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In re Estate of Bontkowski

January 30, 2003

ESTATE OF GENEVIEVE BONTKOWSKI, DISABLED PERSON, THADDEUS M. BOND, GUARDIAN-APPELLEE,
GUIDO M. CALCAGNO, JR., AS INDEPENDENT ADMINISTRATOR OF THE ESTATE OF GUIDO M. CALCAGNO, A/K/A GUIDO CALCAGNO, DECEASED, *FN1 PLAINTIFF-APPELLANT,
v.
EDWARD M. BONTKOWSKI; THE CHICAGO TRUST COMPANY AS TRUSTEE UNDER TRUST NUMBER 104118; THE CHICAGO TRUST COMPANY AS TRUSTEE UNDER TRUST DEED DATED AUGUST 10, 1997; ESTATE OF GENEVIEVE BONTKOWSKI; UNKNOWN OWNERS AND NON-RECORD CLAIMANTS, DEFENDANTS-APPELLEES. *FN2



Appeal from the Circuit Court of Cook County. Honorable Maureen E. Connors, Judge Presiding.

The opinion of the court was delivered by: Justice Hartman

This case involves a mortgage foreclosure action filed by plaintiff-appellant, Guido M. Calcagno, Jr., as Independent Administrator of the Estate of Guido M. Calcagno, a/k/a Guido Calcagno, deceased (Calcagno), and an action filed by the defendant-appellee, Estate of Genevieve Bontkowski, *fn3 a disabled person (Estate), to set aside two quit claim deeds, against which the mortgages sought to be foreclosed by Calcagno were recorded. Calcagno appeals the circuit court's findings that both deeds were void and, therefore, the mortgages sought to be foreclosed were of no effect against the Estate. On appeal Calcagno contends (1) the court erred in finding a deed involving property at 4970 North Mason Avenue (the Mason property) was forged and therefore void; (2) the finding that a fiduciary relationship existed between Edward Bontkowski (Edward), one of Genevieve's sons, and Genevieve Bontkowski (Genevieve) was erroneous; (3) the Estate failed to rebut the presumption that the quit claim deeds were signed by Genevieve on the date they bear; and (4) the Estate failed to rebut the presumption that Genevieve was of sound mind and of the requisite donative intent when she executed the deeds.

Prior to June 1, 1997, Genevieve owned a six-flat located at 2551 West Cortez (Cortez property) and the two-flat described as the Mason property, in one of the units of which she had resided since 1980. On June 1, 1997, she allegedly executed two quit claim deeds transferring title to the Cortez and Mason properties into land trusts held by the Chicago Trust Company. Her son Edward was the sole beneficiary of both land trusts. The Estate filed a petition for recovery of real estate seeking to set aside the quit claim deeds, asserting that Genevieve's signatures on those deeds were forged.

Calcagno made loans to Edward on August 10, 1997, in the amount of $84,000, on September 15, 1997, in the amount of $60,000, and on October 14, 1997, in the amount of $45,000. The mortgages/trust deeds securing the August 10 and October 14 loans were recorded against the Cortez property and the mortgage/trust deed securing the September 15 loan was recorded against the Mason property. Calcagno filed a mortgage foreclosure action which was consolidated with the Estate's action.

At trial, it was shown that Genevieve was an 85 year old Polish immigrant at the time of the 1997 quit claim deeds; had at most a sixth grade education; and had a limited knowledge of the English language. She had been hit by a car in October 1996. Two other of her sons, Richard Bontkowski (Richard) and Thaddeus Bond, Sr. (Bond), testified that following this car accident Genevieve suffered from memory loss, loss of equilibrium, and severe mood swings.

Richard testified that the signatures on the Mason deed did not look like his mother's. He asserted that Genevieve was not reasonably lucid in June and July 1997.

Bond testified that the signatures on both deeds were not his mother's. In May 1997 Genevieve was unable to sign her name. On June 1, 1997, he spent the day with Genevieve from 9 a.m. until 7 p.m. June 1, 1997, was a Sunday and he always spent Sundays with his mother.

Rosemarie Lewandowski testified that she was the notary public used to acknowledge Genevieve's signatures on the quit claim deeds, which she notarized at the request of Edward. She met Edward in a coffee shop on July 22, 1997, and placed her signature and notary seal on the deeds. She admitted that she never met Genevieve and had no idea what her signature looked like. The deeds were not signed in her presence.

Diane Marsh, the Estate's handwriting expert, testified that the signatures on the Mason property deed were not Genevieve's, but that the signatures on the Cortez property deed probably were hers. Calcagno's handwriting expert, James L. Hayes, testified that it was not possible that the signatures on the Cortez deed were forged. He further stated that the signatures on the Mason deed neither could be identified nor eliminated as those of Genevieve. Calcagno introduced a letter from Dr. George Demos, one of Genevieve's treating physicians, which stated that he had been seeing her since May 1997 and that prior to sometime in July 1997, Genevieve had been very lucid. Further, her mental status changed sometime in July 1997. "Since then she has had episodes of waxing and waning mental status changes with episodes of being very lucid and episodes of being confused."

Edward presented the testimony of three Hoyne Savings Bank employees, Iris Larson, George Hehn, and Ralph Carstensen. Their testimony established that in April, May, and June of 1997, Genevieve presented herself at the bank and conducted her financial transactions.

Calcagno proved up the mortgage foreclosure action through the testimony of Guido M. Calcagno, Jr. who established the damages under the three mortgages.

The circuit court entered judgment in favor of the Estate, finding: (1) the deed transferring the Mason property was forged and therefore void and (2) there was no evidence to support a finding that the Cortez deed was forged or that Genevieve was incompetent on June 1, 1997, but the deed was void because the transfer of the Cortez property was the result of Edward's breach of the fiduciary relationship between himself and Genevieve. The court further dismissed the amended complaint for foreclosure against the Estate finding that because the two deeds were void, the subsequent notes and mortgages were of no effect against the Estate. The court denied Calcagno's motion for reconsideration and vacature as to the Estate, but granted it as to Edward. The court entered judgment in favor of Calcagno and against Edward in the amount of $387,871.97. The court awarded Calcagno attorney's fees and costs against Edward in the amount of $50,003.35. Calcagno filed a notice of appeal. Although Edward also filed a notice of appeal, he has filed no briefs nor has he otherwise participated in this appeal.

I.

Calcagno contends that the circuit court erred in finding that the Mason property deed was forged because the forgery was not proved by ...


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