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08/11/89 Linas Burys, v. First Bank of Oak Park Et

August 11, 1989





543 N.E.2d 253, 187 Ill. App. 3d 384, 135 Ill. Dec. 18 1989.IL.1235

Appeal from the Circuit Court of Cook County; the Hon. Dean Sodaro, Judge, presiding.


JUSTICE COCCIA delivered the opinion of the court. MURRAY, P.J., and LORENZ, J., concur.


Plaintiff Linas Burys appeals from an order entered by the circuit court, granting summary judgment in favor of defendant First Bank of Oak Park upon counts II and III of his complaint. First Bank cross-appeals from the circuit court's refusal to dismiss those counts on the grounds that they were barred by a prior judgment. Because Burys has now abandoned the claims he pled in counts II and III, and because he now raises claims he did not plead below, we affirm the circuit court's entry of summary judgment against him. In light of this Conclusion, we need not reach First Bank's cross-appeal; accordingly, we dismiss it.

Burys' complaint was filed on October 28, 1982. He alleged therein that First Bank owned an office building located at 1515 North Harlem Avenue. In 1977, First Bank sold that property to Milfred Towne and Howard Orleans, who are not parties in this case. First Bank, as trustee, and Towne and Orleans, as beneficiaries, created a land trust, which took title to the property. The transaction was financed by two bearer notes secured by a trust deed. Paragraph 14 of the real estate sales contract entered into by First Bank, as seller, and Towne and Orleans, as buyers, stated:

"Seller agrees that on the Due Date, provided there shall be no default under either of the Notes or the mortgage securing both of the Notes, the obligation for repayment of both of the Notes shall be extended and modified . . .."

In 1980, Burys claims, Towne and Orleans agreed to assign him their rights and obligations under the trust deed, the notes, and the contract, when they were unable to pay for certain repairs he made to the building.

In count I of his complaint, Burys charged First Bank with fraud. He claimed that First Bank falsely represented to him that it would extend the repayment period of the notes if he agreed to assume the obligations of Towne and Orleans. Thereafter, according to Burys, First Bank fraudulently refused to extend the notes.

Burys defaulted on the notes, however, and First Bank successfully prosecuted a foreclosure action. (Burys states that, although he did not appeal the foreclosure judgment, he has since redeemed the property.) First Bank then moved to dismiss his complaint on the grounds that the theories he pled were virtually identical to affirmative defenses which he raised, and which were rejected, in the foreclosure action. Thus, First Bank argued, Burys' claims were barred by the foreclosure judgment. The circuit court concluded that only count I of Burys' complaint was barred and dismissed it. Burys has not appealed the dismissal of count I, so it is not before us.

In count II, Burys charged First Bank with anticipatory breach of its written agreement to renew the notes. Prior to the notes' due date, alleged Burys, he demanded that First Bank renew them, but it refused to do so.

Burys alleged that First Bank was guilty of breach of its fiduciary duties in count III. By failing to renew the notes when they were due, Burys asserted, First Bank acted inconsistently with its duties as trustee of the land trust, of which he had become a beneficiary.

After obtaining the dismissal of count I of Burys' complaint, First Bank moved for summary judgment on counts II and III. Regarding count II, First Bank contended that under paragraph 14 of the real estate sales contract, quoted above, the notes' extension was conditioned upon the absence of default. Inasmuch as Burys was undeniably in default, given its success in the foreclosure action, First Bank asserted that it had not committed breach of contract by refusing to extend the notes. Regarding count III, First Bank argued that under Illinois law, a land trustee cannot commit breach of fiduciary duty toward a beneficiary by acting as a creditor of the debtor trust. ...

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