(Download) "Bank of Benton v. Cogdill" by Illinois Appellate Court — Fifth District Reversed and Remanded # Book PDF Kindle ePub Free
eBook details
- Title: Bank of Benton v. Cogdill
- Author : Illinois Appellate Court — Fifth District Reversed and Remanded
- Release Date : January 26, 1983
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 65 KB
Description
The plaintiff, Bank of Benton, Benton, Illinois, appeals from the trial court's judgment denying it a deficiency judgment and attorney fees following foreclosure of a mortgage and sale of the property subject to the mortgage. The bank asserts on appeal that this judgment was contrary to the law and the evidence and that the bank was entitled to a deficiency judgment and attorney fees where the amount realized from the judicial sale of the mortgaged property was less than the amount of the defendants' indebtedness. The defendants-mortgagors contend, however, that the court's judgment can be sustained on the basis of their affirmative defense in the foreclosure action that the bank had waived its right to a deficiency judgment by agreeing to take a deed to the mortgaged property in lieu of foreclosure. We find as a matter of law that no such agreement existed, and we accordingly reverse the judgment of the trial court. On July 31, 1980, the plaintiff bank filed a two-count complaint for foreclosure of a first and second mortgage on real estate owned by the defendants, Danny and Carla Cogdill. In their answer to this complaint the defendants asserted that the plaintiff was not entitled to a deficiency judgment against them because, in March and April of 1980, the defendants had tendered and offered to convey their interest in the real estate to the plaintiff and were refused. At that time, the defendants stated, the real estate was of a fair market value sufficient to pay the amount of indebtedness due the plaintiff under its notes and mortgages. The defendants further alleged that the plaintiff was not entitled to attorney fees in the foreclosure action because this action was unnecessary and was due to the plaintiff's failure to accept the real estate in satisfaction of the debt.
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