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06/29/94 NORTHERN TRUST COMPANY v. AMERICAN

June 29, 1994

THE NORTHERN TRUST COMPANY, PLAINTIFF-APPELLEE,
v.
AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO, AS T/U/T UNDER TRUST NO. 109002, SAUL STONE AND COMPANY, UNKNOWN OWNERS, DEFENDANTS, AND THOMAS J. FARRELL, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable Richard J. Curry, Judge Presiding.

Greiman, Rizzi, Cerda

The opinion of the court was delivered by: Greiman

JUSTICE GREIMAN delivered the opinion of the court:

Defendant Thomas J. Farrell appeals the trial court's orders which entered a default judgment against him in a mortgage foreclosure action (December 10, 1991) and which denied his motion to vacate the default judgment (February 3, 1992). We affirm.

On February 26, 1991, plaintiff The Northern Trust Company filed a verified complaint to foreclose on a mortgage executed by plaintiff in April 1989 encumbering two buildings, apparently residential property. At the time the complaint was filed, the outstanding balance was $525,126.10 with interest accruing at the rate of $156.39 per day. Defendant was personally served with summons on July 2, 1991.

On September 17, 1991, the trial court allowed defendant leave to file his appearance by his attorneys Vedder, Price, Kaufman & Kammholz although such filing was 45 days overdue. The trial court further granted defendant's motion for a 14-day extension to file his response to plaintiff's complaint and plaintiff's motion for judgment of foreclosure, setting the due date for defendant's pleadings on October 2, 1991.

On October 3, 1991, defendant moved for another 14-day extension of time to file a response to plaintiff's complaint on the grounds that defendant was negotiating with a lender to refinance the indebtedness which was the subject of the lawsuit. Defendant set this motion for extension of time to be heard on October 31, thereby seeking, in effect, a 43-day extension since the motion would not be heard until October 31 and, if granted, would not require defendant to respond to plaintiff's complaint until November 14, 1991.

On October 30, 1991, the trial court entered an order granting defendant's motion for the additional extension of time allowing defendant until November 13, 1991, to file an answer to plaintiff's complaint. The order specifically stated, with the emphasis noted, that "This date is FINAL."

Defendant's attorneys (Vedder, Price) next filed a motion, set to be heard on November 13, 1991, to withdraw as attorneys for defendant "because substantial and irreconcilable differences with respect to the future conduct of the litigation have arisen, because an agreement with respect to expenses and fees has not been fulfilled, and because the client has consented to termination of the lawyers' employment after disclosure."

On November 13, 1991, the trial court granted defendant's attorneys leave to withdraw and granted defendant 21 days to file a supplemental appearance. The order continued the matter until December 10, 1991, at which time the court would hear plaintiff's motion for judgment of foreclosure. The order further specifically stated, with the emphasis noted, "This is a FINAL continuance."

On December 4, 1991, defendant, who identified himself as an attorney, filed a supplemental appearance to represent himself.

On December 10, 1991, a hearing was held on plaintiff's motion for judgment, foreclosure and sale. Defendant appeared on his own behalf and stated that he had been diligently working to find an attorney and retained an attorney named Steve Goldberg who was not present due to a scheduling conflict but "might be able to appear next week." Defendant asserted that he had "a very legitimate defense" and "would like an opportunity to present it." Plaintiff reminded the court of the previous extensions granted, of defendant's failure to file a response to date, and of the two final dates already entered in this matter. The trial court observed:

"If Mr. Goldberg is going to come in, if possible, he can get this vacated, especially if those affirmative defenses are reported as indicated; but nothing has been filed. And somebody should have come up with your affirmative defenses by now."

The trial court entered a default order, a judgment of foreclosure and sale, and an order appointing a selling officer to sell the ...


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