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08/02/94 MARRIAGE MADELINE ELLIOTT v. ROBERT

August 2, 1994

IN RE MARRIAGE OF MADELINE ELLIOTT, PETITIONER, AND ROBERT ELLIOTT, RESPONDENT. FOSTER MORTGAGE CORPORATION, PLAINTIFF-APPELLANT,
v.
ROBERT ELLIOTT, MADELINE ELLIOTT, ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. No. 90 D 7092. Honorable Susan Snow, Judge Presiding.

As Modified on Denial of Rehearing. Released for Publication September 13, 1994. As Corrected October 19, 1994.

Hartman, Scariano

MODIFIED ON DENIAL OF REHEARING

Justice McCORMICK delivered the opinion of the court:

This is an interlocutory appeal, pursuant to Supreme Court Rule 307(a)(1) (134 Ill. 2d R. 307(a)(1)), from the grant of an injunction against Foster Mortgage Corporation (mortgagee). The mortgagee contends that the trial court abused its discretion because the injunction improperly deprived the mortgagee of a forum for determination of the contractual obligation due from Madeline Elliott and Robert Elliott (mortgagors). We find merit in the mortgagee's contention and vacate the injunction.

Madeline Elliott and Robert Elliott were parties to a petition for dissolution of marriage pending in the domestic relations division of the circuit court of Cook County. Included among the marital property of the Elliotts was their residence encumbered by a mortgage in favor of the mortgagee. Subsequently, the mortgagee filed a mortgage foreclosure action in the chancery division of the circuit court of Cook County. The mortgage foreclosure complaint alleged a delinquency in the payment of monthly installments of principal, taxes, interest and insurance premiums. Madeline Elliott successfully petitioned the trial court to consolidate the mortgage foreclosure action into the dissolution action. Thereafter, the trial court enjoined the mortgagee from "proceeding with its mortgage foreclosure * * * against the property * * * pending Disposition of all issues and final Disposition of" the dissolution matter. At the time the court entered this order, the mortgagors were 13 months in arrears in theirmortgage payments and had failed to answer the mortgage foreclosure complaint.

The mortgagee appeals pursuant to Supreme Court Rule 307(a)(1), which authorizes interlocutory appeals from injunctive orders. Since the order restrains the mortgagee from exercising his legal rights under the mortgage, it is an appealable injunction. (See In re A Minor (1989), 127 Ill. 2d 247, 261, 537 N.E.2d 292, 130 Ill. Dec. 225.) The court did not purport to decide the parties' rights under the mortgage, and the court's order, which was to remain in effect until final Disposition of the divorce action, was of sufficient duration to qualify as a preliminary injunction rather than a temporary restraining order. See Murges v. Bowman (1993), 254 Ill. App. 3d 1071, 1080, 194 Ill. Dec. 214, 627 N.E.2d 330.

The essence of the mortgagee's contention is that the trial court abused its discretion by preliminarily enjoining the mortgagee from foreclosing on the mortgage. The trial court had authority to enter a preliminary injunction to preserve and protect the interests of the parties in the marital property. ( In re Marriage of Schweihs (1991), 222 Ill. App. 3d 887, 584 N.E.2d 472, 165 Ill. Dec. 293.) The trial court may enjoin a party from pursuing a legal action "if further prosecution appears * * * to cause undue interference with the progress" of another action. ( National Hockey League v. Intermart, Inc. (1984), 127 Ill. App. 3d 1072, 1077, 470 N.E.2d 1, 83 Ill. Dec. 246.) Courts use the same standards for preliminarily enjoining legal actions as for other preliminary injunctions. (See Eppers v. First National Bank of Lake Forest (1987), 151 Ill. App. 3d 902, 909-10, 503 N.E.2d 589, 104 Ill. Dec. 874.) Thus, the mortgagors seeking the injunction needed to establish that: (1) they had a right which needed protection; (2) they would suffer irreparable harm if mortgagee foreclosed; (3) they had no adequate remedy at law; and (4) they were likely to succeed on the merits. ( Cross Wood Products v. Suter (1981), 97 Ill. App. 3d 282, 284, 422 N.E.2d 953, 52 Ill. Dec. 744.) "In addition, the court must conclude that the grant of the temporary relief outweighs any possible injury which the defendant might suffer by its issuance." Suter, 97 Ill. App. 3d at 284.

The injunction here permitted the mortgagors to continue efforts to sell their home on the open market rather than forcing them to sell in the foreclosure proceeding, so the order improved the mortgagors' chances of salvaging their equity in the property. However, the court made no provision for the payments of ongoing obligations accruing to the mortgagee. Nor did the trial court require mortgagors to post bond to assure the availability of adequate funds to cover their debt if the property's value decreased or if the mortgagors' ever-increasing debt to the mortgagee surpassed the value of the property. The injunction effectively provides no protection for the mortgagee's interest in the property.

The trial court could reasonably exercise its discretion in favor of maintaining the status quo, absent a threat to the interest of a party, if the sale of the property is thought to be immediately forthcoming. In such a case the possible loss for the mortgagors of a substantial part of the value of the property, through a forced sale in foreclosure, could outweigh the mortgagee's loss from a brief delay in obtaining repayment. This criteria is not met in the case at bar because mortgagors have no real estate sales contract or other reasonable indicia of an imminent sale. Here, the mortgagors' interest in obtaining the best price for the property can no longer outweigh the injury to the mortgagee from the indefinite delay of its recovery for its loan.

When a court enjoins a mortgagee from proceeding with its foreclosure action, the injunction must embody some scheme or method of imposing a reasonable time limitation or otherwise protecting the mortgagee's interests. Requiring the mortgagee to wait for Conclusion of the marriage dissolution proceedings is not reasonable. The entering of the injunction under the facts and circumstances of this case was an abuse of the trial court's discretion.

We hereby vacate the injunction and remand this matter to the circuit court of Cook County for further proceedings consistent with this opinion.

Reversed and remanded.

Hartman, J., ...


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