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Wagemann Oil Co. v. Marathon Oil Co.

June 30, 1999

WAGEMANN OIL COMPANY, PLAINTIFF-APPELLANT,
v.
MARATHON OIL COMPANY, DEFENDANT-APPELLEE (WILLIAM J. LUSSOW, JANE E. LUSSOW, UNITED STATES OF AMERICA, FIRST ARLINGTON NATIONAL BANK, STATE OF ILLINOIS, PALATINE EXPRESS CAR WASH, INC., DEER LAKE HOMEOWNERS ASSOCIATION, UNKNOWN OWNERS AND NON-RECORD CLAIMANTS, DEFENDANTS).



The opinion of the court was delivered by: Justice Greiman

Appeal from the Circuit Court of Cook County. The Honorable Ellis E. Reid, Judge Presiding.

the opinion of the court:

Plaintiff Wagemann Oil Company (Wagemann) appeals from an order denying its motion for summary judgment and granting summary judgment to defendant Marathon Oil Company (Marathon). Wagemann contends that the circuit court erred in determining that Marathon's judgment lien upon the real estate which was the res of an Illinois land trust was superior to Wagemann's security interest in the beneficial interest of that trust. We affirm.

This case involves the priority of the parties' rights to the proceeds from the sale of certain real property commonly known as 124 South Ela Road in Barrington, Illinois. Upon filing cross-motions for summary judgment, the parties agreed there were no material issues of fact. The relevant facts are as follows.

On June 1, 1973, an Illinois land trust, trust A-349, was established, vesting title to the real estate with First Arlington National Bank (First Arlington) as the trustee. The trust agreement provided that William J. Lussow and Jane E. Lussow owned the beneficial interest of trust A-349 and held the power of direction.

On October 18, 1973, the Lussows obtained a $60,000 loan from Central Federal Savings & Loan Association (Central Federal). The Lussows executed a note, and First Arlington, as trustee, executed the note and a mortgage encumbering the property.

In June 1977, William Lussow obtained a loan from First Arlington in the amount of $420,000 and executed a promissory note on June 3, 1977, for the amount of the loan made payable to First Arlington. The loan was secured by William Lussow's assignment of the beneficial interest in trust A-349 as well as other assets.

On June 23, 1977, the Lussows executed a junior assignment of their beneficial interest in trust A-349, including the power of direction, to Wagemann and a collateral pledge to Wagemann and others as security for debts due and to be due. Wagemann asserts this assignment was given in consideration for the agreement by Wagemann's owner, Peter Spina, to co- sign the note given to First Arlington for the $420,000 loan. Both documents stated that the assignment was junior to the assignment made on June 3, 1977, to First Arlington.

On June 23, 1977, William Lussow and Wagemann's attorney provided Robert Mills, the president of First Arlington, with the junior assignment and collateral pledge. Wagemann contends it lodged the document with the trustee by tendering it to Mills. The assignment was not signed or acknowledged by the trustee.

On July 18, 1978, First Arlington as trustee of trust A-349 conveyed the real estate to a nominee at the direction of the Lussows, who immediately conveyed the real estate to First Arlington as trustee under a new trust agreement, trust A-843.

In 1979, William Lussow filed suit against Spina in the circuit court, seeking a determination of the status of accounts between them.

On March 21, 1980, First Arlington released its security interest in the beneficial interest, which partly secured the loan for $420,000.

In 1981, the suit filed by William Lussow against Spina was transferred to the United States Bankruptcy Court. On February 18, 1992, the bankruptcy court required William Lussow to account to Spina for damages arising out of their business relationship.

On September 11, 1992, the Lussows directed First Arlington as trustee of trust A-843 to convey the property by quitclaim deed to themselves as tenants by the entirety.

On November 4, 1993, Wagemann attached a legal description of the property to the junior collateral assignment which had been given in 1977 with reference to the original land trust. This instrument was recorded with the county recorder.

On December 14, 1993, Wagemann filed suit against the Lussows in the circuit court seeking to set aside the September 11, 1992, transfer of the property to the Lussows as tenants by the entirety and to impose a constructive trust upon the property in its favor.

On March 10, 1994, Marathon obtained a judgment in the circuit court for $200,000 against the Lussows and recorded that judgment ...


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