469 N.E.2d 585 (Ill.App. 3 Dist. 1984), 3-83-0522, Home Sav. and Loan Ass'n of Joliet v. Schneider

Docket Nº:3-83-0522.
Citation:469 N.E.2d 585, 127 Ill.App.3d 689, 82 Ill.Dec. 941
Party Name:HOME SAVINGS AND LOAN ASSOCIATION OF JOLIET, an Illinois corporation, Plaintiff, v. Roy E. SCHNEIDER, Sue C. Schneider, Richard H. Hataburda, Patricia D. Hataburda, Ernest L. Harrelson and Peggy J. Harrelson, Defendants, and Ernest L. HARRELSON and Peggy J. Harrelson, Counter-plaintiffs-Appellees, v. Richard H. HATABURDA and Patricia D. Hataburda,
Case Date:May 31, 1984
Court:Court of Appeals of Illinois
 
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Page 585

469 N.E.2d 585 (Ill.App. 3 Dist. 1984)

127 Ill.App.3d 689, 82 Ill.Dec. 941

HOME SAVINGS AND LOAN ASSOCIATION OF JOLIET, an Illinois

corporation, Plaintiff,

v.

Roy E. SCHNEIDER, Sue C. Schneider, Richard H. Hataburda,

Patricia D. Hataburda, Ernest L. Harrelson and

Peggy J. Harrelson, Defendants,

and

Ernest L. HARRELSON and Peggy J. Harrelson,

Counter-plaintiffs-Appellees,

v.

Richard H. HATABURDA and Patricia D. Hataburda,

Counter-defendants-Appellants.

No. 3-83-0522.

Court of Appeals of Illinois, Third District.

May 31, 1984.

Rehearing Denied Oct. 19, 1984.

Page 586

[127 Ill.App.3d 690] [82 Ill.Dec. 942] James C. Murray, Jr. and Beth Byster Corvino, Katten, Muchin, Zavis, Pearl & Galler, Chicago, James E. Babcock, Wright & Babcock, Joliet, for counter-defendants-appellants.

Roman R. Okrei, Stefanich, McGarry & Wols, Ltd., Joliet, for counter-plaintiffs-appellees.

BARRY, Justice:

The suit which is the subject of this appeal was initiated in the circuit court of Will County on December 1, 1981, by Home Savings and Loan Association, mortgagee of property at 725 Geneva Avenue, Romeoville, Illinois. The financial institution's foreclosure cause of action sought to enforce a due-on-sale provision in its 1972 mortgage agreement against mortgagors, Roy and Sue Schneider, and their successors, Richard and Patricia Hataburda. Also included as party defendants were Ernest and Peggy Harrelson as possessors of the premises. According to the verified complaint, the Hataburdas entered into an agreement in 1976 to assume the Schneiders' liability on their mortgage loan. The Hataburdas then entered into a purchase-sale agreement with the Harrelsons for $47,500 on September 23, 1978, in violation of the due-on-sale terms of the note and mortgage agreement. The amount claimed due in the complaint was $18,170.42.

On December 28, 1981, the Harrelsons answered Home Savings and Loan's complaint and filed a verified cross-complaint in four counts against the Hataburdas for rescission of their purchase contract and for restitution, alleging that they, the Harrelsons, had been induced to enter into the agreement by fraud and negligent misrepresentations[127 Ill.App.3d 691] of the Hataburdas. (The cross-complaint was later amended to include four additional counts against the Hataburdas.) The Harrelsons contemporaneously filed a motion for the appointment of a receiver to accept their monthly payments under the contract with the Hataburdas pending the outcome of the lawsuit. The Hataburdas then filed a forcible entry and detainer suit against the Harrelsons to recover possession of the real estate at issue. That suit was consolidated with Home Savings and Loan's action and the Harrelsons' cross-complaint on motion of the Harrelsons.

On March 17, 1982, the trial court ordered the Harrelsons to pay their monthly installment payments of $438.97 to Home Savings and Loan, and ordered Home Savings and Loan to apply toward the mortgage an amount representing the Hataburdas' monthly obligation and to place the balance in an escrow account pending resolution of the lawsuit.

On August 27, 1982, on motion of Home Savings and Loan, the court dismissed the financial institution's foreclosure complaint, finding that the plaintiff had accepted payment by the Hataburdas in satisfaction of indebtedness due on the mortgage. Finally, on May 2, 1983, the matter was set for trial on the Harrelsons' cross-complaint against the Hataburdas for fraud and negligent misrepresentation and on the Hataburdas' forcible entry and detainer action against the Harrelsons. Counsel for the Harrelsons moved to dismiss the four counts of their complaint which prayed for rescission of the contract to purchase. The motion was allowed and the trial proceeded on the remaining counts for restitution.

At the conclusion of the Harrelsons' case-in-chief, counsel for the Hataburdas

Page 587

[82 Ill.Dec. 943] moved for a directed verdict which was denied. Then, Hataburdas' counsel moved for a dismissal of the forcible entry and detainer suit. After entertaining arguments of counsel and an offer of...

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