IT HAS BEEN SEVERAL MONTHS SINCE OUR LAST ENTRY TO THE BLOG SITE.
A lot has happened in our personal lives during this time.
My wife has been diagnosed with cancer in her leg and hip. This has kept us busy in the Doctor and Hospital scheduling for tests and to find a surgeon that feels confident he can remove it. I think they have found a surgeon that can handle the delicate surgery in her legs and still leave the leg muscles in tact. We have been very fortunate and feel somewhat relieved by this disclosure.
The economy has gotten so bad in our location, we were forced to close our business of 26 years and the medical costs and other costs have eroded our savings. I guess this makes us about even with all the rest of the unemployed and under-employed.
One of the best things to happen to us is the winning of our 8 year long law suit with Chase Bank and their legal firms involved in the Illegal Foreclosure and Conversion (Theft) of over 1 million dollars of our personal property.
This has been a long long uphill fight. It has caused us to put 2 of our companies into bankruptcy and to lay off the 40 people that were on our payrolls.
We kept the employees on the payroll until their pay checks were greater than any income we had invoiced for the month. At that time, we knew we could not afford to keep them employed. This hurt us as much as anything, our employees were part of the family. They had been with us as we built the companies and we suffered together as we grew. We also shared the fun times. Each year, we would take our employees and their families on a vacation. In 1987, we went to Hawaii for 2 weeks, 1988, we went to Las Vegas for a week, 1989, we took a cruise to the Bahamas for a week. The company paid for the vacation costs for all. In all of the years, we have taken 5 seperate cruises, fished the big lakes, gone camping in the national parks, visited the Indian reservations in Oklahoma, spent 6 weeks in Florida fishing on charter boats in Clear Water or St. Augustine and all enjoyed this time away from work.
We will surely miss the fellowship and the closeness we had as employers. The time we spent watching the families grow and the children mature into young adults. We are sorry to see it leave.
As I started to advise you above, The court of Appeals in Illinois 3rd District has over turned the decision of the lower court and has stated in a majority opinion that Chase bank did file false and mis leading papers in the Foreclosure of the proprty they did not hold the mortgage on. They agreed that Chase violated the 14th Constitutional Amendment by not serving notice of the suit and lying to the court in the Attorneys statement under oath that he could not find us for service. They agreed that we did infact show that Chase Bank and Devonshire Realty converted for their own use all of the items we have shown in the pictures above and a lot of items that were not shown. This included all of our business files, computers, data bases and sales information. We had paid over $500,000.00 to put the information into the data base and needed it to continue this business. I am hopeful that the courts will make it a part of the order for Chase Bank to re-build my home in a location of my choice as they have re-sold the property they did not own.
I have attached the Judges opinion for your viewing and also a copy of our complaint for the Appeal for your reading pleasure.
We thank you for following our blog and the we thank you for all of the well wishes bestowed upon usand the personal input from some of the readers. For the readers and people with comparable problems,
we can only hope that this opinion in Illinois will help expedite their claims and solutions. As we either go forward with an offer from Chase to settle this or we get our day in front of the Jury and get the 100 million in Punative damages awarded for the loss of our home, furniture, items that can not be replaced and the ten years it took to get here, we will keep you the public informed. If we can be of help to any person that is in the same situation, needs an Attorney that has been there and not afraid of Chase or others, we are more than willing to help.
JUDGE'S OPINION
No. 3-09-0735
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D. ,
MANITO MACHINERY, INC., RALPH)
MAY and DEBORAH MAY, ))
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)))
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)
)
)
)
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Plaintiffs-Appellants,
v.
BANK ONE, N.A., predecessor
to J.P. MORGAN CHASE CO., by
Merger; CODILIS & ASSOCIATES,
P.C., and THOMAS JAMES
DONAHUE,
Defendants-Appellees.
2010
Appeal from the Circuit Court
of the Tenth Judicial Circuit
Peoria County, Illinois
No. 05-L-104
Honorable
Joe Vespa
Judge Presiding.
ORDER
complaint,
Plaintiffs, Manito Machinery, Inc. and Deborah May, filed a
alleging that defendants, Bank One, Codilis &
Associates, P.C., and Thomas James Donahue, converted their
personal property following the foreclosure of Deborah's home.
Defendants filed motions to dismiss, which the trial court granted.
We reverse and remand.
In June 1999, Deborah May entered into a mortgage on a home
located at 24101 N. Tonya Court in Manito. In December 1999,
Deborah stopped making mortgage payments and moved out of the home.
On April 18, 2000, Bank One filed a complaint for foreclosure
against Deborah for her Manito horne. A summons was issued and
returned·by the Mason County Sheriff on April 20, 2000, indicating
that Deborah could not be found in the county. The Sheriff's
return stated, "Now living in Milford, II." On May 8, 2000, Thomas
Donahue of Codilis & Associates, P.C., Bank One's attorneys, filed
an affidavit seeking service by pUblication. The affidavit
asserted that "diligent inquiry has been made as to the
whereabouts" of Deborah but that she could not be found. On June
8, 2000, two vehicles belonging to Ralph and Deborah were
repossessed at their Milford home. Both of the vehicles were
secured with loans from Bank One.
Deborah never answered the foreclosure complaint or appeared
in court on the foreclosure action. On June 23, 2000, Bank One
filed amotion for entry of an order of default. On July 12,2000,
the trial court entered a judgment of foreclosure and sale against
Deborah. On January 3, 2001, the trial court entered an order
confirming sale and an order of possession to be effective in 30
days. On February 3, 2001, Bank One took possession of Deborah's
Manito home. On November IS, 2001, Bank One sold the property to
a third party.
In March 2005, Deborah, her husband, Ralph, and their
business, Manito Machinery, Inc., filed a complaint against
defendants. In April 2005, Deborah filed two petitions for
bankruptcy. In her petitions, she denied being a party to any
litigation or filing any claims in the past' year. By March 2006,
I
both of Deborah's bankruptcy cases had been dismissed.
In January 2007, defendants filed motions to dismiss
plaintiffs' complaint. In June 2008, the trial court granted
2
defendants' motions and dismissed the complaint without prejudice,
allowing plaintiffs to replead.
In August 2008, Deborah and Manito Machinery, Inc. filed an
amended complaint, alleging abuse of process and conversion against
defendants. The amended complaint alleged that defendants
unlawfully destroyed personal property, including computers
belonging to Manito Machinery, that was in Deborah's Manito horne
when Bank One took possession of it. The complaint further alleged
that Ralph, on behalf of Deborah and Manito Machinery, demanded
that defendants return the computers and other personal property in
April and October of 2001. Defendant Codilis' representative told
Ralph that he would have to hire an attorney and file a complaint
to obtain the property.
Defendants filed motions to dismiss plaintiffs' amended
complaint pursuant to section 2-615 and 2-619 of the Code of Civil
Procedure (Code) (735 ILCS 5/2-615 and 619 (West 2008)). The trial
court granted defendants' motions and dismissed plaintiffs' amended
complaint with prejudice. Deborah and Manito Machinery appeal the
dismissal of their conversion claims.
ANALYSIS
Dismissal on the pleadings pursuarit to section 2-615 of the.
Code is proper when a complaint does not contain allegations of
fact sufficient to state a cause of action. Becker v. Cold, 249
Ill. App. 3d 857, 860-61, 619 N.E.2d 765, 768 (1993). A section 2-
619 motion to dismiss should be granted when affirmative matter
defeats the claim or operates to bar its legal effect. Stinnes
3
Corp. v. Kerr-McGee Coal Corp. , 309 Ill. App. 3d 707, 712, 722
N.E.2d 1167, 1171 (2000). When ruling on a motion to dismiss
pursuant to section 2-615 or 2-619, the trial court must interpret
all pleadings and supporting documents in the light most favorable
to the nonmoving party. Stinnes Corp., 309 Ill. App. 3d at 712,
722 N.E.2d at 1171.
We review de novo a trial court I s ruling on a motion to
dismiss. Stinnes Corp., 309 Ill. App. 3d at 712, 722 N.E. 2d at
1171.
I. DISMISSALONTHEPLEADINGS
Plaintiffs argue that the trial court erred in dismissing
their claims because they pleaded all of the elements necessary for
conversion. Defendants respond that the trial court properly
dismissed plaintiffs' conversion claims because plaintiffs
abandoned their property.
A trial court should dismiss a cause of action on the
pleadings only if it is clearly apparent that no set of facts can
be proven which will entitle the plaintiff to recovery. Wright v.
City of Danville, 174 Ill. 2d 391, 398, 675 N.E.2d 110, 115 (1996).
Conversion is an unauthorized assumption of the right to
possession or ownership of personal property. Fortech, L.L.C. v.
R.W. DunltemanCo., Inc., 366 Ill. App. 3d 804,809,852 N.E.2d 451,
456 (2006). A complaint for conversion must allege: (1) an
unauthorized and wronqfu l assumption of control, dominion, or
ownership by a defendant over a plaintiff's personalty; (2)
plaintiff's right to the property; (3) plaintiff's right to
4
immediate possession of the property, absolutely and
unconditionally; and (4) demand for possession of the property.
Voutiritsas v. Intercounty Title Co. of Illinois, 279 Ill. App. 3d
170, 186, 664 N.E.2d 170, 181 (1996).
Abandonment is a complete defense to an action for conversion.
18 Am Jur. 2d Conversion §102 (2010); Schmidt v. Stearman, 98 Ark.
App. 167, 175, 253 S.W.3d 35, 42 (2007); Weicht v. Suburban
Newspapers of Greater St. Louis, Inc. , 32 S.W. 3d 592, 597 (Mo.
App. 2000); Johnson v. Northpointe Apartments, 744 So. 2d 899, 905
(Ala. 1999); Rinden v. Hicks, 119 N.H. 811, 813, 408 A.2d 417, 419
(1979). "There is no conversion when a plaintiff has abandoned, or
apparently abandoned, his property before a defendant takes
possession of it." Boston Educational Research Co., Inc. v.
American Machine & Foundry Co., 355 F.Supp. 1272, 1277 (D. Mass.
1973), aff'd, 488 F.2d 344 (1st Cir. 1973) .
.Property is considered abandoned when the owner, intending to
relinquish all rights to the property, leaves it free to be
appropriated by another person. Bell Leasing Brokerage, LLC v.
Roger Auto Service, Inc., 372 Ill. App. 3d 461, 467, 865 N.E.2d
558, 564 (2007). As a general rule, abandonment is not presumed,
and the party seeking to declare an abandonment must prove the
abandoning party intended to do so. Michael. v. First Chicago
Corp., 139 Ill. App. 3d 374, 382, 487 N.E.2d 403, 409 (1986). The
determination of whether a party's acts and conduct amount to
abandonment is generally a factual determination to be made by the
trier of fact. See Bell Leasing Brokerage, LLC, 372 Ill. App. 3d
5
at 467, 865 N.E.2d at 564.
Here, plaintiffs alleged in their amended complaint that (1)
defendants wrongfully assumed possession and control over
computers and other tangible personal property belonging to
plaintiffs; (2) plaintiffs, as the owners of the personal property,
had rights to it; (3) plaintiffs had the right to immediate
possession of the personal property, absolutely and
unconditionally; and (4) Ralph, on behalf of plaintiffs, demanded
that defendants return the property, but defendants refused. Thus,
plaintiffs have alleged all of the elements necessary to establish
a conversion.
Nevertheless, defendants contend that the trial court properly
dismissed plaintiffs' complaint because plaintiffs abandoned their
personal property by failing to obtain it prior to the foreclosure.
They rely on the general rule that anew owner who takes possession
of real property is not liable for conversion of personal property
found on the real estate if the former occupant fails to retrieve
it for a significant period of time. See Boston Educational
Research Co., Inc., 355 F.Supp. 1272 (5 months); Rodgers v. Crum,
168 Kan. 668, 215 P.2d 190 (1950) (13 months); Row v. Home Savings
Bank, 306 Mass. 522, 29 N.E.2d 552 (1940) (more than 12 months) .
We find that the general rule does not apply in this case, where
plaintiffs alleged that defendants did not properly notify them of
the impending foreclosure action.
Defendants had a duty to make an honest attempt to see that
Deborah had notice of the foreclosure proceedings involving her
6
property. See Romain v. Lambros, 7 Ill. 2d 206, 212, 129 N.E.2d
739, 742 (1955). Diligent inquiry requires "an honest and welldirected
effort to ascertain the whereabouts of a defendant by
inquiry as full as circumstances permit." Bank of New York v.
Unknown Heirs and Legatees, 369 Ill. App. 3d 472, 476, 860 N.E.2d
1113, 1117 (2006); see also First Federal Savings & Loan Ass'n of
Chicago v. Brown, 74 Ill. App. 3d 901, 907, 393 N.E.2d 574, 578
.(1979) (checking employment records· and court records may be
necessary for diligent inquiry) .
Here, plaintiffs' complaint alleged that defendants did not
conduct a diligent inquiry to determine her Milford address before
instituting its foreclosure action against her. Plaintiffs alleged
that defendants should have known Deborah's whereabouts based on
the returned summons indicating that she was living in Milford and
because two vehicles secured by loans from defendant Bank One were
repossessed at her Milford home. Plaintiffs' complaint alleged
that Deborah did not have actual knowledge of the foreclosure
action because defendants failed even to explore the sheriff's
notation of her Milford residency or Bank One's own corporate
records. Plaintiffs argue that if Deborah had been properly
notified of the foreclosure action, she would have known that Bank
One was seeking an order for possession of her property and would
have been able to retrieve her belongings before the court granted
Bank One an order of possession.
We find that plaintiffs' allegations of defendants' failure to
properly notify Deborah of the foreclosure action creates a
7
question of fact as to whether the elements of abandonment were
proved. Thus, the trial court erred in dismissing plaintiffs'
conversion claims on the pleadings.
II. DISMISSALASA MATTEROFLAW
Defendants argue that even if plaintiffs stated a cause of
action for conversion, their complaint should be dismissed because
it is barred by (1) judicial estoppel, (2) res judicata, and/or (3)
laches.
A. Judicial Estoppel
Defendants contend that plaintiffs are barred by judicial
estoppel because Deborah failed to disclose her conversion claims
against defendants in her bankruptcy petitions. They argue that
even though her bankruptcy petitions were dismissed, Deborah
benefitted from the bankruptcy proceedings because they temporarily
prevented creditors from pursuing claims against her.
Judicial estoppel prevents a party from asserting inconsistent
posi tions before courts in separate proceedings in the hope of
receiving favorable judgments in each proceeding. Dailey v. Smith,
292 Ill. App. 3d 22, 27, 684 N.E.2d 991, 1004 (1997). For judicial
estoppel to apply, the following elements must be established: (1)
the party estopped must have taken two positions; (2) that are
factually inconsistent; (3) in separate judicial or quasi-judicial
administrative proceedings; (4) intending the trier of fact to
accept the truth of the facts alleged; and (5) have succeeded in
the first proceeding and received a benefit thereby. Giannini v.
KumhoTire U.S.A., Inc., 385 Ill. App. 3d 1013, 1018-19, 898 N.E.2d
8
1095, 1100-01 (2008).
A debtor may be barred by judicial estoppel from pursuing a
claim that she failed to disclose in her bankruptcy petition. See
Dailey, 292 Ill. App. 3d at 28-29, 684 N.E.2d at 995-96. However,
judicial estoppel does not apply when the bankruptcy proceeding
ended in dismissal of the bankruptcy petition. See IBF
Participating Income Fund v. Dillard-Winecoff, LLC, 275 Ga. 765,
766, 573 S.E.2d 58, 60 (2002); Hampton Tree Farms, Inc. v. Jewett,
320 Or. 599, 611-12, 892 P.2d 683, 691 (1995). The Georgia
Supreme Court explained:
11 [N]o benefit and unfair advantage results from a
dismissal since its effect is to return the debtor and
creditors to the status quo ante, with the debtor again
liable for its debts and creditors free to use all legal
remedies available to collect thereon. 11 IBF
Participating Income Fund, 275 Ga. at 766, 573 S.E.2d at
60.
Here, Deborah's· bankruptcy petitions were dismissed. We
rej ect defendants' contention that judicial estoppel, nevertheless,
applies because Deborah benefitted from the bankruptcy proceedings.
Judicial estoppel requires not only a benefit from an earlier
proceeding but success in the first proceeding. See Giannini, 385
Ill. App. 3d at 1018-19, 898 N.E.2d at 1100-01. A dismissal is not
a successful result. Thus, judicial estoppel does not apply. See
IBF Participating Income Fund, 275 Ga. at 766, 573 S.E.2d at 60;
Hampton Tree Farms, Inc., .320 Or. 599, 892 P.2d 683.
9
B. Res Judicata
Defendants argue that plaintiffs' conversion claims are barred
by res judicata because plaintiffs did not raise them in the
foreclosure action.
For the doctrine· of res judicata to apply, the following
elements must exist: (1) a court of competertt jurisdiction renders
a judgment on the merits; (2) an identity exists between the causes
of action; and (3) there exists an identity of parties or their
privies. Lenny Szarek, Inc. v. Workers' Compensation Commission,
396 Ill. App. 3d 597, 603, 919 N.E.2d 43, 49 (2009). A subsequent
suit is not barred by res judicata where the facts alleged in the
second action arose after the termination of the prior litigation
and the issue in the second litigation differs from the first.
Chicago Title and Trust Co. v. County of Cook, 120 Ill. App. 3d
443, 454, 457 N.E.2d 1326, 1333 (1983).
The Supreme Court of Wyoming has held that res judicata does
not prevent a mortgagor from bringing a conversion claim against
his lender following a foreclosure. See Cockreham v.· Wyoming
Production Credit Ass'n, 743 P.2d 869, 872 (1987). The court found
that res judicata did not apply because the foreclosure was entered
before the events giving rise to the conversion claim occurred.
Cockreham, 743 P. 2d at 872. Since the cause of action in
conversion arose subsequent to the foreclosure judgment, it was not
barred by res judicata. Cockreham, 743 P.2d at 872.
We agree with the Wyoming Supreme Court's decision in
Cockreham. In this case, the events giving rise to defendants'
10
alleged conversion did not occur until after the foreclosure
judgment was entered. Plaintiffs' conversion claims are not barred
by res judicata.
C. Laches
.Finally, defendants Codilis and Donahue argue that plaintiffs'
conversion claims are barred by laches because plaintiffs did not
file their complaint until several years after the alleged
conversion took place. In their motion to dismiss, they argue that
••[h]ad plaintiffs filed suit earlier, it is very likely that
Codilis or Bank One would have been able to retrieve or preserve
the items plaintiffs claim were wrongfully taken."
Laches is an equitable doctrine that precludes the assertion
of a claim by a litigant whose unreasonable delay in raising the
claim has prejudiced the opposing party. In reMarriage of Smith,
347 Ill. App. 3d 395, 401, 806 N.E.2d 727, 732 (2004). The party
citing laches as a de f errae. to a claim must plead and prove two
elements: (1) lack of diligence by the party asserting the claim
and (2) injury or prejudice to the opposing party resulting from
the delay. Patrick Media Group, Inc. v. City of Chicago, 255 Ill.
App. 3d 1, 7, 626 N.E.2d 1066, 1071 (1993). A defendant must
allege prejudice or hardship rather than mere passage of time and
must demonstrate that the delay induced him to adversely change his
position. Cannella v. Village of Bridgeview, 284 Ill. App. 3d
1065, 1071, 673 N~E.2d 394, 398 (1996). Speculation that a party
might have proceeded differently is insufficient to establish harm
as a result of an opposing party's delay. Cannella, 284 Ill. App.
11
3d at 1072, 673 N.E.2d at 399.
The statute of limitations for a conversion action 1S five
years. 735 ILCS 5/13-2005 (West 2008). When a claim is not barred
by a limitations period, laches will not apply unless special
circumstances make it inequitable to grant the relief requested.
Smith, 347 Ill. App. 3d at 401, 806 N.E.2d at 732. The defendant
bears the burden of establishing that special circumstances justify
the application of laches. See Smith, 347 Ill. App. 3d at 403, 806
N.E.2d at 733.
Here, plaintiffs brought their action within the applicable
five year statute of limitations for conversion. Defendants have
failed to allege special circumstances that would defeat
plaintiffs' conversion claim. According to plaintiffs' complaint,
plaintiffs' representative asked defendants to return plaintiffs'
personal property approximately three months after defendants took
possession of it. Approximately three-and-a-half years later,
plaintiffs filed suit. Plaintiffs' actions do not demonstrate a
lack of diligence that justifies the application of laches.
Furthermore, defendants have failed to allege facts
establishing that they were prejudiced or injured by the
plaintiff's delay in filing their conversion action. Rather, they
speculate that if plaintiffs' complaint had been filed sooner, they
may have been able to retrieve or preserve plaintiffs' property.
Absent specific facts regarding how and when plaintiffs ' delay
caused defendants to adversely change their position, defendants'
laches defense fails. See Cannella, 284 Ill. App. 3d at 1071, 673
12
N.E.2d at 398.
CONCLUSION
The order of the circuit court of Peoria County is reversed
and the cause is remanded for further proceedings consistent with
this order.
Reversed and remanded.
LYTTON, J., with CARTER concurring.
O'BRIEN, J., concurs in part and dissents in part.
13
No. 3-09-0735
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APPEAL FILED IN THIS CASE
IN THE APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
AD., 2010
MANITO MACHINERY, INC,RALPH
MAY and DEBORAH MAY,
Plaintiffs-Appellants,
v.
BANK ONE, N.A, predecessor
to J.P. MORGAN CHASE CO., by
Merger; CODILIS & ASSOCIATES,
P.C, and THOMAS JAMES DONAHUE,
Defendants- Appellees.
))
)))
)))))))
)
Appeal from the Circuit Court
of the Tenth Judicial Circuit
Peoria County, Illinois
No.05-L-104
Honorable Joe Vespa
Judge, Presiding
JUSTICE O'BRIEN, concurs in part and dissents in part:
While I agree with most of the majority decision, I do not agree with the decision to reverse
the trial courts decision on the issue of conversion because I do not believe the plaintiffs can prevail
on their conversion claim without establishing that the order of foreclosure Bank One obtained was
predicated upon "the false representation in the complaint for foreclosure that Bank One held a
mortgage to the real estate located at [foreclosure address] and the false Affidavit to Allow Service
By Publication filed by [defendant] which the authorized agents of Bank One, N.A * * * knew to be
false." Because the plaintiffs have chosen not to appeal the validity of service and the validity of the
order of possession, the plaintiffs cannot prove the first element we have noted as necessary in an
I .
actionfor conversion, the unauthorized and wrongful assumption of control, dominion, or ownership
by a defendant over plaintiff's personality.
I base my reasoning, in part, on discussions such as the one in Dargis v. Paradise Park, Inc.,
354 Ill. App. 3d 171, 182,819 N.E.2d 1220,1231 (2004), wherein, the court noted that several
jurisdictions have held that a landlord assumes no duty to care for the property that a former tenant
has left behind when the landlord exercises control over the premises after the tenancy has been
terminated by lawful eviction. Similarly, in Fortech, L.L.c. v. R. W Dunteman Co., Inc., 366 III. App.
3d 804, 814, 852 N.E.2d 451,460 (2006), in discussing a claim for conversion, the court found
significant the fact that the trial court had expressly stayed enforcement of a judgment for possession.
The Fortech court found distinguishable the "reasonableconduct of the mortgage lender in Row v.
Home Savings Bank, 306 Mass. 522, 29 N.E.2d 552 (1940), a case in which the court rejected the
plaintiff's conversion claim where, although leaving her belongings in a rented room for over a year,
the plaintiff did not occupy the premises during that time and the mortgage lender, pursuant to a
foreclosure, took possession of the property in the month before the plaintiff brought her claim.
Fortech, 366, III. App. 3d at 816-17,852 N.E.2d at 461-62, discussing Row, 306 Mass. 522,29
N.E.2d 552.
I submit that similar reasoning applies under the circumstances in this case. Bank One took
possession of the real estate on February 3, 2001, approximately 13 months after Deborah moved out
of the home and stopped making mortgage payments. The Mays made no demand for personal
property until April of 200 1, 15 months after they had moved. They did not file suit until March of
2005 .. Although they brought their suit within the statute oflirnitations, the passage of time in this
2
case, under the circumstances, made it likely that the Mays' alleged personal property had already
been discarded, a not unreasonable action pursuant to a legitimate foreclosure.
I concur in all other aspects of the majority decision.
3
STATE OF ILLINOIS,
APPELLATE COURT, ss.
THIRD DISTRICT
As Clerk of the Appellate Court, in and for
said Third District of the State of Illinois, and keeper of the
Records and Seal thereof, I do hereby certify that the foregoing
is a true, full and complete copy of the opinion of the said
Appellate Court in the above-entitled cause, now of record in
this office.
In Testimony Whereof, I hereunto set my hand
and affix the seal of said Appellate Court at
Ottawa, this 20th day of August in the year of
our Lord two thousand ten.
Clerk of the Appellate Court
No. 111096
IN THE
SUPREME COURT OF ILLINOIS
MANITO MACHINERY, INC., )
RALPH MAY, and DEBORAH MAY, ) Petition for Leave to Appeal
) from the Appellate Court of
Plaintiffs-Respondents, ) Illinois, Third District,
) No. 3-09-0735
vs. )
)
BANK ONE N.A. predecessor to J.P. ) There Heard on Appeal from MORGAN CHASE CO., by Merger; ) the Circuit Court of the Tenth
CODILIS & ASSOCIATES, P.C., ) Judicial Circuit, Peoria
and THOMAS JAMES DONAHUE, ) County, Illinois, No. 05-L-
) 104, Honorable Joseph R.
Defendants-Petitioners. ) Vespa, Judge Presiding.
)
ANSWER TO PETITION FOR LEAVE TO APPEAL
RICHARD L. STEAGALL THOMAS V. HOEHNE
Nicoara & Steagall Hoehne, Holman, & Lonergan Commerce Building 124 N.E. Madison
416 Main Street, Suite 815 Peoria, IL 61602
Peoria, IL 61602 Tel: (309) 673-2414
Tel: (309) 674-6085 Fax: (309) 673-3946
Fax: (309) 674-6032
nicsteag@mtco.com
Attorneys for Plaintiffs-Respondents
1
STATEMENT OF ADDITIONAL FACTS
Petitioners omit the following material facts from their Statement of Facts.
Deborah May borrowed $216,000 from Pinnfund secured by a June 11, 1999 mortgage on her home real estate at 24101 Tonya Court, Manito, Illinois. (R. C125). Pinnfund assigned the mortgage – confirmed by a written assignment satisfying the Statute of Frauds – to BNC Mortgage, Inc., on September 7, 1999. (R. C132).1 740 ILCS 5/1 (2000). BNC Mortgage, Inc. assigned millions of dollars of notes and mortgages in a Master Agreement of July 13, 2000 to Bank One, N.A. (R. C134). The assignment consisted of a cover page with computer printouts of numerical references to the individual loans. (R. C134).
Bank One’s agents believed Deborah May’s note and mortgage was included in that assignment even though there was no written assignment of the mortgage to the real estate required by the Illinois version of the Statute of Frauds. (Amd/Cmp (“A/C”) ¶ 16, 22; 30; 864.)1 740 ILCS 5/1 (2000). Of course, Bank One no longer exists as a financial institution. Bank One was purchased by JP Morgan/Chase, itself the result of the
1 The Exhibits referenced are the Exhibits to the original Complaint used in the Amended Complaint. Exhibits to the Motion to Dismiss are referred to as MotEx:_.
2 The factual allegations are reprinted in the separate Counts. Plaintiffs will refer to the paragraphs in Count 1 unless otherwise stated.
2
combination of J.P. Morgan & Co. and the former Chase Manhattan Bank and earlier Manufacturer’s Hanover and Chemical Bank. (A/C Count 1 ¶5, C861).1
Bank One hired Codillis & Assoc., a Burr Ridge, Illinois law firm, to foreclose on the mortgage, take possession of the 24101 Tonya Court Manito, Illinois real estate, and sell it to satisfy the outstanding loan. (A/C Count 1 ¶ 18, C865). Neither Bank One nor Codilis verified that Bank One in fact owned the note and mortgage. (A/C Count 1 ¶ 30 A-B, 31-32; C870). The complaint for foreclosure filed with the Circuit Court of Mason County, Illinois falsely stated Bank One owned the mortgage. (A/C Count 1 ¶ 32, C870). Bank One did not own the mortgage or if it did, any claim that it had ownership of the mortgage was precluded by the Statute of Frauds, which required the written assignment of mortgage which BNC Mortgage had obtained from Pinnfund in the first assignment of
1 J.P. Morgan Chase & Company, The History of Our Firm. http://www.jpmorganchase.com/cm/cs?pagename=Chase/Href&urlname=jpmc/about/history
JP Morgan/Chase still exists, but only because the United States Government has paid it $25 billion to prevent an international bank run on its assets due to its portfolio of subprime mortgage securities. http://abcnews.go.com/Blotter/Story?id=7146474&page=1;
http://bizfinance.about.com/od/currentevents/a/Recession.htm “ JPMorgan Cuts Its Dividend by 87%” New York Times (February 24, 2009); (dividend cut due to losses in reflecting receipt of federal TARP funds from federal government).
http://query.nytimes.com/gst/fullpage.html?res=9805E1DC1630F937A15751C0A96F9C8B63&scp=11&sq=jp%20morgan%20chase%20toxic%20assets&st=cse
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Deborah May’s mortgage. 740 ILCS 5/1 (2000). (A/C Count 1 ¶ 30, C870); Pinfund/BNC Mortgage Assignment; (R. C132).
The Sheriff’s Not Found return of summons on Deborah May and her spouse, Ralph May, at the Manito address stated “Now living in Milford, Illinois”. Slip op at 1-2, 7(App:A:4 C170). The Codilis attorney, Thomas Donahue, filed an Affidavit of Service by Publication on May 8, 2000 falsely stating he had diligently searched for Deborah May and Ralph May and they could not be found. Slip op at 2, 7 (A/C Count 1 ¶ 33, C170; C172).
Bank One independent of Codilis repossessed two automobiles which were collateral for delinquent loans from Ralph May and Deborah May on June 7, 2000. (R. C223-224). The address at which they were repossessed the autos was Milford, Illinois. (R. C223-224).
Bank One and the Codilis lawyer obtained a July 12, 2000 Order of Foreclosure and Sale on the note and mortgage Bank One did not own at the outset of the foreclosure action on this false Affidavit of Publication. (A/C ¶ 33-34, R. C870: R. C172 Affidavit; R. C178 Order of Foreclosure and Sale). Bank One and Codilis awaited expiration of the mortgage redemption period. (A/C ¶36-37, R. C872).
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Deborah May had no knowledge of the foreclosure because she had not been personally served at Milford, Illinois. She had no opportunity to redeem her mortgage and avoid foreclosure. (A/C Count 1 ¶ 35, R. C871). Nor did Deborah May have any knowledge of the holder of the Pinnfund mortgage assigned to BNC Mortgage as the Bank One assignment was never formalized. (A.Ct.Pltf.Apdx, A: 3 A/C Count 1 ¶ 10-13 C862-C863 Ex:2-5; A/C Count 1 ¶ 22 C866).
Codilis and Donahue filed a Notice of Motion Confirming Judicial Sale and for Entry of an Order of Possession on December 18, 2000 with the Circuit Court of Mason County, Illinois. (R. C202). The Notice of this Motion was served by mail on Deborah May at the 24101 Tonya Court, Manito, Illinois address instead of Milford, Illinois where she in fact lived as stated in the Sheriff’s return of service. (R. C202; A.CtPltf.Appdx, A:4 C170).2
Deborah May did not receive notice of the impending judicial sale and possession of her real estate. (A/C count 1 ¶ 32-35, A.CtPltf.Appdx, A:4, R. C170). Codilis and Donahue obtained a default Order Confirming Sale and Order of Possession from the Circuit Court of Mason County on January 3, 2001. (R. C204). The Order granted
2 The paragraph contains a typographical error incorrectly referring to the year as “2001" when it was the year 2000.
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possession of the 24011 Tonya Court, Manito, Illinois real estate 30 days after the January 3, 2001 entry. (R. C204). Bank One and Codilis hired CB Devonshire Realty to take possession of the 24101Tonya Court, Manito, Illinois real estate and sell it. (A/C count 1 ¶ 38-39, R. C872).
A real estate mortgage provides title to the realty and – apart from fixtures – does not provide the lender with any ownership rights in the personal property located on the realty. Sword v. Lowe, 122 Ill. 487, 13 N.E. 826 (1887)(holding real estate mortgage provided no lien on a boiler and engine located on the land which were subject to a chattel mortgage). Deborah May had household goods and personal effects at the Manito property. (A/C count 1 ¶ 8 & 9, R. C862). Manito Machinery Enterprises, Inc. had its business computers containing 58,000 customer names located on the real estate. (A/C Count1 ¶ 8 & 9, R. C862).
Ralph May, an officer of Manito Machinery Enterprises, Inc. (“Manito Machinery”) and husband of Deborah May acting as the agent of the Manito Machinery corporation, and Deborah May made a demand for return of the personal property on Devonshire Realty, who Bank One and Codilis hired to sell the real estate. (A/C ¶ 40, R. C872). Devonshire Realty’s agent referred Ralph May to Codilis, Bank One’s attorneys. Id. Ralph May acting as agent for Deborah May and Manito Machinery telephoned
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Codillis on April 18, 2001, April 19, 2001, and again on October 30, 2001. (A/C count 1 ¶ 41, R. C873). Each time Ralph May talked with Kate McCay, an office employee of Codilis. Id. Ralph May asked Kate McCay for a time to obtain the personal property from the 24101 Tonya Court real estate. (A/C count 1 ¶ 41, R. C873). McCay acting in the scope of her agency for Codilis informed Ralph May in the three telephone conversations that the mortgage foreclosure was final and May would have to obtain an attorney to obtain the personal property. Id. Codilis, Donahue, the principal shareholders of Codilis & Assoc. P.C. and all of its lawyers knew that a mortgage to real estate does not place a lien on personal property that is not a fixture located on the real estate. (A/C ¶ 42 & 43, R. C873). They also knew the January 3, 2001 Order of Sale and Possession did not authorize Bank One, Codilis, and Devonshire Realty, Bank One’s agents, to take possession of personal property located on the mortgaged real estate and refuse to deliver that personal property to its owner. (A/C ¶ 42 & 43, R. C873).
ARGUMENT
I.
The Appellate Court Correctly Held the Duty of a Lender/Mortgagee to Give the
Owner of Foreclosed Premises the Opportunity to Obtain Their Personal Property Includes Notice to the Owner When the Judgment of Foreclosure Was Obtained on A False Affidavit of Publication Without Service of Process
The dispositive facts of the Third District decision, which Bank One omits from its Petition for Leave to Appeal are:
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1. Bank One sent notice of foreclosure and arranged for the Sheriff to serve the summons at the mortgaged Manito property where Deborah May and Ralph May no longer lived. A:4;C169-70.
2. The Sherriff’s Not Found return of Summons filed with the Circuit Court of Mason County confirmed this, stating “Now lives in Milford, IL”. Slip op 1-2, 7; A:4; C170.
3. Bank One knew of this independently of the foreclosure action. It repossessed two of the May’s vehicles in Milford, Illinois on June 7, 2000. Slip op at 2,7; C223-224 This was 29 days after Codilis filed the false Affidavit of Publication, 64 days before the July 12, 2000 Order of Foreclosure and Sale, and 6 months before the December 18, 2000 Notice of Motion Confirming Judicial Sale and for Entry of an Order of Possession.
4. Bank One obtained service by publication and made no attempt to personally serve the Mays in Milford. Slip op at 7;A:4; C169-70, 171.
When the defendant’s location is ascertainable, personal service is required both as a matter of federal constitutional law and under the Illinois service by publication statute. Mennonite Board of Missions v. Adams, 462 U.S. 791, 103 S.Ct. 2706
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(1983)(holding an Indiana tax sale based on publication notice to the lender/mortgagee was void for lack of the notice by mail or other means certain to ensure actual notice of the nature of the proceeding and the opportunity to present objections is provided to the person required by procedural due process of law guaranty of the Fourteenth Amendment); See Gates v. City of Chicago, __ F.3d __, 2010 WL 3733643, 11 (7th Cir. 2010)(publication void if knew or had reason to know of address to provide personal service); Campbell v. McCahan, 41 Ill. 45, 3 (1866)(decree entered by defective service is void); Bank of New York v. Unknown Heirs and Legatees, 369 Ill.App.3d 472, 476 (1st Dist. 2006)(failure to make diligent inquiry before publication makes service void).
Mindful of these bedrock principles of law, the Third District majority held Bank One – having failed to give the required actual notice of the foreclosure action – had a duty to give notice of its custody of the personal property on the foreclosed premises, which it did not own, to provide the owners an opportunity to retrieve their personal property from the foreclosed premises.3
3 JP Morgan Chase, successor of Bank One, has just recently suspended foreclosures nationwide. J.P.Morgan/Chase’s authorized agent announced there had been a pattern in foreclosure actions of filing improper or inadequate documentation, including false affidavits. http://www.nytimes.com/2010/09/30/business/30mortgage.html
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Despite the lack of notice, Ralph May, Deborah May’s spouse and a Manito Machinery officer, did learn of the foreclosure. He made four demands on Bank One’s agents for return of the personal property which Bank One did not own.(R. C872-873) (1) He demanded Devonshire Realty which Bank One retained to sell the foreclosed Manito residence to return Deborah May and Manito Machinery’s property. (R. C872). Devonshire referred him to the Codlis law firm. (2) He demanded return of the property to an employee of Codilis on April 18, 2001. (R. C873) (3) For the third and fourth times, he demanded of the Codilis employee the return of his property on April 19, 2001, and one final time on October 30, 2001. (R. C873). Each of these demands was refused.
The courts have long recognized a lender in possession of personal property on foreclosed real estate has a duty to preserve it for the owner. Dolejs v. Lietuva Building & Loan Ass’n, 305 Ill.App. 498, 498, 26 N.E.2d 419 (1940)(lender/mortgagee taking possession of real estate under a judicial foreclosure order has a duty to give the mortgagor the opportunity to remove his personal property). The Seaboard Burner Corp. v. Home Owners’ Loan Corp., 10 Conn.Supp. 455, 1942 WL 807 (1942)(holding lender/mortagee liable for conversion when personal property acquired during foreclosure is not returned on demand).
To allow it [lender/mortgagor] to stand by and hope to acquire the property which it knew belonged to another would be to permit the enrichment of one with the
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property of another which in good conscience and equity belongs to the other. The Seaboard Burner, Id.
See also Aschermann v. Philip Best Brewing Co., 45 Wis. 262, 3-4, 1878 WL 6883 (1878)(the wrongful destruction of goods by someone not the owner and knows who the owner is conversion even after an opportunity to remove it was given); Lancaster v. Stanetsky, 221 Mass. 312, 314, 108 N.E. 1060 (Mass. Supreme Court 1915)(Defendant took possession of premises and knew machine belonged to another; sale of goods was conversion); Newhall Chain, Forge & Iron Co. v. William J. Oliver Mfg. Co., 7 Tenn.App. 127, 3, 1927 WL 2262 (Tenn.App. 1927)(Trustee winding up corporation was liable for conversion when a boom he knew belonged to another was sold).
Consistent with these universally accepted authorities, the Third District majority held the lender’s duty to preserve the personal property on the foreclosed premises for the owner included one of two alternatives. (1) Actual notice to the owners of Bank One’s custody of the personal property and an opportunity to obtain it, or, (2) If the personal property had not been destroyed at the time of Ralph May’s April 18, 2001, April 19, 2001, and October 30, 2001 demands for the property, to return the property of, Deborah May, and Manito Machinery who were the rightful owners. The failure to do either of these alternatives renders Bank One and its agent Codilis, who actively participated in denying the property to Deborah May and Manito Machinery, liable for conversion.
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II.
The Foreclosure Judgment Was Not Res Judicata of Conversion of Personal
Property Because (1) It Occurred After the Foreclosure Judgment and (2) the False Affidavit of Publication Did Not Provide Personal Jurisdiction in the Foreclosure
Res judicata bars subsequent litigation of claims and demands that were litigated or could have been litigated. Stathis v. First Arlington Nat. Bank, 226 Ill.App.3d 47, 52, 589 N.E.2d 625 (1992). The Third District correctly held res judicata inapplicable.
(1) The conversion of personal property on the real estate occurred after the January 3, 2001 foreclosure judgment became final when Bank One’s agents refused four demands for return of the personal property. See Slip op at 10 relying upon Cockreham v. Wyoming Production Credit Ass'n, 743 P.2d 869, 872 (1987)(owner’s action for conversion of personal property on foreclosed premises against lender/mortgagee is not precluded by res judicata as conversion claim did not arise until after foreclosure judgment was final).
(2) Bank One never obtained personal jurisdiction over Deborah May from notice by publication because the Affidavit of Publication was false). See Correll v. Greider, 245 Ill. 378, 380 92 N.E. 266 (1910)(holding decree based on service on defendant by publication on affidavit that did not comply with the publication statute was void for want of jurisdiction); Caswell v. Caswell, 120 Ill. 377, 11 N.E. 342 (1887)(vacating decree of divorce for false affidavit filed to obtain service by publication). A party can not be
12
bound by a judgment in an action in which he has not been served with process. Newberry Library v. Board of Education of City of Chicago, 387 Ill.85, 89, 55 N.E.2d 147 (1944). See also Peralta v. Heights Medical Center, 485 U.S. 80, 86, 108 S.Ct. 896 (1988)(judgment without service of process void despite absence of meritorious defense).
III.
Laches Has No Application Here
Laches is an equitable doctrine. Slip op at p. 11 citing In Re Marriage of Smith,
347 Ill. App. 3d 395, 401, 806 N.E.2d 727, 732 (2004). Bank One filed a false Affidavit of Publication to obtain the foreclosure judgment to gain possession of the real estate. (R. C172). Equity will not aid a wrongdoer; Bank One and Codilis committed a fraud on the Circuit Court of Mason County by filing the false Affidavit of Publication to dispense with personal service. See Riddlesbarger v. Riddlesbarger, 324 Ill.App. 176, 57 N.E.2d 901 (1944)(rejecting attempt by one who procured a divorce decree by fraud to enforce decree).
Special circumstances beyond the passage of time must be shown in order for a party to avail itself of laches to bar an action filed with the statute of limitations. Slip Op at p. 12 citing Smith, 347 Ill.App.3d at 401. One demand was made on Devonshire Realty and three demands were made on Bank One’s attorneys for return of the personal
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property three and one half months after it took possession of the foreclosed real estate. April 18, 2001, April 19, 2001, and October 30, 2001. (R. C872-873). Bank One has demonstrated nothing that occurred between the time of those demands and the filing of the action 3 ½ years later within the five year statute of limitations that caused it prejudice. 735 ILCS 5/13-2005 (2008); Slip op at p. 12.
IV.
The Dissent’s Position That the Dismissal Should be Affirmed is Erroneously
Based on Landlord-Tenant Cases Involving the Landlord ‘s Lien on the
Tenant’s Personal Property and Ignores the Fact of Record That Deborah May Never Knew Bank One Held Her Mortgage
With all due respect to Justice Wright, her dissent is based on a serious factual error and a serious legal error. (1) Manito Machinery and Deborah May did not sit on their rights during Bank One’s mortgage foreclosure. They had no notice that the property was in foreclosure as a Codilis lawyer had filed a false Affidavit for Service of Publication stating after diligent search Ralph May and Deborah May could not be found. C172. The Sheriff’s Return informed the Mays resided in Milford, Illinois and Bank One repossessed two automobiles from the Mays in Milford, Illinois. C170, C223-24. Nor could Deborah May attempt to make arrangements with the lender for her delinquency in payments during the period of foreclosure. Her mortgage was taken out with Pinnfund. Pinnfund assigned it to BNC Mortgage on September 7, 1999. (R. C132). The
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assignment complied with the Statute of Frauds, although there is no indication of record showing notice of the assignment to Deborah May. Bank One obtained an Order of Foreclosure and Sale on a mortgage it did not own on July 12, 2000. (R. C223-224). Bank One did not obtain the assignment from BNC Mortgage in writing necessary to satisfy the Statute of Frauds for real estate mortgages. (R. C870; R. C132). Deborah May had no notice that Bank One owned her Pinnfund mortgage. Id.
(2) Justice Wright’s position that the dismissal of the complaint should be affirmed was based on cases holding a landlord has no duty of care to a tenant’s personal property left behind after a lawful eviction of the tenant. Slip op at p. 2 discussing Dargis v. Paradise Park, Inc., 354 Ill. App. 3d 171, 182, 819 N.E.2d 1220,1231 (2004); Fortech, L.L.C. v. R. W Dunteman Co., Inc., 366 III. App. 3d 804, 814, 852 N.E.2d 451,460 (2006); Row v. Home Savings Bank, 306 Mass. 522, 29 N.E.2d 552 (1940).
Dargis and Fortech were landlord-tenant cases; a landlord has a lien on the tenant’s personal property that attaches when the landlord files a distress for rent.735 ILCS 5/9-301 (2008); Southwest Bank of St. Louis v. Poulokefalos, 401 Ill.App.3d 884, 931 N.E.2d 285, 291 (2010). Row, the Massachusetts case, was also based on the landlord’s lien on a tenant’s personal property. The lender, which had foreclosed on a
15
landlord’s property, had obtained the landlord’s right to assert a lien for unpaid rent against the delinquent tenant’s personal property.
Deborah May owned the 24101 Tonya Court, Manito, Illinois house in fee simple subject to the real estate mortgage. A real estate mortgage does not grant a security interest, a right or possession, or title to personal property contained on the realty. Sword v. Low, 122 Ill. 487, 13 N.E. 826 (1887)(holding real estate mortgage provided no lien on personal property in the form of a boiler and engine located on the land, which were subject to chattel mortgage). The landlords did not convert the tenants’ property in the cases referenced by the dissent because the landlords themselves had an immediate right to possession and ownership of that property under their landlord’s lien.
V.
Conclusion
The Appellate Court correctly reversed the circuit court’s dismissal of the second amended complaint. In so ruling, it properly held that the lender/mortagee’s duty to give the opportunity to the owner to obtain his personal property from foreclosed real estate includes notice to the owner when the lender had filed a false affidavit of publication to dispense with personal service or process in the foreclosure.
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Respectfully submitted,
______________________________
RICHARD L. STEAGALL, Attorney
for Respondents, Manito Machinery, Inc. and Deborah L. May
Saturday, October 30, 2010
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