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02/07/97 FIRST AMERICAN TITLE INSURANCE COMPANY AND

February 7, 1997

FIRST AMERICAN TITLE INSURANCE COMPANY AND WINNEBAGO COUNTY TITLE COMPANY, PLAINTIFFS-APPELLEES,
v.
TCF BANK, F.A., F/K/A TCF SAVINGS BANK, F.S.B., DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Winnebago County. No. 93--MR--225. Honorable Gerald F. Grubb, Judge, Presiding.

Rehearing Denied March 10, 1997. Released for Publication March 10, 1997.

The Honorable Justice McLAREN delivered the opinion of the court. Rathje, J., concurs. Justice Hutchinson, specially concurring

The opinion of the court was delivered by: Mclaren

JUSTICE McLAREN delivered the opinion of the court:

The defendant, TCF Bank, appeals the trial court's order of April 27, 1995, denying the defendant's motion for summary judgment and granting partial summary judgment in favor of the plaintiffs, First American Title Insurance Company (First American) and Winnebago County Title Company (Winnebago). The plaintiffs appealed the court's denial of part of their summary judgment motion, and the defendant appealed the court's partial granting of the plaintiffs' summary judgment motion. In addition, the Illinois Land Title Association (Association) filed an amicus curiae brief. We affirm in part, reverse in part, and remand for further proceedings.

The following facts are taken from the pleadings and supporting documents and affidavits. On May 3, 1989, the defendant granted Patricia Bartholomew a 10-year, $40,000 revolving line of credit secured by a mortgage on Bartholomew's home located at 820 South 19th Street, Rockford, Illinois. A revolving line of credit is an arrangement between a lender and a debtor in which the lender may from time to time make loans or advances to the debtor. Ill. Rev. Stat. 1989, ch. 17, par. 6405. Further, "any mortgage *** given to secure a revolving credit loan may *** secure not only the existing indebtedness, but also such future advances *** made within [the next] twenty years." Ill. Rev. Stat. 1989, ch. 17, par. 312.3. On May 5, 1989, the defendant recorded the mortgage document with the Winnebago County recorder of deeds. The document states in part: "This mortgage secures a revolving line of credit under which advances, payments and readvances may be made from time to time."

On May 18, 1990, TCF Mortgage Corporation (TCF Mortgage) granted Bartholomew a traditional loan secured by Bartholomew's home; the same property used to secure the defendant's loan. This subsequent mortgage was recorded on May 23, 1990. Plaintiff Winnebago acted as closing agent and title insurer for this second loan for plaintiff First American. Plaintiff Winnebago guaranteed that TCF Mortgage was not subject to any "covenants, conditions or restriction" under which TCF Mortgage's lien would be subordinated. On May 18, 1990, the defendant sent plaintiff Winnebago a "payoff" letter stating the amount to be paid in full to satisfy the defendant's loan. The letter indicated the payoff amount was $35,785.78. The letter also stated: "this is a credit line; checks may be outstanding. Please call *** for an updated payoff figure before closing." On May 18, 1990, plaintiff Winnebago sent a check to the defendant for the sum requested in the payoff letter. On the face of the check appeared the words "For Mortgage Payoff." The defendant cashed the check on May 23, 1990. At that time, Bartholomew's credit line mortgage balance was reduced to zero. However, the defendant did not release its lien on Bartholomew's home. Subsequently, Bartholomew borrowed almost $40,000 on the defendant's line of credit. When Bartholomew defaulted, the defendant foreclosed its mortgage on her home. The plaintiffs brought this suit seeking release of the defendant's lien, damages, and the placement of TCF Mortgage's lien in first lien position. The plaintiffs filed a; motion for partial summary judgment, and the defendant filed a motion for summary judgment. The defendant and the plaintiffs both appeal. The cases have been consolidated.

The trial court granted partial summary judgment in the plaintiffs' favor ruling that (1) as a matter of law, the defendant was not required to release the lien; and (2) as a matter of equity, the defendant must either release the lien or return the funds forwarded by plaintiff Winnebago to pay off the mortgage. The trial court ordered the defendant either to pay back the payoff money or to release its lien. The parties and the Association essentially raise two issue on appeal: (1) whether the defendant was legally obligated to release its lien; and (2) whether the defendant was obligated, under principles of equity, either to release the lien or to return the payoff funds to plaintiff Winnebago.

Summary judgment is proper when the- pleadings, depositions, and affidavits demonstrate that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2--1005(c) (West 1994). In adjudicating a summary judgment motion, a court must construe the evidence strictly against the movant and liberally in favor of the nonmoving party. Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 113, 208 Ill. Dec. 662, 649 N.E.2d 1323 (1995); Guerino v. Depot Place Partnership, 273 Ill. App. 3d 27, 30, 209 Ill. Dec. 870, 652 N.E.2d 410 (1995). "Summary judgment is encouraged to aid the expeditious disposition of a lawsuit." Espinoza, 165 Ill. 2d at 113. However, it is a drastic means of resolving litigation and should be allowed only when the moving party's right to judgment is clear and free from doubt. Guerino, 273 Ill. App. 3d at 30. "Therefore, where reasonable persons could draw divergent inferences from the undisputed material facts or where there is a dispute as to a material fact, summary judgment should be denied and the issue decided by the trier of fact." Espinoza, 165 Ill. 2d at 114. We conduct a de novo review of an order granting or denying summary judgment. Espinoza, 165 Ill. 2d at 113.

After reviewing the applicable statutes, the pleadings, along with the supporting documents and affidavits, we determine that the defendant was not legally obligated to release its lien on Bartholomew's home. Contrary to the opinion of the special concurrence, we do not determine that Winnebago was prevented "from requesting a release of the Bartholomew lien." Slip op. at 12. The mortgage instrument provides in part:

" Termination of this Mortgage. If borrower pay [sic ] to Lender all of the amounts owed to Lender under this Mortgage and under the agreement, and keeps all promises made in this Mortgage and in the Agreement, then Lender's rights in the Property will end. Lender will send Borrower a document stating this and Borrower can file it with the County in which the Property is located."

Further, the agreement between Bartholomew and the defendant provides in part that the defendant "will not release the lien until [Bartholomew has] paid [the defendant] everything [she] owe[s] [the defendant] under this agreement and [has] cancelled this agreement." Thus, under the clear and unambiguous language of the mortgage and agreement, the defendant had no obligation to release its lien on Bartholomew's property until or unless Bartholomew cancelled the agreement.

Further, the applicable statute clearly indicates that the defendant was not obligated to release the lien without a request from Bartholomew. It is well established that in interpreting a statute we must give the language used by the legislature its plain and ordinary meaning. Boaden v. Department of Law Enforcement, 171 Ill. 2d 230, 237, 215 Ill. Dec. 664, 215 Ill. Dec. 679, 664 N.E.2d 61 (1996). Section 4.1 of the Interest Act mandates that the request for a release must come directly from the borrower. Ill. Rev. Stat. 1989, ch. 17, par. 6405. The Interest Act permits a lender to take an interest in real property to secure a revolving credit agreement "in excess of $5,000." Ill. Rev. Stat. 1989, ch. 17, par. 6405. The Interest Act also provides that "any request by a borrower to release a security interest under a revolving credit arrangement shall be granted by the lender provided the borrower renders payment of the total outstanding balance as required by this Section before the security interest of record may be released." Ill. Rev. Stat. 1989, ch. 17, par. 6405. We determine that the clear and unambiguous language of the statute explicitly limits who may make a proper request for a release of a lien to the borrower alone. Neither party has alleged that Bartholomew requested a release from the defendant. Thus, we determine that the trial court correctly ruled that, as a matter of law, the defendant was not obligated to release Bartholomew's lien after cashing plaintiff Winnebago's payoff check.

The plaintiffs argue that the last sentence of section 4.1 mandates a lender to release a mortgage lien upon "any request" and full payment of the account. However, when the phrase "any request" is read in context, it is clear that it refers to how the request may be made, not who may make it. The entire ...


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