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12/29/95 MUSA TADROS v. WALTER KUZMAK

December 29, 1995

MUSA TADROS, PLAINTIFF-APPELLEE,
v.
WALTER KUZMAK, JOSEPH WALINCHUS, AND FIRST NATIONAL BANK OF EVERGREEN PARK, AS TRUSTEE UNDER TRUST NUMBER 5215 DATED 4/24/79, DEFENDANTS-APPELLANTS.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE LESTER FOREMAN, JUDGE PRESIDING.

Petition for Leave to Appeal Denied April 3, 1996.

Presiding Justice Hoffman delivered the opinion of the court: Theis and S. O'brien, JJ., concur.

The opinion of the court was delivered by: Hoffman

PRESIDING JUSTICE HOFFMAN delivered the opinion of the court:

On January 12, 1991, the plaintiff, Musa Tadros, as purchaser, and the defendants, Walter Kuzmak, Joseph Walinchus, and the First National Bank of Evergreen Park, as trustee under trust number 5215 dated April 24, 1979, as sellers, entered into articles of agreement (articles) for a trustee's deed to a parcel of commercial real estate commonly known as 13319 S. Brainard Avenue, Chicago (property). On October 12, 1992, the plaintiff filed the instant declaratory judgment action requesting, among other things, that the court ascertain the amount owed by the plaintiff under the articles and declare the defendants' notice of forfeiture invalid. After a bench trial, the court determined that the plaintiff was indebted to the defendants in the sum of $105,777.75. The court ordered the plaintiff to pay that sum to the defendants by a certain date, and ordered the defendants upon such payment to convey the property to the plaintiff. The defendants have appealed that judgment, and for the reasons which follow, we affirm.

The articles provided for a $160,000 purchase price, $60,000 of which was to be paid on or before February 1, 1991. The $100,000 balance, plus or minus specified prorations, was to be paid in equal monthly installments of $3,203.30 commencing on March 1, 1991, and including interest at the rate of 9.5% per annum. In the event the plaintiff failed to make any required payment within ten days of the due date, the articles provided that he was to pay to the defendants, "as a special late payment handling charge[,] an amount equal to twelve percent (12%) per month of the amount of the payment which [was] then delinquent." In addition to the monthly installments of principal and interest, the plaintiff was required to deposit with the defendants on a monthly basis 1/12 of 110% of the most recent ascertainable real estate tax bill for the property. These monthly tax deposits were to be used by the defendants for the payment of real estate taxes as they came due. Additionally, the plaintiff was required to carry specified insurance covering the property.

Within a month of the execution of the articles, controversies began to arise between the parties over the plaintiff's compliance with its terms. We will, however, set forth only those events which bear on our disposition of this appeal.

In the period from March 1991 through July 1991, the plaintiff paid all of the required installments of principal and interest, but only one monthly tax escrow payment. He made no payments in August 1991, and only a principal and interest payment in September 1991. On September 6, 1991, and November 15, 1991, the plaintiff sent letters to the defendants requesting a payoff figure, which he never received. From October 1991 through December 1991, the plaintiff failed to make any payments to the defendants.

On January 2, 1992, the defendants sent the plaintiff a notice of default for, amongst other reasons, his failure to pay required monthly installment payments of principal and interest and monthly tax deposits. In that same notice, the defendants stated that they would provide a payoff figure to the plaintiff's lender.

The plaintiff paid nothing to the defendants in the months of January, February, March and April 1992. On May 8, 1992, however, the plaintiff tendered, and the defendants accepted, a payment in the sum of $22,421. Subsequent to the May 8 payment, the plaintiff made no further payments under the articles until after the entry of the judgment in the instant action.

On August 7, 1992, the defendants sent the plaintiff a document entitled "Additional Notice of Default", containing the following statement:

"The seller hereby again declare (sic) the Purchaser MUSA TADROS is in Default and has been in Default under the terms of the Agreement, that the original Agreement is null and void."

On August 31, 1992, the defendants caused a declaration of forfeiture to be filed in the office of the recorder of deeds. On October 15, 1992, after some exchange of correspondence between the parties, the plaintiff filed the instant declaratory judgment action requesting, inter alia, that the court ascertain the total amount due the defendants under the articles, and enter a finding that the defendants' declaration of forfeiture was void.

Commencing on February 5, 1993, and continuing on various dates through August 18, 1993, the court conducted a trial of the issues presented by the instant action. After all proofs had closed, the defendants filed a second Declaration of Forfeiture in the recorder's office. Based upon that second declaration of forfeiture, the defendants filed a motion for summary judgment which the trial court struck as untimely.

On November 16, 1993, the trial court entered its judgment finding that after all credits, the plaintiff was indebted to the defendants in the sum of $105,777.75. The court ordered, inter alia, that the plaintiff pay that sum to the defendants on or before December 31, 1993, in exchange for which the defendants would convey title to the property to the plaintiff. Within the time provided in the trial court's judgment, the plaintiff tendered the specified sum, but the defendants rejected the tender. Thereafter, the defendants filed their post trial motion, which was denied on February 10, 1994.

On February 18, 1994, the defendants filed their notice of appeal and two motions before the trial court. One motion requested that the court stay its judgment pending appeal without requiring any bond to be posted. The second motion requested that the trial court set an appeal bond. The trial court denied the motion to stay without bond, set an appeal bond in the sum of $210,000, and granted a stay conditioned upon the filing and approval of a bond in that amount. On May 17, 1994, the defendants filed another motion requesting either a bond waiver or alternatively that bond be set at $25,000. On June 3, 1994, the court denied the defendants' motion and extended the time for the defendants to post their appeal bond to June 14, 1994.

The defendants never posted an appeal bond, and the parties seem to acknowledge that the trial court's judgment has been complied with. The plaintiff has paid $105,777.75 to the defendants, and the defendants have conveyed the property to the plaintiff.

The defendants have raised essentially five issues on appeal, namely, that the trial court 1) erred in holding that they failed to perfect their August 31, 1992, declaration of forfeiture; 2) erred in ruling that they failed to perfect their August 25, 1993, declaration of forfeiture; 3) improperly computed the amount owed by the plaintiff under the articles; 4) erred in requiring the defendants to post an appeal bond as a condition to staying its judgment pending appeal; and 5) abused its discretion in setting an appeal bond of $210,000.

We will first dispose of the defendants' appeal bond issues. There is little doubt that the court's judgment involved an interest in property. As the defendants ...


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