LEXSEE 223 ILL. APP. 3D 1007,AT 1014

ROSEMARY ROBINSON, Plaintiff-Appellant, v. BUILDERS SUPPLY &LUMBER COMPANY, HELEN WILLENS, as EXECUTRIX OF THE ESTATEOF J.R. WILLENS, DECEASED, ALAN J. ARBUCKLE, GERALDINE M.ARBUCKLE, MARYANNE HILLEBRAND, DIANE THOMAS, ANTHONY B.BRUNO, BRUNO & ORVINO, FIRST FEDERAL SAVINGS & LOAN OFPROVISO TOWNSHIP, CHICAGO TITLE & TRUST COMPANY, as TRUSTEEUNDER TRUST DEEDS 696150 AND 706218, Defendants-Appellees. ROSEMARYROBINSON, Defendant-Appellant, v. FIRST FEDERAL SAVINGS BANK OFPROVISO TOWNSHIP, Plaintiff-Appellee, and BUILDERS SUPPLY & LUMBER COMPANY, STATE OF ILLINOIS, UNKNOWN HEIRS, OR DEVISEES OF J.R.WILLENS, HELEN WILLENS NOT PERSONALLY BUT SOLELY AS THEEXECUTOR OF THE ESTATE OF J.R. WILLENS, UNKNOWN OTHERS ANDNON-RECORD CLAIMANTS, Defendants-Appellees.1-90-2510APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SIXTH DIVISION223 Ill. App. 3d 1007; 586 N.E.2d 316; 1991 Ill. App. LEXIS 1971; 166 Ill. Dec.358November 22, 1991, Filed

SUBSEQUENT HISTORY: [***1]

AsModified January 17, 1992. RehearingDenied January 17, 1992. Released forPublication February 28, 1992.

PRIOR HISTORY:

APPEAL FROM THE CIRCUITCOURT OF COOK COUNTY. HONORABLE ALBERTGREEN PRESIDING

DISPOSITION:

Affirmed in part;reversed in part and remanded withdirections.

CASE SUMMARY:PROCEDURAL POSTURE:

Appellant ownersought review of an order from theCircuit Court of Cook County(Illinois), which granted appelleecompany's cross-motion for summaryjudgment in the owner's action againstthe company for specific performance,breach of contract, and a declarationthat her deeds were equitablemortgages. Appellant company soughtreview of the order for appelleesavings and loan in its foreclosureaction against the owner's mortgage.

OVERVIEW:

The owner filed an actionagainst the company for specificperformance of an installment contractfor warranty deed, to recover damagesfor breach of contract, and for adeclaration that her deeds constitutedequitable mortgages. The circuit courtdenied summary judgment to the owner.The owner appealed and asserted thatthe denial of her motion for summaryjudgment was improper. The savings andloan filed a foreclosure actionagainst the company on the owner'smortgage. The circuit court grantedthe company's summary judgment in theforeclosure action. The ownerappealed. The court held that: (1)genuine issues of fact existed as towhether the contract constituted anequitable mortgage or a sale andwhether the owner defaulted under thecontract, (2) genuine issues of factexisted as to the adequacy of theconsideration under the equitablemortgage theory, and (3) genuineissues of fact existed as to whetherthe owner defaulted under thecontract.

OUTCOME:

The court affirmed the partof the order that denied summaryjudgment to the owner in her actionagainst the company for specificperformance, breach of contract, and adeclaration that her deeds wereequitable mortgages. The courtreversed the part of the order thatgranted the company summary judgmentin the savings and loan's foreclosureaction. The case was remanded for atrial on the issues.

CORE TERMS:

summary judgment,mortgage, equitable mortgage, deed,rental, repurchase, monthly payments,adequacy, accounting, defaulted,issues of material fact, inadequacy,genuine, operating expenses,indebtedness, expenditures, exceeded,default, triable issues of fact,purchase price, sophistication,deposition, distressed, purchaser,monthly, valued, owed, quitclaim deed,unpaid, movant

LexisNexis(R) Headnotes

Civil Procedure > Summary Judgment > Motions for Summary Judgment > GeneralOverview Civil Procedure > Summary Judgment > Standards > AppropriatenessCivil Procedure > Summary Judgment > Supporting Materials > Affidavits

[HN1] In determining whether themoving party is entitled to summaryjudgment, the pleadings, depositions,admissions and affidavits should bestrictly construed against the movantand liberally in favor of theopponent. Summary judgment is properwhen the parties agree on relevantfacts and the record presents purelyquestions of law. When the facts allowfor more than one conclusion,including one unfavorable to themovant, motion for summary judgmentshould be denied. Summary judgment isa drastic means of disposing oflitigation and should be granted onlywhen the right to it is clear and freefrom doubt.

Real Property Law > Deeds > Covenantsof TitleReal Property Law > Financing > Mortgages & Other Security Instruments> Definitions & InterpretationReal Property Law > Financing > Mortgages & Other Security Instruments> Equitable Mortgages

[HN2] Under Illinois law, a deedabsolute on its face may be consideredan equitable mortgage under certaincircumstances. The relevant statuteprovides: Every deed conveying realestate, which shall appear to havebeen intended only as a security inthe nature of a mortgage, though it bean absolute conveyance in terms, shallbe considered a mortgage. Ill. Rev.Stat. ch. 95, para. 55 (1989).

[HN3] Whether a deed is to beconsidered as an equitable mortgagedepends on the parties' intentions. Toconvert an absolute deed into amortgage, the proof must be clear,satisfactory and convincing and maycome from almost every conceivablefact that could legitimately aid thatdetermination.

Real Property Law > Deeds > Types > Quit Claim DeedsReal Property Law > Financing > Mortgages & Other Security Instruments> Definitions & InterpretationReal Property Law > Financing > Mortgages & Other Security Instruments> Equitable Mortgages

[HN4] Where the consideration isgrossly inadequate, a mortgage isstrongly indicated.

Evidence > Inferences & Presumptions > General Overview Real Property Law > Financing > Mortgages & Other Security Instruments

> Definitions & Interpretation

[HN5] While a debt relationship isessential to a mortgage, directevidence is not necessary and, infact, no particular type of evidenceis required.

JUDGES:

McNAMARA, RAKOWSKI, LaPORTA

OPINION BY:

McNAMARA

OPINION:[**317]

MODIFIED ON DENIAL OFREHEARING

[*1008]

JUSTICE McNAMARAdelivered the opinion of the court:This appeal arises from twoconsolidated cases. In the first,plaintiff, Rosemary Robinson, broughtan action against Builders Supply &Lumber Company ("Builders") and othersseeking Builders Supply & LumberCompany ("Builders") and othersseeking specific