Appeal from the Circuit Court of Cook County. No. 05 CH 00798 Honorable Peter Flynn, Judge Presiding.
The opinion of the court was delivered by: Justice Robert E. Gordon
Defendant NationsCredit Financial Services Corp. foreclosed on a mortgage on a residential property, and plaintiff Eighteen Investments, Inc., purchased the property at the judicial sale for $100,000. The circuit court of Cook County entered an order confirming the sale on March 14, 2002.
However, there were problems with title: the mortgage listed the wrong property index number (PIN) and the wrong lot number; the deed from the judicial sale also listed the wrong lot number; and a release for the mortgage had already been recorded. Plaintiff then filed a motion in the foreclosure action to vacate the judicial order confirming the sale on the ground that the mortgage had already been released. The trial court denied the motion.
On January 13, 2005, plaintiff then filed the complaint in this action alleging unjust enrichment, as well as claims for rescission and declaratory judgment. The trial court granted summary judgment for the defendant on the unjust enrichment claim and dismissed the remaining claims on the grounds of res judicata and collateral estoppel. For the reasons discussed below, the judgment of the trial court is affirmed.
Eighteen Investments is a Missouri corporation that purchases commercial and residential investment properties, including foreclosure properties. NationsCredit is a North Carolina corporation that was formerly a subsidiary of NationsBank Corporation and is now a subsidiary of Bank of America Corporation. NationsCredit issues real estate loans directly to applicants purchasing residential properties, and also purchases real estate loan pools from other lenders.
The subject property is located at 2644 West Adams Street, Chicago, Illinois. The correct PIN is 16-13-209-025, and the correct lot number is 36. The incorrect PIN listed on the subject mortgage was 16-13-20-025 (missing a "9"), and the incorrect lot number listed on both the subject mortgage and judicial sale deed was 16 (with a "1" instead of a "3").
On July 23, 1999, the Greater Midwest Real Estate Group sold the property to Eric Pollards in a deed that listed the wrong lot number, lot 16, instead of 36. On the same day, Pollards executed the subject mortgage for the benefit of the defendant which, as previously noted, listed both the wrong lot number and the wrong PIN. Defendant also purchased title insurance from First American Title Insurance Company.
On October 15, 1999, a release for this mortgage was recorded. In its brief to this court, defendant claimed that the trial court in the foreclosure action found this release to be a forgery and void. However, it is not clear from the record that the foreclosure court made such a finding. The foreclosure court's order dated May 1, 2003, denied plaintiff's motion to vacate "pursuant to the Court's ruling as read into the record this 1st day of May, 2003." The transcript of the proceedings was not made part of the appellate record, so we do not know what the foreclosure court "read into the record" on May 1. The parties must have been unclear as well, since plaintiff subsequently filed a motion to clarify by declaring the release "null and void." However, the appellate record does not contain such a declaration. At the summary judgment hearing in this action, the trial court stated that the "release is off the table" since the foreclosure court had declined to enforce the release; and in response, plaintiff's attorney disputed that the foreclosure court had made "a specific finding as to whether or not the release was valid." Thus, despite defendant's declaration in its appellate brief that the release was a forgery, that fact is not established by the record filed on appeal.*fn1
On October 15, 1999, the same day that the release was recorded, Pollards executed a mortgage for the benefit of Funding Network, Inc. On March 20, 1999, Pollards conveyed the subject property to Percy Doss, and Doss executed a mortgage for the benefit of Creve Coeur Mortgage Associates. On July 7, 2000, Creve Coeur assigned the Doss mortgage to First Union.
The deed to Doss, the Doss mortgage and the assignment to First Union all listed the wrong lot number, lot 16. However, on January 9, 2001, Creve Coeur re-recorded its mortgage with the incorrect lot number crossed out and the correct lot number inserted in its place. On January 10, 2001, Creve Coeur did the same for the assignment to First Union.
On March 19, 2001, Betty Hinton purchased the subject property at a judicial sale, after First Union foreclosed on the Doss mortgage. On August 9, 2001, Hinton conveyed the property to her grandson, Kenyatta Land. The deed to Hinton used both the correct lot number and the correct PIN.
On June 13, 2001, defendant filed a complaint to foreclose the subject mortgage. The mortgage foreclosure action included as parties Doss and First Union, but not Betty Hinton or Kenyatta Land. On February 8, 2002, plaintiff purchased the subject property at a judicial sale for $100,000. On March 14, 2002, the foreclosure court entered an order confirming the sale. Both the deed from the judicial sale and the order confirming the sale listed the wrong lot number.
On April 15, 2002, plaintiff filed a motion in the foreclosure action to vacate the order approving the sale. In the motion, plaintiff claimed that after the order was entered confirming the sale, a visit to the subject property disclosed that Land was living there and claimed to be the owner. After receiving this information, plaintiff reviewed the real property records and found the release of the subject mortgage. Plaintiff's motion claimed the order should be vacated on the grounds of the prior release and defendant's failure to name other parties who had an interest in the subject property; however, the motion made no mention of the incorrect lot number or PIN. After an evidentiary hearing, the motion was denied in an order dated May 1, 2003.
On January 13, 2005, plaintiff filed the complaint in this action seeking to recover the $100,000 it had paid to defendant. The complaint alleged four counts: count I, rescission based on mutual mistake; count II, unjust enrichment; count III, rescission based on fraud; and count IV, a declaratory judgment that plaintiff had a superior claim to title over any other party. The basis for these counts was the incorrect lot number and PIN. The named defendants included Land, Hinton, Pollards and First American Title Company. However, Land, Pollards ...