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08/25/94 COSMOPOLITAN NATIONAL BANK CHICAGO v.

August 25, 1994

THE COSMOPOLITAN NATIONAL BANK OF CHICAGO, AS TRUSTEE UNDER TRUST NO. 28266, DATED SEPTEMBER 1, 1987, PLAINTIFF-APPELLEE,
v.
MARICELLA T. NUNEZ, DEFENDANT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE SHELDON GARBER, JUDGE PRESIDING.

Released for Publication September 27, 1994.

Hoffman, Johnson, Cahill

The opinion of the court was delivered by: Hoffman

PRESIDING JUSTICE HOFFMAN delivered the opinion of the court:

The defendant, Maricella T. Nunez, appeals from a judgment of possession of property entered in favor of the plaintiff, the Cosmopolitan National Bank of Chicago, as trustee under trust number 28266. We consider whether the appeal is moot because the plaintiff conveyed the property to a third party while the appeal was pending. For the following reasons, we dismiss the appeal.

Under an agreement for a trustee's deed dated June 8, 1990, the plaintiff, as the title holder of commercial property located at 2142-46 West Chicago, in Chicago, Illinois, agreed to sell the property to the defendant for $12,767.36. The defendant agreed to pay Gail Perez, as beneficiary of the trust, in monthly installments with a balloon payment due on July 13, 1995. The defendant was required to maintain fire insurance on the property and comply with all municipal ordinances. The agreement also provided that if the purchaser failed to make the payments or otherwise failed to perform:

"[the] contract shall, at the option of the beneficiaries of said trust, or the title holder, be forfeited and determined, and the purchaser shall forfeit all payments made hereunder, and such payments shall be retained by the beneficiaries of said trust, in full satisfaction and as liquidated damages by the beneficiaries of said trust sustained, and in such event the beneficiaries of said trust shall have the right to re-enter and take possession of the premises * * *."

All required notices and demands under the agreement had to be in writing and sent by registered mail to the defendant at 2139 West Chicago Avenue.

On November 5, 1992, the plaintiff sent the defendant and her father a letter by certified and regular mail to 2146 West Chicago. The receipt was signed by the defendant's father, but was not signed by the defendant. The letter stated that it was a "notice of default and intent to foreclose" and that the plaintiff was in default under the agreement for failing to make payments, pay real estate taxes, provide fire or liability insurance, and correct building code violations. The letter stated that $13,704.76 was due in full within 10 days and that the building code violations had to be corrected within 30 days. It further stated: "Your failure to cure these defaults will result in the owner declaring the June 8, 1990 Articles of Agreement forfeited and a foreclosure action being instituted against you regarding your possession of the subject property."

The plaintiff subsequently filed a complaint on January 20, 1993, against the defendant for possession of the property. The plaintiff alleged that the defendant was unlawfully withholding possession after forfeiting the installment agreement for a trustee's deed to the property.

In a hearing on the complaint on April 20, 1993, the defendant admitted that she had not made any payments on the property, that there was no fire insurance on the property in 1992 when a fire damaged the property, and the building code violations had not been corrected. Perez testified that the defendant's father only made payments as required under the note until December 1991.

The trial Judge found that the defendant was unlawfully withholding possession of the premises and entered judgment for possession plus costs in the plaintiff's favor. The defendant now appeals.

Before oral argument, the plaintiff moved this court to dismiss the defendant's appeal as moot because it conveyed the property to a third party, Charlene Roth, while the appeal was pending. The defendant did not request this court to stay the judgment of possession and the record on appeal indicates that the judgment was only stayed for 30 days after it was entered.

Supreme Court Rule 305(b)(1) allows the trial court or the reviewing court to stay the enforcement, force, and effect of any final or interlocutory judgment or order pending appeal. (134 Ill. 2d R. 305(b)(1).) Rule 305(i) provides that "if a stay is not perfected * * * the reversal or modification of the judgment does not affect the right, title, or interest of any person who is not a party to the action in or to any real or personal property that is acquired after the judgment becomes final and before the judgment is stayed * * *." (134 Ill. 2d R. 305(i).) Under the rule, the record must unequivocally disclose that the purchaser was not a ...


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