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Avenaim v. Lubecke

March 30, 2004


[6] Appeal from the Circuit Court of Cook County. Honorable James T. Ryan, Judge Presiding.

[7] The opinion of the court was delivered by: Justice Burke

[8]  Plaintiff Maurice Avenaim appeals from an order of the circuit court denying his motion for reconsideration following a bench trial in which the trial court concluded that a resulting trust existed in favor of defendant *fn1 Shea Lubecke with respect to certain real estate located at 603 South Hough Street, Barrington, Illinois, and that she was entitled to possession of the property. On appeal, Avenaim contends that the trial court erred in concluding that a resulting trust existed in favor of Lubecke, erred in not concluding that Lubecke's claim was barred by laches, and erred in apportioning the parties' interests in the property. For the reasons set forth below, we vacate the trial court's order and remand.


[10]   This appeal arose from a real estate transaction involving Avenaim and defendants with respect to the property located at 603 South Hough Street. The parties disputed the nature of the transaction. Avenaim maintained, in his complaint for possession filed September 20, 2002, pursuant to the Forcible Entry and Detainer Act (Act) (735 ILCS 5/6-109 (West 2000)), that the transaction was a lease between him and defendants with an option to purchase. Conversely, Lubecke maintained that Avenaim held the property in trust for her, a resulting trust, which she set forth as an affirmative defense in her answer to Avenaim's complaint.

[11]   At a bench trial held on January 21, 2003, Avenaim testified with respect to the circumstances leading to the transaction. Defendants entered into a real estate contract on July 8, 1987, with the owner of the property for a purchase price of $127,500. *fn2 According to Avenaim, because defendants ultimately were not able to purchase the property as provided for by the contract since they could not obtain a mortgage, they came to him. Avenaim saw the opportunity to purchase the property as an investment since he already had six to seven properties, some of which were rental properties. Avenaim testified that the parties agreed he would purchase the property and be responsible for all payments. In this regard, defendants assigned the July 8 real estate contract to Avenaim on August 5, 1987. Avenaim admitted that defendants paid $27,000 as a down payment and other costs attendant to the closing and he financed the balance, $101,000, through a trust mortgage and obtained a trust deed for the property. *fn3

[12]   Avenaim further testified that exhibit No. 8 was his attorney's October 20, 1987, letter to defendants confirming the transaction. This letter stated that Avenaim agreed to purchase the property and obtain a mortgage, but that defendants agreed to pay the down payment. The letter further provided that "Mr. Avenaim has agreed that you would lease the property with an option to purchase." Thomas signed the acknowledgment on this letter. According to Avenaim, he gave defendants a three-year option to purchase the property at the "fair trade value of the house." Avenaim also identified exhibit No. 11 (not part of the record), a document entitled "Real Estate Option Agreement" that his attorney had prepared. According to Avenaim, this document was for defendants' purpose to "have it in writing for themselves to secure their own interest that they could buy the property back from me at a given time and that the deposits which they put in would be part of the configuration at the end, that they would get it back as a credit." Avenaim also testified that he never received a signed copy of this document from defendants.

[13]   Avenaim further testified that the terms of the agreement were that if defendants failed to exercise the option within three years, they would lose it and forfeit the monies they had deposited. According to Avenaim, defendants originally made payments directly to him. However, during the pendency of defendants' divorce, Lubecke began making payments directly to Avenaim's bank account. Avenaim also stated that the amount of defendants' payments did not always equal the amount of his mortgage payment.

[14]   Avenaim then identified various letters he had written to Lubecke, including February 27, 1998, and June 22 and July 6, 2000. The February letter stated that Lubecke was in default for her February rent payment, and the letter was being forwarded to Avenaim's attorney to start eviction proceedings if the February and March payments were not made by March 10. Avenaim further stated in the letter that it was his intention to list the property for sale. The June letter stated that Avenaim received a notice that Lubecke's June rent check was returned for insufficient funds. Avenaim stated in the letter that a $50 late fee would be added to the "June rent payment," as well as a $10 fee for the bank charge to his account for her returned check. Avenaim further noted in the letter that Lubecke had a pattern of late payments or non-cashable payments frequently for the past 10 years. According to Avenaim, this showed a lack of responsibility on Lubecke's part and was the reason he was only able to give her a month-to-month rental accommodation. Lastly, the July letter stated that Avenaim had not received Lubecke's June or July rent payment and she risked being evicted. Avenaim testified that Lubecke never responded to these letters. Avenaim further testified that over the 14-year period defendants and/or Lubecke resided in the home, he had sent approximately 25 to 30 such letters. According to Avenaim, defendants and/or Lubecke never made any claim to having an ownership interest in the home until this lawsuit.

[15]   Avenaim further testified that on July 11, 2001, he refinanced the property in the amount of $275,000, at which time he paid off the approximate $83,000 balance on the original mortgage. *fn4 Avenaim also identified exhibit No. 20 (not part of the record) as his landlord's insurance policy.

[16]   On August 5, 2002, Avenaim sent a letter of eviction to Lubecke, terminating her month-to-month tenancy, effective September 5. Avenaim commenced this lawsuit on September 20.

[17]   On cross-examination, Avenaim admitted that the total amount defendants had paid with respect to the property prior to the closing on the property was $30,882.66. Avenaim further stated that he suggested the three-year limit on the option to purchase when the parties first discussed and entered into the transaction. According to Avenaim, after he sent the "Real Estate Option Agreement" to defendants, he followed up on it, and Thomas told him he had no money, no credit, and, therefore, would not be able to buy the house back. Avenaim further testified that defendants sometimes paid the insurance on the property, but did not do so all the time. In addition, Avenaim stated that defendants did not directly pay the real estate taxes, but did do so as part of their rental payments. Avenaim then rested.

[18]   Thereafter, Lubecke testified on her own behalf. She stated that she had resided at the Hough address since December 1987. She further stated that Thomas signed the October 20, 1987, letter on her behalf. According to Lubecke, in the parties' initial discussions, because Avenaim was concerned about capital gains, he agreed to purchase the property and then transfer it to defendants for the amount of the original purchase contract. However, Lubecke then responded to her attorney's next question as follows:

"Q: Had Mr. Avenaim and you and your husband agreed that you would have an option to purchase the property?

[20]   A: Yes."

[21]   Lubecke denied that either she or Thomas and Avenaim ever agreed to limit the number of years on the option contract. Lubecke also denied that Avenaim ...

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