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FIREMAN'S FUND MORTG. CORP. v. ZOLLICOFFER

February 27, 1989

FIREMAN'S FUND MORTGAGE CORP. f/k/a MANUFACTURERS HANOVER MORTAGE CORP., Plaintiff,
v.
MONDELL ZOLLICOFFER, SHIRLEY J. ZOLLICOFFER, and HARRY YOURELL, REGISTRAR OF TITLES, Defendants. MONDELL ZOLLICOFFER and SHIRLEY J. ZOLLICOFFER, Counter-Plaintiffs, v. FIREMAN'S FUND MORTGAGE CORP. f/k/a MANUFACTURERS HANOVER MORTGAGE CORP., Counter-Defendant



The opinion of the court was delivered by: NORGLE

 CHARLES RONALD NORGLE, UNITED STATES DISTRICT JUDGE:

 As a result of the death of Mondell Zollicoffer, both Fireman's Fund Mortgage Corp. ("Fireman's Fund") and Shirley Zollicoffer have filed motions for substitution pursuant to Fed. R. Civ. P. 25(a). Fireman's Fund moves that Shirley Zollicoffer, in her capacity as administratrix of the estate of her deceased husband, Mondell Zollicoffer, be substituted as a defendant in place of Mondell Zollicoffer. Shirley Zollicoffer moves that she, as administratrix of her husband's estate, be substituted both as a defendant and as a counter-plaintiff in place of Mondell Zollicoffer. For the following reasons, Shirley Zollicoffer, in her capacity as administratrix of Mondell Zollicoffer's estate, is substituted in place of Mondell Zollicoffer as a defendant and as a counter-plaintiff in all the counterclaims asserted by Mondell Zollicoffer.

 FACTS

 On February 11, 1987, Fireman's Fund filed a complaint to foreclose the mortgage on the Zollicoffers' residence and to obtain judgment on the underlying note. Mondell and Shirley Zollicoffer answered and asserted counterclaims for trespass to land, breach of mortgage contract, violation of statutory remedies, breach of implied covenant of good faith and fair dealing, forcible entry, conversion and punitive damages. On September 6, 1988, Mondell Zollicoffer died. After the suggestion of Mondell Zollicoffer's death on the record, both Fireman's Fund and Shirley Zollicoffer timely filed motions for substitution. Fireman's Fund objects to Shirley Zollicoffer's motion that she, as administratrix, be substituted as a counter-plaintiff in Mondell Zollicoffer's counterclaims for violation of statutory remedies, forcible entry and punitive damages, on the grounds that those counterclaims did not survive Mondell Zollicoffer. The court will treat Fireman's Fund's objection as a motion to dismiss those counterclaims to the extent they are brought on behalf of Mondell Zollicoffer.

 DISCUSSION

 Whether Fireman's Fund's and Mondell Zollicoffer's claims survive Mondell Zollicoffer such that Shirley Zollicoffer, as his representative, may defend against and assert them, respectively, is determined by the law of Illinois, as the cause of action arose in Illinois and Illinois has the most significant relationship to this matter. See In re Air Crash Disaster Near Chicago, Illinois on May 25, 1979, 644 F.2d 594, 611-12 (7th Cir. 1981).

 Under Illinois common law, the death of either party abates a personal cause of action, Olson v. Scully, 296 Ill. 418, 422-23 129 N.E. 841, 842 (1921), but actions primarily based upon property rights survive. Shapiro v. Chernoff, 3 Ill. App. 3d 396, 402-03, 279 N.E.2d 454, 458 (1st Dist. 1972). The determination of whether an action was based upon a property right was often straight forward with contract actions surviving, see Parkway Bank & Trust Co. v. LeVine, 45 Ill. App. 3d 497, 499, 359 N.E.2d 882, 884, 4 Ill. Dec. 49 (1st Dist. 1977), and tort actions for personal injuries abating. See Froud v. Celotex Corp., 107 Ill. App. 3d 654, 657, 437 N.E.2d 910, 912, 63 Ill. Dec. 261 (1st Dist. 1982) rev'd on other grounds, 98 Ill. 2d 324, 456 N.E.2d 131, 74 Ill. Dec. 629 (1983); North Chicago St. R. R. Co. v. Ackley, 171 Ill. 100, 105, 49 N.E. 222, 224 (1898). In other instances, the courts looked to whether the cause of action was assignable and thus survived. See Creighton v. Pope County, 386 Ill. 468, 475, 54 N.E.2d 543, 547 (1944); Shapiro v. Chernoff, 3 Ill. App. 3d at 403, 279 N.E.2d at 458; First Nat'l Bank of Danville v. Taylor, 329 Ill. App. 49, 55, 67 N.E.2d 306, 310 (1946). Statutory causes of action did not survive unless specifically declared to do so by the statute creating the cause of action or some other statute. See Sickler v. National Dairy Products Corp., 67 Ill. 2d 229, 235, 367 N.E.2d 674, 677-78, 10 Ill. Dec. 221 (1977); Shapiro v. Chernoff, 3 Ill. App. 3d at 401, 279 N.E.2d at 457.

 The legislature supplemented this common law rule to allow the representative of the deceased to recover damages for certain other injuries to the deceased. Laws 1871-72 p. 77 ยง 123 (predecessor to current statute). In its current form, the Illinois Survival Act ("Survival Act") provides in part:

 
In addition to the actions which survive by the common law, the following also survive: actions of replevin, actions to recover damages for an injury to the person (except slander and libel), actions to recover damages for an injury to real or personal property or for the detention or conversion of personal property, . . .

 Ill. Rev. Stat. ch. 110-1/2, para. 27-6 (1987).

 The Common Law Claims and Counterclaims

 Fireman's Fund's claims for foreclosure of the mortgage and judgment on the underlying note and Mondell Zollicoffer's counterclaims for breach of mortgage contract and breach of implied covenant of good faith and fair dealing are contractual in nature, based upon property rights, and thus survive Mondell Zollicoffer under the common law. See. e.g., Parkway Bank & Trust Co. v. LeVine, 45 Ill. App. 3d at 499, 359 N.E.2d at 884; People ex rel. Powles v. County of Alexander, 310 Ill. App. 602, 605, 35 N.E.2d 92, 94 (4th Dist. 1941) (implied contracts survive under common law); Rogge v. Menard County Mutual Fire Ins., 184 F. Supp. 289, 294 (S.D.Ill. 1960).

 The counterclaim for conversion, an action based on property rights, survived under the common law. See Shedd v. Patterson, 312 Ill. 371, 373, 144 N.E. 5, 5-6 (1924); Periard v. Nelson, 14 Ill. App. 2d 566, 571, 145 N.E.2d 172, 174-75 (2d Dist. 1957). The counterclaim for trespass to land is also based soley on property rights. Thus it would also, at first glance, appear to survive under the common law. However, the common law as received in Illinois did not provide for the survival of actions for injury to real property. See Shedd v. Patterson, 312 Ill. at 373-374, 144 N.E. at 6; (1924) citing Reed v. P & O R. R. Co., 18 Ill. 403, 403-04 (1857). In any event, both are ...


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