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LOMAS & NETTLETON CO. v. HUMPHRIES

January 24, 1989

THE LOMAS & NETTLETON COMPANY, Plaintiff,
v.
JESSEE HUMPHRIES and BEULAH HUMPHRIES, Defendants


Ilana Diamond Rovner, United States District Judge.


The opinion of the court was delivered by: ROVNER

HONORABLE ILANA DIAMOND ROVNER, UNITED STATES DISTRICT JUDGE

 The parties came close to reaching a resolution which would allow defendants to reinstate the mortgage. The sticking point in the negotiations, however, was attorneys' fees. Defendants filed a motion to reinstate the mortgage which requested a ruling that defendants are not liable for plaintiff's costs and attorneys' fees. Plaintiff, in opposing the motion, now contends that reinstatement is no longer allowable because the ninety-day statutory reinstatement period has passed.

 The Illinois statute governing recovery of costs and attorneys' fees in the event of reinstatement provides in part:

 
In any foreclosure of a mortgage executed after July 21, 1959, which has become due prior to the maturity date fixed in the mortgage, or in any instrument or obligation secured by the mortgage, through acceleration because of a default under the mortgage, a mortgagor may reinstate the mortgage as provided herein. Reinstatement is effected by curing all defaults then existing, other than payment of such portion of the principal which would not have been due had no acceleration occurred, and by paying all costs and expenses required by the mortgage to be paid in the event of such defaults, provided that such cure and payment are made prior to the expiration of 90 days from the date the mortgagor or, if more than one, all the mortgagors (i) have been served with summons or by publication or (ii) have otherwise submitted to the jurisdiction of the court. . . .

 Ill. Rev. Stat. ch. 110 para. 15-1602 (emphasis added). The parties agree that this statute allows plaintiff to recover the costs and attorneys' fees "required by the mortgage." They disagree over what the mortgage requires. The mortgage provides in part:

 
In case of foreclosure of this mortgage by said mortgagee in any court of law or equity, a reasonable sum shall be allowed for the solicitor's fees of the complainant in such proceeding and for the stenographer's fees of the complainant in such proceeding, and also for all outlays for documentary evidence and the cost of a complete abstract of title for the purpose of such foreclosure. . . .

 (Emphasis added.)

 The dispute centers on the meaning of the term "foreclosure" in the mortgage. Defendants argue that a reinstatement is not a foreclosure, that a foreclosure does not occur where the case does not proceed to judgment, and that a reinstatement is not mentioned in the mortgage as a circumstance giving rise to liability for costs and attorney's fees.

 Plaintiff argues that "foreclosure" refers not to a final judgment of foreclosure but to an action for foreclosure. In support of this argument, plaintiff cites Ill. Rev. Stat. ch. 110 para. 15-1203, which defines "foreclosure" as "an action commenced under this Article."

 Defendants reply that such a definition would allow the mortgagee to recover costs and attorneys' fees even in cases in which the defendants prevail on the merits.

 The Court finds that "foreclosure" has the meaning urged by plaintiff. The Illinois statute consistently uses the word to refer to the proceeding itself, not to its resolution. For example, § 15-1602 further provides that "'to foreclose' means to terminate legal and equitable interests in real estate pursuant to a foreclosure." (Emphasis added.) Similarly, § 15-1602 sets forth the reinstatement procedure allowed "in any foreclosure of a mortgage." (Emphasis added.)


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