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December 12, 1996


Appeal from the Circuit Court of Du Page County. No. 91--CH--0538. Honorable Rodney W. Equi, Judge, Presiding.

Released for Publication January 14, 1997.

The Honorable Justice Geiger delivered the opinion of the court: Bowman and Rathje, JJ., concur.

The opinion of the court was delivered by: Geiger

JUSTICE GEIGER delivered the opinion of the court:

The intervenor, Costas Kappos, was the purchaser at a sale held pursuant to a judgment foreclosing a second mortgage on residential real estate. The plaintiff, West Suburban Bank, was the mortgagee. This court vacated the judgment and the sale as void because the plaintiff failed to serve one of the mortgagors. We also ruled that Kappos was entitled to the $80,000 he paid for the property and remanded the cause for further proceedings. West Suburban Bank v. Lattemann, No. 2--94--0229 (1995) (unpublished order under Supreme Court Rule 23).

On remand, the plaintiff tendered Kappos the $80,000 and moved for a voluntary dismissal of its foreclosure complaint (see 735 ILCS 5/2--1009(a) (West 1994)). Kappos moved for interest on the $80,000 as part of the restitution to which he was entitled upon the vacatur of the foreclosure judgment and sale. The trial court granted the voluntary dismissal and held that Kappos' demand for interest was thereby moot. Kappos timely appealed.

Kappos argues that the trial court erred in refusing to award him interest on the $80,000 the plaintiff was required to refund. He argues that allowing the plaintiff to retain the interest it earned on money to which it never had a right would deny him full restitution, frustrating this court's decision and unjustly enriching the plaintiff.

We hold that the trial court erred in refusing to consider Kappos' motion for interest on the refunded purchase price. Because case law supports awarding interest in these circumstances, insofar as it is equitable to do so, we reverse the denial of the motion for interest and remand for a hearing thereon.

We briefly recount the relevant facts. On June 20, 1991, the plaintiff filed its complaint to foreclose a second mortgage on the property. On July 16, 1992, the trial court entered a judgment of foreclosure. On August 25, 1992, Kappos bought the property for $80,000 at the sheriff's sale; on September 2, 1992, the trial court approved the sheriff's report of the sale.

In May 1993, Kappos filed his "motion to vacate" the September 2, 1992, order, asserting that the foreclosure sale was invalid. He claimed that the plaintiff had perpetrated a fraud by getting a federal district court to shorten the redemption period for the first mortgage on the property. As a result, the redemption period expired before the foreclosure sale. With no equity of redemption, the second mortgage had no value. Thus, according to Kappos, he paid $80,000 for what the plaintiff knew (and he did not know) was a worthless interest in the property. The trial court dismissed his motion, and Kappos appealed.

Without reaching Kappos' fraud claim, this court held that the judgment of foreclosure was void because the plaintiff had failed to properly serve one of the defendant mortgagors. We vacated the July 16, 1992, order of foreclosure and the September 2, 1992, order confirming the sale to Kappos and remanded the cause to the trial court "for proceedings not inconsistent with this opinion." Lattemann, No. 2--94--0229, slip op. at 10. On June 13, 1995, we entered our mandate, which also stated that the two orders were vacated and that the cause was remanded for further proceedings not inconsistent with our order.

On remand, the following events ensued. On July 11, 1995, the plaintiff moved for the voluntary dismissal of the foreclosure suit. The trial court allowed Kappos to file objections to the motion and for the plaintiff to reply, and it continued the matter to August 30, 1995. On July 16, 1995, Kappos filed a motion for interest on the $80,000, which had been in the plaintiff's custody since the foreclosure sale. He argued it would be inequitable for the plaintiff to retain the benefit of money to which it had no right. He maintained that the restitution to which our order entitled him would not be complete unless it included both the $80,000 principal and the interest that accumulated while the plaintiff improperly held the money.

The trial court granted the plaintiff's motion for voluntary dismissal and did not award Kappos any interest. The trial court found that the voluntary dismissal of the case mooted Kappos' request for interest. The trial court denied Kappos' motion to reconsider, and Kappos appealed.

We should also note that Kappos filed another suit against the plaintiff, seeking damages for its allegedly fraudulent conduct. The trial court dismissed the action as barred by res judicata because of the foreclosure judgment, which was on appeal before this court at the time. However, this court reinstated the complaint, explaining that the pending appeal meant the foreclosure judgment was not final for res judicata purposes. Kappos v. West Suburban Bank, Slip op., No. 2--94--0822 (2d Dist. April 13, 1995). As of the filing of the notice of appeal in this case, Kappos' fraud suit was ...

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