so admitted when plaintiff filed its motion for summary judgment.

Because we find that the trial court's decision was not an abuse of discretion, we affirm.


The following chronology derives from both plaintiff's mortgage foreclosure action and the court's subsequent sanction hearing.

The mortgage agreement at issue in plaintiff's foreclosure action was executed by plaintiff and Anderson on March 10, 1986, and was secured by commercial real estate located at 615-21 West 103rd Street in Chicago. According to the agreement, Anderson was to pay monthly installments of principal and interest in the amount of $1,080.15 and monthly deposits for real estate taxes and insurance premiums. At the time suit was filed, the aggregate of these sums amounted to approximately $1,600. The record does not disclose whether Anderson made separate payments for the mortgage, insurance premiums, and real estate taxes, or whether these amounts were due in one consolidated monthly payment., Plaintiff filed its complaint to foreclose on the mortgage on January 5, 1987. The complaint alleged the following in paragraph 3(i):

"Defaults and amount now due: The mortgagors, George E. Anderson and Edward M. Robinson, are in default of the Mortgage and of the Note, having made only full monthly payments to and including September 1986, and one partial monthly payment in October 1986, and no monthly payments have been [ sic ] since October 1986. There is in default payments due as of the filing of this lawsuit in the amount of $2,795.45 for monthly installments of principal and interest, together with the sum of $784.55 for unpaid deposits of real estate taxes and insurance premiums through the present . . .."

Attorney Spivack filed an appearance on Anderson's behalf on February 20, 1987, and was granted leave to file an answer to the complaint instanter on March 23. This answer, signed by Spivack, was comprised of general admissions to or denials of each paragraph alleged in plaintiff's complaint. Thus Anderson's answer stated that he "[denied] allegations in paragraph 3(i)." Anderson also denied two other paragraphs in plaintiff's complaint, one of which also pertained to mortgage default, but these denials are not at issue in this appeal.

According to Spivack, the denial of default stated in Anderson's answer derived from Anderson's representation to Spivack that Anderson believed his payments were current. Anderson also told Spivack that he did not have all the documents to prove that payments were current, because former tenants of the property had been making rental payments directly to the mortgage holder in the form of third-party checks. Spivack later also explained to the court at the sanction hearing that he did ...

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