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01/20/95 CITICORP SAVINGS ILLINOIS v. FIRST CHICAGO

January 20, 1995

CITICORP SAVINGS OF ILLINOIS, A SAVINGS AND LOAN ASSOCIATION, PLAINTIFF-APPELLEE
v.
FIRST CHICAGO TRUST COMPANY OF ILLINOIS AS TRUSTEE UNDER TRUST AGREEMENT DATED 10/7/91, TRUST #R-011448, LEO FRONTERA, REBECCA FRONTERA, THE REGISTRAR OF TITLES OF COOK COUNTY, ILLINOIS, UNKNOWN OWNERS AND NONRECORD CLAIMANTS, DEFENDANTS-APPELLEES -- PETER J. BILANZIC AND SHARON D. BILANZIC, PETITIONERS-APPELLANTS



Appeal from the Circuit Court of Cook County. Honorable Albert Green, Judge Presiding.

The Honorable Justice Zwick delivered the opinion of the court: *fn1 Egan, J., and Rakowski, J., concur.

The opinion of the court was delivered by: Zwick

The Honorable Justice ZWICK delivered the opinion of the court:

Appellants, Peter and Sharon Bilanzic (the Bilanzics), were high bidders for residential property sold by the sheriff at a mortgage foreclosure sale. The property had been foreclosed by Citicorp Savings of Illinois (Citicorp), after its borrowers, Leo and Rebecca Frontera (the Fronteras), defaulted on their mortgage. The trial Court refused to confirm the sale, finding Citicorp to have sold the property prematurely. The trial court subsequently refused to allow the Bilanzics to intervene in the case and reinstated the Fronteras' mortgage with Citicorp. The Bilanzics bring this appeal pursuant to Supreme Court Rule 301 (134 Ill. 2d R. 301).

There are no significant disputes as to the facts of this case. The Fronteras defaulted on their mortgage with Citicorp sometime in 1992. Citicorp brought a foreclosure action against them, serving the Fronteras on July 24, 1992. On October 15, 1992, the circuit court entered a default judgment against the Fronteras and made a finding pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)). The Fronteras were given notice.

On October 25, 1992, the Fronteras' statutory right to reinstate the mortgage expired. 735 ILCS 5/15-1602 (West 1992).

On January 14, 1993, Citicorp set a sheriff's sale for March 10, 1993. Notice of Judicial Sale was sent to the Fronteras.

On February 11, 1993, the Fronteras' attorney contacted Citicorp and requested information regarding the foreclosed mortgage. On February 17, 1993, Citicorp, through counsel, forwarded to the Fronteras' attorney correspondence which included payoff" and "reinstatement" figures. Although the statutory reinstatement period had expired, the letter indicated that Citicorp would accept either a payoff or a reinstatement payment through March 15, 1993.

On February 23, 1993, the Fronteras' statutory right to redeem the property expired. 735 ILCS 5/15-1603 (West 1992).

On March 12, 1993, the Fronteras' attorney contacted Citicorp and indicated that he had the necessary checks to reinstate the mortgage. Citicorp informed him at this time that a judicial sale had already taken place and the property had been sold two days earlier. The Bilanzics had made the highest bid at the sale. Despite being informed that the property had been sold, the Fronteras' attorney forwarded the checks to Citicorp. Citicorp refused to accept the checks and returned them to the Fronteras.

Citicorp subsequently filed a motion to approve the sheriff's report of sale, as required by statute. (735 ILCS 5/15-1508 (West 1992).) On March 16, 1993, and at a hearing on the motion, the Fronteras filed an emergency motion to prevent the confirmation. Along with their motion, the Fronteras' attorney included an affidavit which stated that an employee of Citicorp's attorney had represented to him that the judicial sale set for March 10 would be changed to March 16. The hearing was held over until April 22, 1993.

On April 22, 1993, the court held a hearing on motions filed by Citicorp and the Fronteras. In its response to the Fronteras' emergency motion, Citicorp argued that it was only required to accept a reinstatement payment up until October 25, 1992, the statutory reinstatement date, and that it had never agreed to continue the judicial sale of the property which had been properly scheduled for March 10, 1993. The court determined, however, that Citicorp had agreed in the letter to give the Fronteras until at least March 15 to reinstate their loan.

Although the Bilanzics had not filed an appearance with the court or taken part in the confirmation hearing, Peter Bilanzic was in the courtroom on April 22, 1993. He asked the court if the money tendered on his behalf to the sheriff could be ordered returned to him. The court vacated the sale and ordered the Bilanzics' money be returned, noting that the sale had been done "by mistake." The court did not make findings pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)).

On April 28, 1993, the Bilanzics filed a Motion for Leave to Intervene in the case. On April 30, 1993, the Fronteras filed an objection to the motion. At a hearing on the motion the court denied the Bilanzics' ...


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