North Federal Sav. & Loan Ass'n v. Tokoph

Decision Date16 May 1969
Docket NumberGen. No. 53269
Citation249 N.E.2d 241,110 Ill.App.2d 254
PartiesNORTH FEDERAL SAVINGS & LOAN ASSOCIATION, a corporation of the U.S.A., Plaintiff-Appellee, v. Richard A. TOKOPH and Margaret Tokoph, et al., Defendants-Appellants.
CourtUnited States Appellate Court of Illinois

Harold A. Liebenson, Edward G. Raszus and Meyer M. Gilbert, Chicago, for defendants-appellants.

Eley & Rusher, Chicago, for plaintiff-appellee; Lommen D. Eley, Chicago, of counsel.

STOUDER, Presiding Justice.

On August 16, 1966, North Federal Savings & Loan Association, Plaintiff-Appellee, commenced this mortgage foreclosure action in the Circuit Court of Cook County, seeking foreclosure of several parcels of land in Chicago in which Richard Tokoph and Margaret Tokoph, Defendants-Appellants, owned the beneficial interest.

The defendants filed their appearance but did not answer the complaint. Pursuant to due notice, a decree of foreclosure and sale was entered on December 14, 1966, by default. Within 30 days defendants moved to vacate the foreclosure decree which motion was denied on March 19, 1968 and it is from the denial of such motion that this appeal follows.

The substance of the motion to vacate is that foreclosure was improperly decreed because the parties had agreed to a transfer of the properties in lieu of foreclosure. From the affidavits, documentary exhibits and testimony it appears that prior to the entry of the foreclosure decree, Meyer Gilbert, attorney for defendants, and Robert Rusher, attorney for plaintiff, (also a member of plaintiff's Board), negotiated for a transfer of the properties in lieu of foreclosure. It is undisputed that Rusher by letter, offered to accept transfer of the properties in lieu of foreclosure with defendants being released from personal liability on their obligation secured by the mortgages. According to Gilbert, this offer was accepted by his letter of December 12, 1966, but according to Rusher the offer was rejected by Gilbert's letter of December 3, 1966, offering to accept as additional consideration $3,000.00. The dispute in the evidence deals mainly with whether the December 3 letter was a counter proposal or not. The Chancellor concluded that defendants had made a counter proposal, which constituted a rejection of plaintiff's offer thereby terminating such offer and precluding its later acceptance. This counter proposal was not accepted by plaintiff.

In their appeal defendants raised no question of the propriety of the Chancellor's order so far as the merits of the case are concerned. Rather, defendants argue, the Chancellor erred in denying their motion for a continuance thus preventing them from fully presenting their evidence.

The testimony of Rusher as an adverse witness was presented at hearings on April 17, 1967, August 14, 1967 and January 8, 1968. Gilbert also testified on January 8. Between January, 1967 and January 8, 1968, defendants' counsel had requested and secured numerous continuances. On January 8, 1968, hearing was continued until the afternoons of March 18 and 19, 1968, these dates being preferred by Gilbert in preference to earlier dates suggested by the Chancellor in order that the dates not conflict with Gilbert's vacation. During these hearings defendants were represented by Philip Aimen, an associate of Gilbert's.

On March 14, 1968, defendants' counsel gave due notice that on the morning of March 18, 1968, he would request a continuance. Plaintiff's counsel also served notice that he would oppose such motion and request that the hearing proceed. On the morning of March 18, the Chancellor considered the motion, supporting affidavit of Aimen and a letter and telegram from Gilbert to Aimen. Aimen's affidavit indicated that Gilbert was unavailable because on vacation. The telegram dated March 3, 1968, indicated that on the advise of his doctor he would not return until March 25. The letter dated March 13, 1968, referred to 'circumstances beyond my control' and requested that Aimen secure a continuance until April. Plaintiff opposed the granting of the continuance and the motion therefore was denied and it is the order denying such continuance which defendants claim constitutes reversible error.

At the hearing on the afternoon of March 18, 1968, the testimony of Richard Tokoph was presented. After arguments of counsel were heard, the court denied defendants' motion to vacate the foreclosure decree.

Defendants argue that in a mortgage foreclosure proceeding they should have been given full opportunity to present all necessary evidence as a safeguard and protection from the harsh consequences of foreclosure action. More particularly defendants argue that because they were not afforded an opportunity to present further testimony of Gilbert the action of the Chancellor was unreasonable, arbitrary and prejudicial. Thus the only question before us is the propriety of the Chancellor's order denying defendants' request for a continuance.

Present Supreme Court Rule 231, Ill.Rev.Stat.1967, c. 110A, § 231 (former rule 14) dealing with motions for continuances, provides '(a) Absence of Material Evidence. If either party applies for a continuance of a cause on account of the absence of material evidence, the motion shall be...

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