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UNITED STATES v. 10652 SOUTH LARAMIE OAK LAWN

December 5, 1991

UNITED STATES OF AMERICA, Plaintiff,
v.
10652 SOUTH LARAMIE OAK LAWN, ILLINOIS, Defendant, v. JOHN F. PETROZZA, and OAK LAWN TRUST AND SAVINGS BANK, Claimants.


Kocoras


The opinion of the court was delivered by: CHARLES P. KOCORAS

CHARLES P. KOCORAS, District Judge:

 This matter comes before the court on claimants' motion to amend judgment. For the reasons set forth below, claimants' motion is denied.

 BACKGROUND

 On October 27, 1989, the United States brought a forfeiture action pursuant to 21 U.S.C. ¬ß 881(a)(7) against the property located at 10652 South Laramie, Oak Lawn, Illinois, on the grounds that the property was used to facilitate the distribution of cocaine. Five days later, a Lis Pendens notice was recorded with the Cook County Recorder of Deeds to put all parties on constructive notice that the United States had filed a forfeiture action against the defendant property. On November 2, 1989, this Court found that there was probable cause to seize the defendant property. On November 17, 1989, claims of ownership were filed on behalf of John Petrozza and the Oak Lawn Trust & Savings Bank ("OLB") as Trustee.

 On October 2, 1991, we granted summary judgment in favor of the United States and entered a final judgment of forfeiture against "claimants." On October 22, 1991, we granted claimant OLB's motion to amend judgment after finding that OLB had a valid and subsisting lien on the defendant property, dated October 30, 1974, without knowledge or culpability in the actions of John Petrozza. Now claimants John Petrozza, OLB as Trustee under Trust No. 1388, and Gwendolyn Petrozza, Vincent Petrozza, and Theresa Petrozza, as claimed beneficiaries under Trust No. 1388, move to amend the judgment of forfeiture to reflect their interests in the defendant property.

 DISCUSSION

 Both the United States and OLB, however, argue that the OLB trust does not exist. They argue that the trust failed because the defendant property (the sole res of the trust) was never transferred to the trust, and as a result, claimants have no interest in the defendant property.

 John Petrozza attempted to create the OLB trust two days after this Court ruled that there was probable cause to seize the defendant property. On November 4, 1989, Cole Taylor assigned its interest as Trustee of the defendant property to OLB, and a new trust agreement was signed at OLB which named the claimants as beneficiaries. However, the United States asserts that when OLB learned of the pending forfeiture proceeding, it refused to act as Trustee, rejected the trust and returned it to Cole Taylor.

 Delivery of the trust property to the trustee is an essential component in the creation of a trust. In re Estate of Wilkening, 109 Ill. App. 3d 934, 940-941, 65 Ill. Dec. 366, 441 N.E.2d 158, 163 (1st Dist. 1982). It is essential that the trustee has either possession of or title to the property. In re Glenview Imports, Ltd., 27 Bankr. 496, 500 (Bkrtcy. N.D. Ill. 1983). Moreover, the Trust Agreement itself states that the trust would not be established until OLB took title to the defendant property as Trustee. The evidence presented here shows that OLB never possessed or took title to the defendant property, and thus, the alleged trust was never created.

 In her affidavit, Lucille Hart, a Land Trust Officer at Cole Taylor Bank, states that on November 4, 1989, Cole Taylor was instructed to transfer the land trust on the defendant property, of which it was then acting as trustee, to OLB under Trust Agreement No. 1388. (Hart Affidavit, para.4). However, Hart goes on to state that OLB refused to accept title to the trust, and returned the Trust Deed to Cole Taylor, who continued to act as Trustee under the original trust. (Hart Affidavit, para.5). Hart further states that a form letter she signed on October 29, 1991, which indicated that Cole Taylor no longer had an interest in the defendant property, was in error. (Hart Affidavit, para.3).

 Roberta Cartwright, a Vice-President and Trust Officer with OLB, has also submitted an affidavit detailing the events surrounding the attempted creation, and subsequent refusal, of the OLB trust. Cartwright states that on November 10, 1989, OLB received a deed from Cole Taylor conveying the defendant property to OLB as trustee under Trust No. 1388. (Cartwright Affidavit, para.4). Also on November 10, Cartwright sent a Real Estate Transfer Declaration together with a facsimile of the Assignment of Beneficial Interest in Trust No. 1388 to the Cook County Recorder of Deeds. (Cartwright Affidavit, para.5). On November 13, 1989, OLB received a copy of the letter to John Petrozza containing the Notice of Seizure. Because of the seizure notice, OLB did not send the deed to the Cook County Recorder of Deeds to be recorded. (Cartwright Affidavit, para.7). OLB subsequently notified Cole Taylor of their refusal to accept the trust and returned the deed to the Cole Taylor trust, which was then reopened. (Cartwright Affidavit, para.9-12).

 Furthermore, even if the trust had been created, claimants still would not have an interest in the defendant property. When property is subject to forfeiture based on an illegal act, title to the property vests in the government as of the date of the illegal act, even though ...


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