text:
    HOWARD ECKER & CO., Plaintiff-Appellee, v. TERRACOM DEVELOPMENT GROUP, INC., Defendant-Appellant—(Trans Union Corporation, Defendant).
    First District (4th Division)
    No. 82—2185
    Opinion filed August 4, 1983.
    Daniel J. Pope, Richard A. Ungaretti, and Alexander S. Vesselinovitch, all of Coffield, Ungaretti, Harris & Slavin, of Chicago, for appellant.
    Donald E. Egan and Lee Ann Watson, both of Katten, Muchin, Zavis, Pearl & Caller, of Chicago, for appellee.
   JUSTICE LINN

delivered the opinion of the court:

In March 1979, the plaintiff filed suit against defendants Trans Union Corporation and Terracom Development Group, Inc. (TDG), in the circuit court of Cook County, seeking damages stemming from alleged wrongful conduct in regard to a real estate brokerage commission. Pretrial discovery was concluded in July 1981. When the case was called for trial on June 25, 1982, counsel for the plaintiff failed to appear, and the trial judge entered an order dismissing the cause for lack of prosecution. On August 5, 1982, the plaintiff filed a section 72 petition (recodified as Ill. Rev. Stat. 1981, ch. 110, par. 2—1401) before the same trial judge to vacate that order, and on August 5, 1982, an order was entered granting the motion to vacate, reinstating the case, and setting October 25, 1982, as the date for a bench trial. On September 2, 1982, appellant TDG filed a notice of appeal of the order vacating the dismissal for want of prosecution. TDG now argues that the trial judge lacked jurisdiction to grant the plaintiff’s section 72 petition, as well as that he abused his discretion in doing so. We reject these claims and affirm the ruling of the trial court.

TDG first contends that the trial judge lacked jurisdiction to grant the plaintiff’s section 72 petition because the dismissal for want of prosecution was not a final judgment. It cites the Illinois Supreme Court’s recent opinions in Flores v. Dugan (1982), 91 Ill. 2d 108, 435 N.E.2d 480, and Wold v. Bull Valley Management Co. (1983), 96 Ill. 2d 110, 449 N.E.2d 112, to this effect. However, we note that the majority opinion in neither case refers to section 72 petitions. Accordingly, we choose to follow the reasoning set forth by the Second Division of this court in Yorke v. Stineway Drug Co. (1982), 110 Ill. App. 3d 1009, 443 N.E.2d 644, appeal denied (1983), 93 Ill. 2d 549, which held that an appeal from a section 72 petition contesting a dismissal of an action for want of prosecution is appealable. We therefore conclude that the trial judge had proper authority to grant the section 72 petition.

TDG’s second argument is that the trial judge abused his discretion in granting that petition since the plaintiff failed to allege facts in the section 72 petition that revealed both a meritorious claim and the exercise of due diligence in presenting such a claim. However, our review of the record discloses that the plaintiff’s petition was supported by a lengthy affidavit of counsel that explicated in detail the inadvertent clerical and docket errors that led to counsel’s failure to appear, as well as by legal analysis and supporting documentation, including deposition transcript pages and exhibits, that would, if proved at trial, reveal a meritorious claim. In addition, the plaintiff diligently filed its initial petition to vacate the dismissal for want of prosecution within several days of learning of that order, and then filed the proper section 72 petition within a week after the relevant 30-day period following the entry of the order. Further, we see no resultant prejudice to TDG in proceeding to trial. Cf. Solomon v. Arlington Park/Washington Park Race Track Corp. (1979), 78 Ill. App. 3d 389, 396 N.E.2d 1118, and King v. Equity Mortgage Corp. (1977), 52 Ill. App. 3d 141, 367 N.E.2d 268.

Under these circumstances, we must conclude that the trial judge considered all the circumstances set forth in the section 72 petition in deciding to exercise his equitable powers in the interest of justice and fairness, and we cannot say that he abused his discretion in so doing. Yorke v. Stineway Drug Co.; Geller v. General Motors Corp. (1980), 87 Ill. App. 3d 972, 410 N.E.2d 262.

Finally, we reject the plaintiff’s request for costs and attorney fees. Though our consideration of the relevant case law and the record leads us to conclude that TDG’s appeal must be denied, the plaintiff’s claim that the appeal is frivolous is without basis, particularly where the plaintiff’s error in missing a trial date is the underlying cause of this appeal, and the plaintiff had initially failed to follow the appropriate procedure to seek such relief. Therefore, we believe each party should bear its own costs on appeal. See Hamer v. Kirk (1976), 64 Ill. 2d 434, 356 N.E.2d 524; In re Estate of Malloy (1981), 96 Ill. App. 3d 1020, 422 N.E.2d 76.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

ROMITI, P.J., and JIGANTI, J., concur.


source: Caselaw Access Project

author: JUSTICE LINN

license: Public Domain

text:
    THE GREAT-WEST LIFE ASSURANCE COMPANY, Plaintiff-Appellant and Cross-Appellee, v. GENERAL ACCIDENT FIRE AND LIFE ASSURANCE CORPORATION, LIMITED, Defendant-Appellee and Cross-Appellant.
    First District (4th Division)
    No. 81—2777
    Opinion filed June 9, 1983.
    Rehearing denied August 19, 1983.

      Peterson, Ross, Schloerb & Seidel, of Chicago (J. Robert Geiman and Robert A. Seidel, of counsel), for appellant.
    Cotton, Watt, Jones, King & Bowlus, of Chicago, and Rein, Mound & Cotton, of New York, New York (John M. Bowlus and Ernest E. Rosenberg, of counsel), for appellee.
   JUSTICE LINN

delivered the opinion of the court:

Plaintiff, the Great-West Life Assurance Company (Great-West), appeals from the order of the trial court denying its motion for summary judgment and granting the cross-motion for summary judgment filed by defendant, General Accident Fire and Life Assurance Company, Ltd. (General Accident). In addition, both parties appeal the entry of judgment in favor of Great-West in the amount of $15,418.66.

The sole issue presented for review is whether the trial court was correct in its determination of the limit of liability imposed by an endorsement to a contract of insurance between the parties. The trial court’s decisions on the motions for summary judgment and the amount of the judgment as entered were each a direct result of that initial determination of the limit of liability.

We affirm the decision of the trial court.

Facts

On July 15, 1978, General Accident issued to Great-West an all-risks policy providing insurance coverage for Great-West’s property at several locations and assessing an annual premium of $104,250. The policy contained the following pertinent terms and provisions:

“IN CONSIDERATION OF THE PROVISIONS AND STIPULATIONS HEREIN OR ADDED HERETO AND OF the premium above specified, this Company *** at location of property involved, to an amount not exceeding the amount(s) above specified [$2,500,000], does insure the insured named above *** to the extent of the actual cash value of the property at the time of loss, but not exceeding the amount which it would cost to repair or replace the property with material of like kind and quality within a reasonable time after such loss *** nor in any event for more than the interest of the insured, against all DIRECT LOSS BY FIRE ***.
* * *
3. LIMIT OF LIABILITY
Except as otherwise specified herein or by endorsement hereto, this Company shall not be liable for more than the following limits for any one loss ***: $2,500,000 as respects the perils of * * *
4. DEDUCTIBLE
a. All losses, damages or expenses arising out of any one disaster or casualty shall be adjusted as one loss, and from the amount of such adjusted loss shall be deducted the sum of $25,000.
* * *
7. PROPERTY COVERED a. Real Property
Except as hereinafter excluded, this policy covers:
(1) The interest of the Assured in all real property owned, used, or intended for use by the Assured *** or hereafter erected, or acquired ***.
(2) The interest of the Assured in the real property of others in the Assured’s care, custody or control, and the Assured’s liability imposed by law or assumed by contract, whether written or oral, for such property.
Ill
II. VALUATION
(a) Real Property. In case of loss the basis of adjustment unless otherwise endorsed herein shall be on a replacement cost basis if repaired or replaced at the same or another site, otherwise actual cash value.”

In addition to its property interests specifically covered by the all-risks policy, Great-West also was mortgagee of a building located at 213-31 Institute Place in Chicago, Illinois. The trust deed securing the promissory note held by Great-West provided that the company was entitled to make expenditures or take other action necessary to protect the premises:

“All moneys paid for any purposes herein authorized and all expenses paid or incurred in connection therewith ***, and any other moneys advanced by Trustee or the holders of the note to protect the mortgaged premises and the lien hereof *** shall be so much additional indebtedness secured hereby and shall become immediately due and payable without notice and with interest thereon ***.”

On January 5, 1977, Great-West filed a complaint in the chancery division of the circuit court of Cook County to foreclose on the trust deed, the remaining principal indebtedness on the note at that time being $198,447.59. However, the decree of foreclosure was not entered until February 22, 1979, at which time the decree established the total unpaid principal, accrued interest, fees, miscellaneous expenses, and attorney fees to be $261,870.55.

On February 5, 1979, an endorsement was added to the all-risks policy:

“It is hereby understood and agreed that in consideration of an additional premium of $171, the following location is added with Great-West Life Assurance Company as mortgagee AIMA [as interest may appear]:
213-231 Institute Place Chicago, Illinois $400,000 — On Building
Valuation on this location is to be on an actual cash value basis.
ALL OTHER TERMS AND CONDITIONS REMAIN UNCHANGED.”

The decree of foreclosure, entered on February 22, 1979, found that the mortgagor had waived his equity of redemption, and the mortgagee, Great-West, had acquired rights in the property superior to all others except judgment creditors. Then, on March 22, 1979, one month after the entry of the foreclosure decree but before the foreclosure sale, fire caused extensive damage to the building. By the time the sheriff’s deed was issued on April 28, 1979, following the foreclosure sale, Great-West had spent $12,373.55 to protect and maintain the premises. Also, Great-West spent $325,716.65 to reconstruct the building after the fire.

At the public sale of the fire-damaged property, which took place on April 19, 1979, Great-West successfully bid in the property for $247,742.51. On April 25, four days after the purchase, another endorsement to the all-risks policy was executed, amending the statement of Great-West’s interest in the Institute Place property from that of mortgagee to sole owner. The sheriff’s report of sale and distribution, filed on April 26, 1979, found that after subtracting the amount bid by Great-West from the total amount of the foreclosure decree, including interest and other miscellaneous expenses properly included, Great-West was still owed $28,045.11, a deficiency covered by the insurance policy. Accordingly, General Accident tendered to Great-West a check for $3,045.11, representing the net amount of the deficiency minus the $25,000 deductible.

Great-West, maintaining that General Accident had arbitrarily rewritten the terms of the policy, filed a complaint for a declaratory judgment to establish the amount of insurance proceeds due from General Accident under the all-risks policy. General Accident’s answer asserted the affirmative defense that because the outstanding mortgage debt is the limit of a mortgagee’s insurable interest, Great-West’s interest as mortgagee of the subject property had been reduced to the same extent that the mortgage debt had been reduced by the foreclosure sale; the insurer, therefore, was liable only for the difference between the debt still owed on the note and the amount Great-West had bid in for the property. Great-West, on the other hand, argued that the endorsement set a limit of $400,000 coverage on the Institute Place property, so the $325,716.65 spent to repair the fire damage should be recoverable under the terms of the all-risks policy.

Great-West filed motions to strike defendant’s affirmative defenses and for judgment on the pleadings; both motions were denied. Thereafter, General Accident moved for summary judgment dismissing the complaint; Great-West cross-moved. Although General Accident’s motion was granted and Great-West’s denied, the trial court entered judgment in favor of Great-West for $15,418.66, representing the $3,045.11 balance remaining on the mortgage debt plus Great-West’s costs of $12,373.55 for maintaining and protecting the property after the fire.

Both parties have appealed from the judgment order. Plaintiff Great-West claims that the contractually agreed-upon $400,000, not the mortgage debt, is the limit of recovery under the insurance policy, and therefore defendant General Accident owes to the plaintiff the full $325,716.65 cost of repairing the fire damage, minus the deductible. On the other hand, General Accident cross-appeals from that part of the judgment order holding defendant liable for more than the deficiency balance, $3,045.11, on the ground that the additional $12,373.55 was not included in the final order filed with the court approving the sheriff’s report of sale and distribution after the foreclosure sale.

Opinion

I

The only issue raised in an appeal of a trial court’s granting a motion for summary judgment is whether “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Ill. Rev. Stat. 1979, ch. 110, par. 57(3); Econo Lease, Inc. v. Noffsinger (1976), 63 Ill. 2d 390, 393, 349 N.E.2d 1, 2.) If documents to be considered show that there is a genuine issue as to any material fact, summary judgment should not be granted. (Gelsumino v. E. W. Bliss Co. (1973), 10 Ill. App. 3d 604, 295 N.E.2d 110.) In ruling on a motion for summary judgment, the trial judge must construe the pleadings and documents in the light most favorable to the nonmoving party. (Dakovitz v. Arrow Road Construction Co. (1975), 26 Ill. App. 3d 56, 324 N.E.2d 444.) Our task, therefore, is to examine the pleadings and the contract of insurance to determine whether one of the interpretations outlined above is correct as a matter of law. If so, then summary judgment in favor of the party maintaining that position is appropriate. On the other hand, if fair-minded persons considering the contract in light of the relevant principles of law could draw different conclusions, then the issues should be submitted to a jury to determine what conclusion seems most reasonable. Silberstein v. Peoria Town & Country Bowl, Inc. (1970), 120 Ill. App. 2d 290, 257 N.E.2d 12.

We necessarily begin with a review of the relevant principles of the law governing property insurance. First, “[a] contract of insurance is one of indemnity merely and any person having an interest in property may, through an insurance contract, indemnify himself against loss by fire or other insurable casualty. Mortgagors and mortgagees each have an insurable interest in the mortgaged property and the interests of both may be covered in one policy, or each may take out a separate policy.” (Le Doux v. Dettmering (1942), 316 Ill. App. 98, 109, 43 N.E.2d 862, 867.) The amount recoverable by a mortgagee after a loss does not depend upon whether the mortgagee’s interest is protected through independently purchased insurance or through a loss-payable clause in the mortgagor’s policy.

“Generally speaking, a person has an insurable interest in property whenever he would profit by or gain some advantage by its con-tinned existence and suffer loss or disadvantage by its destruction.” (Lieberman v. Hartford Fire Insurance Co. (1972), 6 Ill. App. 3d 948, 949, 287 N.E.2d 38, 40, citing 3 Couch on Insurance sec. 24:13, at 86 (2d ed. I960).) Because “[t]he law does not seek to evaluate the extent of the insurable interest *** [i]t therefore is immaterial that the interest of the insured is overvalued as long as the actual interest is substantial” enough in relation to the amount of insurance to avoid invalidation of the contract on the ground that it is an illegal wager. However, recovery is limited to the extent of the actual interest. 3 Couch on Insurance sec. 24:2, at 67-68 (2d ed. 1960).

“The mortgagee’s insurable interest is prima facie the value mortgaged, and extends only to the amount of the debt, not exceeding the value of the mortgaged property.” (3 Couch on Insurance sec. 24:72, at 160 (2d ed. I960).) As between a mortgagor and mortgagee, “ '*** the insurance money, in case of the destruction of the property, represents the property itself ***.’ ” (White v. United States Fidelity & Guaranty Co. (1974), 21 Ill. App. 3d 588, 594, 316 N.E.2d 131, 136, citing Grange Mill Co. v. Western Assurance Co. (1886), 118 Ill. 396, 399, 9 N.E. 274, 275.) The purpose of insurance protecting the mortgagee’s interest is to secure payment of the balance of the debt evidenced by the mortgage note in the event that the building should be damaged or destroyed. (21 Ill. App. 3d 588, 595, 316 N.E.2d 131, 137.) Consequently, the balance of the debt at the time of the fire determines the amount recoverable by the mortgagee. 4 Appleman, Insurance Law & Practice sec. 2122, at 34 (1969).

Unlike the mortgagor, whose “insurable interest covers the full value of the mortgaged premises even though the mortgage debt is equivalent to the full value of the property” (3 Couch on Insurance sec. 24:69, at 154 (2d ed. 1960), citing Trustees of Schools v. St. Paul Fire & Marine Insurance Co. (1920), 296 Ill. 99, 129 N.E. 567), the mortgagee relies on the property only as security for his debt (296 Ill. 99, 129 N.E. 567), because “in insuring, he is insuring not the real estate but his interest or lien thereon.” (3 Couch on Insurance sec. 24:72, at 160 (2d ed. 1960).) “The risk insured against is an impairment of the mortgaged property which adversely affects the mortgagee’s ability to resort to the property as a source for repayment. Where the debt has been satisfied in full subsequent to the fire, neither reason nor precedent suggest recovery on the policy by the mortgagee.” Whitestone Savings & Loan Association v. Allstate Insurance Co. (1971), 28 N.Y.2d 332, 337, 270 N.E .2d 694, 697.

A mortgagee retains an insurable interest sufficient to sustain his policy even though the property has been sold under deed of trust, so long as a judgment creditor holds the right to redeem the premises. If the insurance policy provides that any loss is payable to the mortgagee as his interest may appear and his right to recover will not be invalidated by foreclosure or sale, the mortgagee’s own purchase of the property at the foreclosure sale will not preclude his recovery for any loss after the sale but within the statutory period of redemption. (3 Couch on Insurance sec. 24:72, at 161 (2d ed. I960).) “*** it is well settled that full or partial extinguishment of the debt itself, whether prior to the loss [citation] or subsequent to the loss [citation], precludes to the extent thereof, any recovery by the *** mortgagee for the plain and sole reason that the debt itself, has been to that extent extinguished.” Insurance Co. of North America v. Citizens Insurance Co. (7th Cir. 1970), 425 F.2d 1180, 1182, quoting Rosenbaum v. Funcannon (9th Cir. 1962), 308 F.2d 680, 684.

Turning now to an examination of the instant case, we can see clearly that the trial judge’s disposition of both motions for summary judgment was correct. A comparison of the facts of the case at hand to the principles governing a mortgagee’s right to recover under a policy of real property insurance shows that, as to the Institute Place property, at the time of the loss Great-West was insured as “Mortgagee, AIMA [as interest may appear].” The principle of indemnification underlying all insurance allows recovery only of the loss suffered by the insured, no matter what the maximum limit of liability specified in the contract of insurance. The policy itself stated that the limit of insurance on any given piece of property extended to the actual cash value of the property at the time of loss “nor in any event for more than the interest of the insured.” The endorsement to the policy clearly indicates Great-West’s interest in the Institute Place property to be that of mortgagee, possessor of a lien against the property; the amount of the lien, therefore, is the extent of Great-West’s insurable interest. Omitting consideration of the deductible amount and including all appropriate fees and interest from the date of the foreclosure decree to the date of sale, Great-West’s lien and therefore insurable interest, as ultimately determined by the trial court, was valued at a maximum of $288,616.17. At no time during its tenure solely as mortgagee before the foreclosure sale could Great-West have recovered more than that amount for a fire loss. By bidding:in the debt to purchase the property, Great-West established that amount as its estimate of the value of the property in its burned condition at the time of the sale; General Accident, in accordance with the insurance policy, paid to Great-West the deficiency between the amount bid and the amount of the remaining mortgage debt, thus making Great-West whole.

Great-West dismisses as inapplicable all the case law cited by General Accident that discussed a mortgagee’s limit of recovery under a loss-payable insurance policy rather than under an independently purchased policy insuring the mortgagee’s interest. Not only does Great-West fail to explain clearly why that case law is inapplicable, but our reading of the insurance contract between the parties discloses that in the instant case, either a loss-payable clause or an independent contract of insurance would have limited Great-West’s recovery to the amount of its debt, be that debt satisfied by insurance proceeds or by foreclosure and acquisition of legal title to the property in exchange for its mortgage note. The policy at issue contains a subrogation clause declaring that “[i]n the event of any payment under this policy, [General Accident] shall be subrogated to the extent of such payment to all [Great-West’s] rights of recovery therefor.” A standard mortgage (loss-payable) clause provides that in the event the insurer makes any payment to the mortgagee under the policy and finds that “as to the mortgagor or owner, no liability existed, *** [the insurer] shall, to the extent of such payment, be thereupon legally subrogated to all the rights” of the payee “to the extent of the payment.” In the instant case, no payment was made to any mortgagor or owner; had Great-West collected the amount of its debt from its insurer, it would have had to relinquish its mortgage note and its right to foreclosure. (LeDoux v. Dettmering (1942), 316 Ill. App. 98, 43 N.E.2d 862.) Instead, it retained the mortgage note, foreclosed on the property, and in that manner satisfied its debt. Contrary to its assertion that it “recovered nothing,” Great-West has recovered its debt by exchanging the mortgage note for title to the property.

Had Great-West effected repairs to the building in order to restore the building to the value of the mortgage debt, the trust agreement granted explicit permission to add the cost of such repairs to the amount of the mortgage debt. Great-West’s bidding in the note at the sale is evidence that the fire damage had not reduced the value of the property below that evidenced by the mortgage note. In any event, Great-West never raised this issue, and a court of review is not required to search the record to find a reason for reversing the judgment of the trial court. Thanopoulos v. Pickens (1980), 87 Ill. App. 3d 906, 409 N.E.2d 477.

Instead of the form of the mortgage insurance (i.e., a loss-payable clause or an independent policy) being determinative, the pivotal fact on which the limit of recovery depends is the sequence of the two events, foreclosure sale and loss. The only cases upholding a mortgagee’s right to recover the full amount of the loss deal with situations in which the foreclosure sale was complete; the mere institution of foreclosure proceedings, including the issuance of the foreclosure decree, does not effect a change in the mortgagee’s interest. 5A Appleman, Insurance Law & Practice sec. 3403, at 299-304 (1970).

If the mortgagee purchases the property at a foreclosure sale before the fire loss, “the amount bid at the foreclosure was for the property in an undamaged condition and the mortgagee required the insurance proceeds to restore the property to the condition it was in at the time of the foreclosure. *** [A] mortgagee who has foreclosed has a type of ownership of which he may be divested until the period of redemption has expired. *** Why should the mortgagee, so long as its ownership may be only temporary, be required to procure an owner’s policy in order to protect itself adequately?” (City of Chicago v. Maynur (1975), 28 Ill. App. 3d 751, 755, 329 N.E.2d 312, 315.) In Trustees of Schools v. St. Paul Fire & Marine Insurance Co. (1920), 296 Ill. 99, 129 N.E. 567, the Illinois Supreme Court upheld the right of a mortgagee to recover the full loss suffered from a fire occurring after a foreclosure sale at which the mortgagee purchased the property. The court reasoned that because a foreclosure was not complete until the redemption period had passed, the mortgagee continued to have an insurable interest as mortgagee. Maynur further explained that “the mortgagee’s acquisition of the property through foreclosure results in an increase in the mortgagee’s interest rather than a change of ownership.” 28 Ill. App. 3d 751, 754, 329 N.E.2d 312, 315.

On the other hand, when the loss precedes the foreclosure sale,

“the mortgagee has an election as to how he may satisfy the mortgage indebtedness by two different means, he may look to the insurance company for payment as mortgagee *** and may recover, up to the limits of the policy, the full amount of the mortgage debt at the time of the loss. In this event he would have no additional recourse against the mortgagor for the reason that his debt has been fully satisfied.
The second alternative available to the mortgagee is satisfaction of the mortgage debt by foreclosure. If the mortgagee elects to pursue this latter option, and the foreclosure sale does not bring the full amount of the mortgage debt at the time of the loss, he may recover the balance due under the insurance policy as owner.
* * *
[A]t the time of, and immediately after the fire loss, plaintiff-mortgagee is the creditor of the owner, the plaintiff-mortgagee having had security for that debt in the form of a mortgage on the property and a claim for the loss on the insurance policy. But in no event is the plaintiff-mortgagee due to collect more than the debt secured. *** When a mortgagee forecloses and at the sale he collects the full amount of his debt, he is no longer a creditor as his debt is paid. [This] rationale *** appears to be in the mainstream of judicial thought throughout the country.” Nationwide Mutual Fire Insurance Co. v. Wilborn (1973), 291 Ala. 193, 198, 279 So. 2d 460, 463-64, citing 5A Appleman, Insurance Law & Practice sec. 3403, at 301-03 (1970); accord, White v. United States Fidelity & Guaranty Co. (1974), 21 Ill. App. 3d 588, 316 N.E.2d 131.

Contrary to Great-West’s assertion, General Accident is not “rewriting the policy” by collecting premiums to assure one level of coverage and later, after a loss, interpreting the policy so as to limit its liability to a far lesser amount. By adding a further endorsement to the policy after the foreclosure sale, memorializing its change of status from mortgagee to owner, Great-West confirmed General Accident’s contention that Great-West’s status at all times prior to the sale, including the date of the fire, was that of mortgagee and its recovery limited to the extent of the mortgage debt.

Neither has General Accident “reinterpreted” the language of the policy. Rather, it is Great-West who is trying to reinterpret the word “mortgagee” by claiming that a “foreclosing mortgagee” prior to the foreclosure sale has obtained a status different from that of “mortgagee.” We disagree. Even Home Insurance Co. v. Mendenhall (1897), 164 Ill. 458, 45 N.E. 1078, the case cited by Great-West in support of its argument that an “expectation of ownership” constitutes an interest insurable to the limit of the loss, is inapposite. The expectation of ownership present in Mendenhall was the expectation of the issuance of a deed following a master’s sale; the 20-day statutorily decreed delay was identical in effect to the statutory period of redemption present in Maynur. As in Mendenhall and Maynur, had the fire at Institute Place occurred after the sale, the $400,000 limit of coverage in the endorsement would have been the maximum recovery available to Great-West instead of the amount of the mortgage debt.

What, then, is the proper characterization of the $325,716.65 spent by Great-West to repair the damage to the property? In effect, that expenditure constituted an advance of additional money by Great-West, the mortgagee, to the title holder. “[T]he words ‘as its interest shall appear’ have reference to the amount which may be due the mortgagee on the mortgage debt which is originally brought to the attention of the insurer. It was not intended to include additional claims, but was intended to provide for a diminution of the interest of the mortgagee by the reduction, by payment or otherwise, of the amount of the debt.” (Attleborough Savings Bank v. Security Insurance Co. (1897), 168 Mass. 147, 149, 46 N.E. 390, 391.) Great-West had not yet purchased the property at the sale, so it cannot benefit from Maynur’s conclusion that the purchase increases the mortgagee’s interest.

The only way that the additional amount could have been included in Great-West’s interest in the property (AIMA) at the time of the fire is if the trust deed allowed the mortgagee to spend any amount of money on the property and then simply add it to the promissory note, thereby unilaterally increasing by any amount the mortgage debt due. Great-West does not attempt to construe the trust deed in such a manner, for it is obvious that the conclusion would be unsupportable.

In light of the foregoing analysis, it is clear to us that no question of fact exists concerning the proper limit of recovery available to Great-West, and the trial court did not err in entering summary judgment in favor of General Accident.

II

The second question raised in this appeal concerns the propriety of the trial court’s awarding Great-West $12,373.55 in addition to the calculated deficiency of $3,045.11. General Accident argues that because the sheriff’s report of sale and distribution did not include the expenditures Great-West made to secure and protect the damaged building after the fire, those sums, totalling $12,373.55, may not be included in the deficiency amount recoverable under the policy. On the other hand, Great-West maintains that those amounts were automatically added to the amount of the mortgage debt under the provisions of the trust deed quoted earlier. We agree with Great-West.

The $12,373.55 expenditure made after the fire was authorized by the language of the trust deed specifically providing that such “moneys advanced by the *** holders of the note shall be so much additional indebtedness secured *** [by the mortgage note] and shall become immediately due and payable without notice and with interest thereon.” Consequently, those expenditures were not the type of additional fees and expenses attributable to the foreclosure sale and therefore to be included in the sheriff’s report, but should have been added to the amount of remaining indebtedness on the note itself, and that total entered on the sheriff’s report as the remaining amount due on the note.

We find that the trial court’s recalculation of the deficiency due Great-West under the insurance policy was correct and therefore affirm the entry of judgment in favor of Great-West in the amount of $15,418.66.

Affirmed.

ROMITI, RJ., and JIGANTI, J., concur.


author: PRESIDING JUSTICE WILSON

text:
    JOHN L. NORDHEM et al., Plaintiffs-Appellees, v. HARRY’S CAFE, INC., Defendant-Appellant—(Harold A. Reskin, et al., Defendants).
    First District (5th Division)
    No. 82—557
    Opinion filed July 22, 1983.
    Pedersen & Houpt, of Chicago (Arthur M. Holtzman and Arthur Sternberg, of counsel), for appellant.
    Stephen B. Diamond and S. Keith Collins, both of Mangum, Beeler, Schad & Diamond, P.C., of Chicago, for appellees.
   PRESIDING JUSTICE WILSON

delivered the opinion of the court:

Plaintiffs, John and William Nordhem, each obtained judgments by confession in the amounts of $21,250 and $22,681.24, respectively, on individual promissory notes executed by defendants, Harold Re-skin, Robert Liston, Thomas Dubois and Thomas Gorsuch, individually and as shareholders of Harry’s Cafe, Inc. (Harry’s Cafe) in consideration for the purchase of plaintiffs’ stock in Harry’s Cafe. Defendant Harry’s Cafe appeals from an order of the circuit court granting plaintiffs’ motions for confirmation of judgments and denying its motion to open judgment and file its verified answer and counterclaim pursuant to Supreme Court Rule 276 (Rule 276). (87 Ill. 2d R. 276.) For the reasons that follow, we reverse and remand with instructions.

Pursuant to written contracts and resolutions of stockholders and directors, plaintiffs managed Harry’s Cafe from November 1977 through December 20, 1979. During that time, repeated disputes arose among plaintiffs and the other four stockholders regarding the operation of the restaurant. As a result of this discord, in 1979, two of the stockholders, Harold Reskin and Robert Liston, filed a complaint in Du Page County (Du Page action) against all parties in the present case, seeking injunctive and declaratory relief related to certain corporate and stockholder disputes. On March 5, 1980, while the Du Page action was still pending, plaintiffs agreed to sell their stock in Harry’s Cafe to Thomas Gorsuch, one of the stockholders, for $80,000. On November 24, 1980, the stock purchase agreement was amended to substitute Harry’s Cafe as the purchaser. Pursuant to the agreement, $20,000 was paid to each plaintiff as a downpayment and cognovite notes, due December 24, 1980, were issued for the balance.

The record reveals that instead of making the final stock purchase payments on the due date, Harry's Cafe filed a motion in the Du Page action requesting leave to file a counterclaim against plaintiffs (codefendants in the Du Page action), seeking, inter alia, a declaratory judgment regarding the existence of certain rights of setoff and/or recoupment by Harry’s Cafe against plaintiffs with respect to the outstanding promissory notes. Before the motion was set for hearing, the Du Page action was dismissed with prejudice by stipulation of the parties. As a result, the counterclaim was never filed.

On February 25, 1981, plaintiffs filed individual complaints for confession of judgment on the promissory notes, which judgments were entered on March 4, 1981 (J. Nordhem), and June 4, 1981 (W. Nordhem). On July 28, 1981, plaintiffs moved for a confirmation of the judgments, stating that no motion to open the judgments had been filed by defendants. However, on that same day, defendants also filed their motion to open judgment and requested leave to file a counterclaim and stay proceedings on the judgments. Defendants’ motion was accompanied by their verified answer and counterclaim as well as an affidavit in support of the motion, signed by Thomas Dubois, president of Harry’s Cafe.

Subsequently, at a hearing on the motions, plaintiffs argued that the judgments should be confirmed because defendants failed to present a meritorious defense as required by Rule 276 and, further, that the counterclaim was barred because: (1) defendants had knowledge of the allegations therein prior to execution of the promissory notes; (2) the stock purchase agreement was intended to be a settlement of all disputes between the parties; and (3) the allegations of the counterclaim were previously dismissed with prejudice in the Du Page action and, thus, were barred by res judicata.

In response, defendants argued that: (1) knowledge of plaintiffs’ wrongful acts prior to execution of the notes may preclude raising a defense to payment, but does not preclude a counterclaim for setoff; (2) the stock purchase agreement was not intended as a settlement; and (3) the counterclaim prepared for the Du Page action was never filed and, thus, the current counterclaim was not barred by res judicata.

After taking the matter under advisement, the court granted plaintiffs’ motion to confirm and denied defendants’ motion to open the confession of judgment and for leave to file a counterclaim. In response to defendants’ subsequent motion to reconsider, the trial court modified its findings, but affirmed its decision. Defendant’s timely appeal followed.

Opinion

Rule 276, which provides for opening of judgments by confession, states in pertinent part:

“A motion to open a judgment by confession shall be supported by affidavit in the manner provided by Rule 191 for summary judgments, and shall be accompanied by a verified answer which defendant proposes to file. If the motion and affidavit disclose a prima facie defense on the merits to the whole or a part of the plaintiff’s claim, the court shall set the motion for hearing. *** If a defendant files a motion supported by affidavit which does not disclose a defense to the merits but discloses a counterclaim against the plaintiff, and defendant has been diligent in presenting his motion, the trial court may permit the filing of the counterclaim and to the extent justice requires may stay proceedings on the judgment by confession until the counterclaim is disposed of.”

As the foregoing indicates, the filing of a Rule 276 counterclaim is a two-step process: (1) the procedural prerequisites of affidavit and diligence must be satisfied; then (2) the court, in its discretion, may permit the filing. In the case at bar, we find that defendants have satisfied both procedural prerequisites. First, the affidavit filed in support of defendants’ motion to open judgment cited pertinent dates in support of defendants’ diligence and alleged a setoff to plaintiffs’ claim, thereby satisfying the requirements of particularity set forth in Supreme Court Rule 191 (Rule 191). (87 Ill. 2d R. 191.) Second, although plaintiffs attempt to argue lack of diligence in their briefs, the record clearly shows that this was not an issue in the trial court, and, thus, cannot now be raised on appeal. (Moehle v. Chrysler Motors Corp. (1982), 93 Ill. 2d 299, 303.) Therefore, the only issue before this court is whether the trial court’s denial of defendants’ motion for leave to file its counterclaim was an abuse of discretion.

In the pending case, the trial court entered two orders with accompanying opinions, the second order being in response to defendant’s motion to reconsider. While the second order affirmed the previous one, it vacated one of the original findings and cited additional case law support. In making our determination as to whether the evidence supports the trial court’s judgment, we will analyze the rationale expressed in the two opinions in conjunction with the record as a whole.

In its first opinion, the trial court denied defendants’ motion on the grounds that: (1) “[Requirements to vacate or open, (one of which is a non-conclusory meritorious defense) are not met under the standard of Passanti [sic] v. Callier”; (2) requirements of Rule 191 are not met; and (3) defendants’ counterclaim is barred by the dismissal with prejudice of the identical counterclaim filed in the Du Page action. After careful review, we find none of these grounds to be sufficiently supported by the evidence.

First, Passanante v. Callier (1978), 61 Ill. App. 3d 360, 377 N.E.2d 1304, is factually distinguishable from the case at bar on a very critical point. In Passanante, defendant alleged a meritorious defense. In our case, defendants admit to their liability and allege a set-off in the manner of a counterclaim. Because Rule 276 expressly treats meritorious defenses and counterclaims differently (Kuh v. Williams (1973), 13 Ill. App. 3d 588, 591-92, 301 N.E.2d 151), the provisions of Rule 276 which were applicable in Passanante are not applicable in the pending case. Second, as previously discussed, we find that the specificity requirement of Rule 191 has been met. Third, because the res judicata finding was subsequently vacated in the trial court’s second opinion, no further discussion is necessary.

In its second opinion, the court concurred with plaintiffs that: (1) the principles in Kuh v. Williams (1973), 13 Ill. App. 3d 588, 301 N.E.2d 151, relied upon by defendants, do not apply in this case because the decision in Kuh was influenced by the facts that there was a defense and that the statute of limitations would have barred a separate cause of action on those allegations set forth in defendant’s counterclaim; and (2) Malone v. Marks (1977), 55 Ill. App. 3d 846, 371 N.E.2d 204, is persuasive in its holding that broad general statements not supported by any facts in the record are not sufficient to support the filing of a Rule 276 counterclaim. We do not find that the facts in the case at bar support the trial court’s application of Kuh and Malone.

In Kuh v. Williams (1973), 13 Ill. App. 3d 588, 301 N.E.2d 151, defendants filed a motion pursuant to Rule 276 to open plaintiff’s judgment by confession, alleging good and meritorious defenses as well as a setoff by means of a counterclaim. In response, plaintiff argued, inter alia, that defendants had not been diligent; had no meritorious defense; and their counterclaim was barred by the statute of limitations. In holding that the trial court had abused its discretion in refusing to permit the counterclaim to be filed, the court stated, “[E]ven if there had been no abuse of discretion in regard to the filing of the counterclaim, defendants diligently raised two meritorious defenses, and, once raised, the court had no discretionary authority, but was required to allow the motion to open the judgment and proceed to trial.” (13 Ill. App. 3d 588, 593-94.) The language of the court clearly indicates that the counterclaim and the defenses were analyzed independently and that the ruling on one was in no way influenced by the ruling on the other. In addition, we concur with the rationale expressed in Kuh that when a Rule 276 counterclaim is “proper” and defendant has been diligent, leave should be granted to file it. In the pending case, defendant has satisfied both criteria.

Further, we find Malone v. Marks (1977), 55 Ill. App. 3d 846, 371 N.E.2d 204, factually distinguishable from the case at bar. In Malone, after the court found that defendant’s Rule 276 motion and its supporting affidavit did not state a meritorious defense, it reviewed defendant’s counterclaim and found that it contained the identical “broad general statements” alleged in the defense, none of which were supported by the record. As a result, the court affirmed the denial of defendant’s motion to open judgment. In contrast to Malone, the allegations contained in defendants’ counterclaim in the pending case are sufficiently detailed and adequately supported by the record.

Regarding plaintiffs’ argument that the stock purchase agreement was intended as a settlement agreement regarding all allegations set forth in the counterclaim, it is our opinion that this argument would be more appropriately presented at the hearing on defendant’s counterclaim, not at the hearing on a motion for leave to file the counterclaim. Therefore, we purposely refrain from addressing the merits of that particular allegation.

In conclusion, based upon the evidence presented in the record and in accord with the legal axiom that pleadings should be liberally construed so that all controversies may be completely and finally determined according to the substantive rights of all parties (Olin Mathieson Chemical Corp. v. J. J. Wuellner & Sons, Inc. (1966), 72 Ill. App. 2d 488, 492-93, 218 N.E.2d 823), we hold that the trial court abused its discretion in denying defendants’ motion for leave to file a counterclaim. Therefore, we reverse the trial court’s judgment and remand the cause with instructions to permit the filing of a counterclaim and to stay proceedings on the judgments by confession until the counterclaim is disposed of on its merits.

Reversed and remanded with instructions.

SULLIVAN and O’CONNOR, JJ., concur.

      Pursuant to plaintiffs’ oral motion, the cause of action against defendants, individually, was dismissed without prejudice and with leave to reinstate.


author: JUSTICE ALLOY

text:
    FRANCIS R. MAERE et al., Plaintiffs-Appellants, v. CYRUS CHURCHILL et al., Defendants-Appellees.
    Third District
    No. 82—245
    Opinion filed July 27, 1983.

      Stephen W. Newport, of Newport & Buzzell, of Davenport, Iowa, for appellants.
    Stuart R. Lefstein and Linda E. Frischmeyer, both of Katz, McAndrews, Durkee, Balch & Lefstein, of Rock Island, for appellees.
   JUSTICE ALLOY

delivered the opinion of the court:

The plaintiffs Francis Maere and Joann Maere, husband and wife, appeal from judgments of the circuit court in their action against defendants Cyrus Churchill and Daniel Churchill, individually and as partners in the law firm of Churchill & Churchill. The Maere’s action was brought against the Churchills to recover damages caused by an alleged breach of an oral contract to provide legal services and by alleged negligence in the performance of services to the Maeres in a real estate purchase transaction. The circuit court, on defense motion to strike, ruled that the Maeres could not recover, in this action, for damages resulting in mental anguish, emotional distress, disappointment and inconvenience. From the striking of these alleged damages, the Maeres now appeal, arguing that such damages are recoverable. The Maeres also appeal from the decision of the circuit court disallowing their filing of a late jury demand. On the merits, the court denied the Maeres’ motion for partial summary judgment, on the question of liability, and granted the Churchills’ motion for summary judgment against the Maeres. From both of these rulings, the Maeres now appeal.

The record reveals the following undisputed pertinent facts before the court in conjunction with the parties’ motion for summary judgment. On April 24, 1977, the Maeres entered into a real estate purchase contract for Lots 20A and 21A in “Arcadia,” a subdivision of Moline, Illinois. The sellers under the contract were Roderick and Marlene Saelens. Subsequent to the execution of the purchase contract, the Maeres entered into an oral agreement with Cyrus Churchill, of the law firm of Churchill & Churchill, to retain the firm for the purpose of reviewing the abstracts of title and rendering a certificate of title. They were retained to represent the Maeres in connection with the closing of the real estate transaction, effecting a transfer of the property from the sellers, in accordance with the contract terms. Defendant Cyrus Churchill examined the abstracts of title on the properties, and the transfer was made by warranty deed, dated July 14, 1977. The certificate of title was issued by the defendants on September 24, 1977, indicating that the Maeres had merchantable title, in fee simple, to Lots 20A and 21A.

In the fall of 1978, almost a year later, the Maeres proceeded with their plans to build on the lots in question, receiving bids from various subcontractors. In the course of their progress towards construction, the Maeres obtained information from a variety of sources concerning certain restrictive covenants pertaining to Lots 20A and 21A. These covenants, contained in the plat for Arcadia Subdivision, provided in substance that the “A” lots of the subdivision were to be considered a part of the lots of like number and were to be conveyed with such like numbered lots. The plat also restricted improvements on the lots, prohibiting any buildings on “A” lots. Concerned about possible obstacles to their planned construction, the Maeres contacted the Churchill firm to discuss the problem. This was in January 1979, and at that time, Cyrus Churchill informed Mr. Maere that if they, the Maeres, would come to his office, a policy of title insurance could be obtained to take care of any problem that might exist. The Maeres did not follow up the offer of title insurance, and instead contacted other counsel in regard to their problems.

In March or April, 1979, independent counsel for the Maeres contacted the Churchills about the problems, explaining the nature of the restrictive covenants and requesting that the Churchills cure the difficulties arising due to their existence. The Churchills, in response, obtained a commitment from an agent for Chicago Title Insurance, indicating that the restrictions were insurable and that his company would insure them. The Churchills’ position, at that time, was that the restrictions were void, as contrary to public policy, and were not a defect in title. However, in an attempt to settle the matter and put the Maeres’ concerns to rest, they agreed to obtain the title insurance. In any event, on July 23, 1979, the Churchills paid for and obtained a formal commitment for title insurance, which was in the amount of the purchase price of the lots, or $10,500. By endorsement, Chicago Title specifically agreed to insure over the alleged defects, being the restrictive covenants above noted. The policy, as written, was not acceptable to the Maeres.

In September 1979, without having resolved the question of title, or the dispute with the Churchills, the Maeres applied for a construction loan, with Union Federal Savings and Loan Association, for the purpose of obtaining financing for construction of improvements on Lots 20A and 21A. The loan application was in the amount of $40,500, at 10.6% interest. They received a loan commitment from Union Federal for those figures. In processing, an attorney for Union Federal examined the abstracts of title for the lots in question, and he issued a preliminary report on title, dated October 22, 1979, in which the restrictive covenants above noted were set forth as encumbrances and title defects. Shortly thereafter, Union Federal informed the Maeres that those defects would have to be rectified before finalizing the construction loan. The Churchills were informed of these developments promptly, and on November 5, 1979, they tendered to Union Federal a title insurance policy, in the amount of the purchase price ($10,500), specifically insuring against the defects complained of, with an issue date of July 23, 1979. Union Federal, for purposes of finalizing the construction loan, however, required title insurance sufficient to cover the improvements which the plaintiffs intended to make on the properties. The issuing agent for the company had also agreed that such additional insurance would be available, upon request and payment of the premium. The record indicates that the attorney for Union Federal considered the form of the policy adequate, and he recommended that the loan application be processed, subject to receiving the additional insurance to protect the mortgage. The Maeres also understood that if they had paid the additional premium (later determined to be $300), their loan would have been approved and they could have proceeded with construction. However, neither' the Maeres, nor the Churchills, would pay the additional premium to cover value of improvements, and on or about November 22, 1979, the loan commitment was lost. That loan application with Union Federal was the only such application made by the Maeres in connection with their planned construction on Lots 20A and 21A.

Thereafter, unsuccessful negotiations continued between counsel for the Maeres and the Churchills in an attempt to resolve the matter. Finally, in July 1980, the Maeres filed their original complaint, without a jury demand. A first amended complaint was filed in August 1980, in which the Maeres asserted claims against the Churchills based upon breach of contract and negligence. Their claims sought compensatory damages and damages based upon their “great mental anguish, emotional distress, disappointment and inconvenience.” The circuit court, pursuant to a defense motion to strike, found that the mental anguish damages were not recoverable in the action, and it ordered those portions of the amended complaint stricken.

The Maeres’ third amended complaint was filed in March 1981, and discovery in the action proceeded. The case was set for jury trial, pursuant to the codefendants’ (Saelens, the sellers) jury demand. Shortly before the scheduled trial date, the Saelens’ attorney indicated to the Maeres’ attorney that his clients were going to withdraw their jury demand. That same day, January 13, 1982, the Maeres filed a motion for leave to file a late jury demand. The following day the Saelens filed a withdrawal of their jury demand. The Churchills opposed any late jury demand by plaintiffs Maeres, and a hearing on that motion was held.

Both parties also filed motions for summary judgment, supported by deposition, affidavits and briefs. The Maeres sought entry of partial summary judgment, on the issue of liability, against the Churchills, and the Churchills sought summary judgment as against the Maeres. The court thereafter entered orders. It denied the request for the filing of a late jury demand, and it also granted the Churchills’ motion for summary judgment. The Maeres’ motion for summary judgment was denied. This appeal followed, with the Maeres contending that the court erred (1) in striking the damages for mental anguish, (2) in denying the request for filing of a late jury demand, (3) in denying their motion for partial summary judgment, and (4) in granting the Churchills’ summary judgment. We turn then to the issues, and any disputed factual matters will be brought forth with our analysis, as pertinent.

The first issue raised is whether the trial court erred in striking the plaintiffs’ damage claims for mental anguish and emotional distress, under both the contract and negligence theories. We find no error. The general rule is that

“damages for mental anguish are limited to cases in which there has been a personal physical injury or where the defendant wilfully, wantonly, recklessly, or intentionally caused the mental anguish. Thus, recovery for mental anguish is not, as a general rule, allowed in actions for breach of contract; the courts evidently believe that the mental suffering which accompanies a breach of contract is too remote for compensation.” (22 Am. Jur. 2d Damages sec. 195 (1965).)

In the contract area, damages for breach will not be given as compensation for mental suffering, except where the breach was wanton or reckless and caused bodily harm, or where the defendant had reason to know, when the contract was made, that its breach would cause mental suffering for reasons other than mere pecuniary loss. (Restatement of Contracts sec. 341, at 559 (1932).) As more succinctly stated in the Restatement (Second) of Contracts sec. 353, at 149 (1981):

“Recovery for emotional disturbance will be excluded unless the breach also caused bodily harm or the contract or the breach is of such a kind that serious emotional disturbance was a particularly likely result.” (See also Annot., 61 A.L.R.3d 922 (1975); 38 Am. Jur. 2d Fright, Shock, and Mental Disturbance sec. 33 (1968).)

The plaintiffs’ complaint herein does not allege that the defendants’ breach of contract was intentional, reckless or wanton, nor are physical injuries alleged from the said breach. Furthermore, the contract at issue is for examination of abstracts of title to real estate and related services in connection with the real estate transaction. Even though real estate is unique and the attorney-client relationship is a fiduciary one, we are unable to conclude that serious emotional disturbance is a particularly likely result of an attorney’s breach of contract in his examination of title to real estate. At least, on the allegations contained in plaintiffs’ amended complaint, we conclude that such emotional disturbance was not set forth as a particularly likely result of any breach by defendants of their contract. The court did not err in striking allegations of mental anguish and emotional distress from the contract count of the first amended complaint.

Nor does the negligence count of the first amended complaint set forth a basis for recovery of damages for mental anguish and emotional distress. The long-standing rule in Illinois is that stated in Braun v. Craven (1898), 175 Ill. 401, 51 N.E. 657, barring recovery, under a negligence theory, for emotional distress where there has been no accompanying physical impact. (See also Harkcom v. East Texas Motor Freight Lines, Inc. (1982), 104 Ill. App. 3d 780, 433 N.E.2d 291.) This doctrine, termed the impact rule, has been modified recently by the Illinois Supreme Court in Rickey v. Chicago Transit Authority (1983), 98 Ill. 2d 546. There, the court adopted what has been described as the zone-of-physical-danger rule.

“Basically, under it a bystander who is in a zone of physical danger and who, because of the defendant’s negligence and as a consequence of it, has reasonable fear for his own safety has a right of action for physical injury or illness resulting from emotional distress.” 98 Ill. 2d 546, 555.

This change in the law is not broad enough, however, to permit recovery to plaintiff herein, where the emotional distress is premised solely upon alleged negligence of the defendants in performing legal work for the plaintiffs. The trial court properly struck those portions of the complaint wherein plaintiffs sought recovery for alleged emotional distress.

The next issue on appeal is whether the trial court correctly entered summary judgment in favor of the defendants Churchill. The parties concede that the basis for summary judgment in defendants’ favor was the court’s conclusion that any damages suffered by the Maeres were the result of their own inaction, and not the result of the Churchills’ breach of contract or negligence. Pertinent hereto is the evidence in the record that the Maeres were offered, but refused, title insurance covering the alleged defects in title. The Maeres contend that the damages they suffered were not the result of their inaction, but the result of the failure of the Churchills to satisfactorily fulfill their contract. The Churchills argue that the trial court was correct in its conclusion as to the absence of damages caused by them, and contend that even assuming liability, arguendo, the court properly gave judgment in their favor because of the lack of any damages specifically resulting from their conduct.

The defense places great emphasis upon their offer, and ultimate tender, of a title insurance policy covering the objected-to restrictions, and upon their arranging for further insurance, to cover the costs of improvements, provided such was requested and paid for by the Maeres. It is not disputed that Cyrus Churchill made a general offer to take care of the problems, in January 1979, when they first were brought to his attention, through the purchase of title insurance. Nor is it disputed that the Churchills offered a title policy, specifically insuring against the defects complained of by the Maeres and Union Federal, in April 1979, with the amount that of the purchase price. A commitment for such a policy was later obtained and sent to the Maeres’ counsel in August. There is no dispute that the title company was willing to insure the improvements on the lots, under that policy, provided that a request for such was made and that a premium was paid. Such a policy, along with the availability of further insurance for the improvements, was available to the Maeres in the fall of 1979, prior to the time the loan was lost. The record also clearly establishes that the attorney for Union Federal, the lender, considered the form of the policy offered acceptable, and he recommended that the loan be processed, subject to receiving the additional insurance to protect the mortgage. The Maeres chose not to accept the policy offered, nor to purchase the additional insurance coverage for the improvements. They felt such additional premium cost, covering the improvements, was not their obligation, but that of the Churchills.

Illinois has long recognized the applicability, in questions of damages, of the doctrine of avoidable consequences, which prevents a party from recovering damages for consequences which that party could reasonably have avoided. This doctrine has been set forth on a number of occasions by the Illinois Supreme Court.

“Sutherland, in his work on Damages, says (sec. 88): ‘The law imposes upon a party injured from another’s breach of contract or tort the active duty of making reasonable exertions to render the injury as light as possible. If by his negligence or willfulness he allows the damages to be unnecessarily enhanced, the increased loss, —that which was avoidable by the performance of his duty, —falls upon him. This is a practical duty under a great variety of circumstances, and as the damages which are suffered by a failure to perform it are not recoverable, it is a duty of great importance. ***’ ” (Cedar Rapids & Iowa City Ry. & Light Co. v. Sprague Electric Co. (1917), 280 Ill. 386, 391.)
“ ‘The principle of ‘ “avoidable consequences” ’ upon which the reduction of damages rule is grounded is not confined entirely to the narrow limits suggested by the appellant. It finds its application in virtually every type of case in which the recovery of a money judgment or award is authorized. (Sedgwick on Damages, 9th ed., sec. 204, p. 390; 15 Am. Jur., sec. 27, p. 420; 25 C.J.S., Damages, sec. 33, p. 499.) it addresses itself to the equity of the law that a plaintiff should not recover for those consequences of defendant’s act which were readily avoidable by the plaintiff. Sutherland on Damages, (1844) vol. 1, p. 226, et seq.’ ” (Kelly v. Chicago Park District (1951), 409 Ill. 91, 98, 98 N.E.2d 738, quoting with approval from State ex rel. Dresskell (Fla. 1943), 13 So. 2d 707.)

Illinois appellate courts have also discussed the doctrine and applied it in a variety of cases:

“The general rule is that it is the duty of a party injured by a breach of contract or tort to make a reasonable effort to avoid damages therefrom, and such damages as might by reasonable diligence on his part have been avoided are not to be regarded as the natural and probable result of plaintiff’s acts, and therefore there can be no recovery for damages which might have been avoided by reasonable effort on the part of the person injured.” (Nelson v. Buick Motor Co. (1913), 183 Ill. App. 323, 325 (breach of contract). See also Panteles v. Arsht (1923), 227 Ill. App. 488, 491; 22 Am. Jur. 2d Damages sec. 30 (1965); Restatement (Second) of Torts sec. 918 (1979).)

We find the rule of “avoidable consequences” to have application in the instant case, for the evidence before the court establishes that the Maeres could have obtained the construction loan, and thereby proceeded with construction as planned, in November 1979, provided (1) that they had accepted the defendants’ tender of the title policy, in the amount of the purchase price and specifically covering the alleged defects, and (2) that they had requested the available additional coverage for the improvements and been willing to pay the additional premium for the coverage. There is no dispute that the additional premium was a small amount, later set at $300, which was well within the financial capabilities of the Maeres at that time. Mrs. Maere admitted in her deposition testimony that had they agreed to pay the additional premium for the improvements coverage, they would have received the loan from Union Federal. Corroboration for this is also found in the statement, by affidavit, from Union Federal’s attorney. Application of the rule of avoidable consequences, in these circumstances results in a conclusion that the loss of the construction loan, and further damages resulting from and occurring after such loss, could have been avoided, if the Maeres had agreed to accept the title insurance and had agreed to pay the additional premium. The amount of the additional premium was not great, especially in light of the benefit to them of securing the loan on the favorable terms available at that time. Having failed to avail themselves of a clear opportunity, arranged by the defendants, to minimize their damages, they are barred from seeking damages as against the defendants, which could have been avoided by such action. Thus, any damages resulting from the loss of the construction loan are not recoverable by the Maeres, and this includes the asserted costs of financing, at a higher rate of interest, for a similar loan at a later date. It also includes damages based upon the value of the property to them, with and without the restrictions, for the restrictions would have had no effect upon their intended plans to build, had they arranged for title insurance in November 1979, when it was available.

The Maeres assert other damages as well as the above, however. They seek recovery for lost profits which they assert would have been theirs from the construction project. They assert that the project would have been completed by June of 1979, if the defendants had not breached their contract and been negligent in the performance of the services they rendered. Plaintiffs also assert damages resulting from the delay in obtaining the construction loan, which delay is alleged to have been caused by the defendants Churchills’ failure to rectify their mistakes. The facts in the record, however, indicate that no loan application was made by the Maeres until September 1979, and such application was accepted and approved, with the conditions above stated concerning title insurance. The decision as to when to apply for the construction loan, whether January or September, was the plaintiffs’ decision to make, and they cannot charge the defendant for damages resulting from their delay in making application for the loan. Additionally, it is instructive to examine the position the plaintiffs would have been in had the Churchills done what the plaintiffs assert should have been done.

The Maeres contend that had the Churchills brought the restrictions to their attention before closing, and it is the failure to do so which forms the basis for the breach of contract and negligence actions, then, in that event the sellers would have been required to cure the defects. However, under the terms of the contract for sale, which contract had been preferred by the Maeres, the sellers had an option with respect to furnishing satisfactory evidence of title. Under paragraph 1 of that contract, the sellers could have provided a policy of title insurance, in the amount of the purchase price, in fulfillment of their obligation to furnish purchasers with satisfactory evidence of title. Since the contract would have to be construed against the Maeres, as makers, under accepted contract construction rules, the sellers would have been able to solve any problem by providing a title policy, in the amount of the purchase price, specifically covering the complained-of defects in title. (See, e.g., Dolan v. Hudson (1968), 83 S.D. 144, 155, 156 N.W.2d 78, 84-85.) Thus, had the Churchills performed as they are alleged to have been required to do, the Maeres would have, in all probability, obtained from the sellers a title policy, in the amount of the purchase price, specifically covering the objected-to restrictive covenants. As already noted, the record indicates that a title policy, covering the problems was offered by Cyrus Churchill in January 1979, when the matter was first brought to his attention, and a policy commitment, in the amount of the purchase price, specifically covering the defects complained of, was obtained and preferred in the spring of 1979 to the Maeres by the Churchills. Having been offered what was essentially the full benefit of performance under the contract, and having refused it, they may not now seek damages for costs incurred by them which would have not been incurred, if they had not refused the Churchills’ offer. The record shows that if the Maeres had accepted the offer of title insurance at the outset of their dispute with the Churchills, they would have put themselves in the same situation and position as they would have been in, had the Churchills done what is alleged to have been required of them under the oral contract for legal services. Therefore, we agree with the trial court that all of the damages alleged to have been incurred by the plaintiffs were avoidable by them through the acceptance of the title insurance policies and arrangements obtained by the Churchills. Since a plaintiff in a legal malpractice action has the burden of proving damages, as an element of his cause of action (Connaughton v. Gertz (1981), 94 Ill. App. 3d 265, 271, 418 N.E.2d 858; Gillion v. Tieman (1980), 86 Ill. App. 3d 147, 150, 407 N.E.2d 1146), and the record herein indicates that the damages allegedly suffered by the plaintiffs Maere could have been avoided by them through acceptance of the proferred title insurance, therefore the plaintiffs failed to establish damages attributable to the defendants, and the defense was entitled to summary judgment on that basis.

Since we have determined that the trial court correctly entered summary judgment in favor of the Churchills, on the basis of the lack of damages, we need not reach the issues as to the denial of the partial summary judgment for plaintiffs, or the denial of the request to permit filing of a late jury demand.

For the reasons stated above, the decision of the circuit court in this matter is affirmed.

Affirmed.

HEIPLE and STOUDER, JJ., concur.


text:
    FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF OTTAWA, Plaintiff-Appellee, v. LAUREL R. CHAPMAN, JR., et al., Defendants—(William F. Roberts et al., Defendants-Appellants).
    Third District
    Nos. 82—580, 82—581 cons.
    Opinion filed July 18, 1983.
    Rehearing denied September 8, 1983.
    Edwin R. McCullough, of Chicago, and Edward J. Kuleck, Jr., of Ottawa, for appellants.
    Thomas B. Cassidy and Cathleen M. Keating, both of Martin, Craig, Chester & Sonnenschein, of Chicago, for appellee.
   JUSTICE ALLOY

delivered the opinion of the court:

This is a consolidated appeal from related mortgage foreclosure actions, wherein decrees of foreclosure were entered and sales held and approved. The defendants are James and Norma Thomas, William and Nancy Roberts, Clifford and Adela Crockett, and Michael and Linda Dunning. They were contract purchasers, under installment contracts for deed from Laurel Chapman, Jr., and they appeal from the denial of their post-judgment motion to vacate the foreclosure decrees and subsequent sales pursuant to those decrees. The plaintiff is First Federal Savings and Loan Association of Ottawa (hereinafter First Federal). Defendant Laurel Chapman, Jr., is not a party to this appeal. The defendants argue that the foreclosure decrees and subsequent sales should be set aside because of First Federal’s failure to comply with the applicable law governing foreclosures.

The records in these cases indicate that the Thomases, Roberts, Crocketts, and Dunnings were purchasers, by installment contracts for deed, of homes from defendant Laurel Chapman, Jr. Chapman had initially purchased the homes through a mortgage loan from First Federal. On January 8 and 9, 1981, First Federal filed two separate verified mortgage complaints against Chapman and these defendants. Apparently as a response to the foreclosure actions against him, Chapman filed for bankruptcy on January 21, 1981.

In one circuit court action, 81 CH 7, in which the Roberts, Crocketts and Dunnings were named defendants, the Roberts and Crocketts filed unverified answers and affirmative defenses. The answers neither admitted nor denied the complaint, but demanded strict proof. The affirmative defenses asked for protection as to them, as contract purchasers, without stating any other facts or bases. These were filed on January 28, 1981. In the other action, 81 CH 6, the defendant Thomases filed a similar answer and affirmative defense on February 4, 1981. The Dunnings later appeared in 81 CH 7, but filed no responsive pleading.

On July 1, 1981, First Federal filed an amended complaint in 81 CH 7. Defendants therein responded with a “Motion to Intervene, Continue for Additional Pleadings, and Consolidation of the Captioned Cases.” An additional 30 days for pleading was requested. On August 14, 1981, the court entered its order allowing intervention, denying consolidation, and ordering additional pleadings to be filed before August 28, with an answer or other responsive pleadings before September 11, 1981. A subsequent order of August 28 granted the defendants an additional 28 days within which to file responsive pleadings to the foreclosure complaint. A similar order was entered in 81 CH 6, the Thomases’ suit, giving them an additional 28 days from August 28 within which to file responsive pleadings. Thereafter, on October 1, 1981, the defendants, in the two cases, filed a “Response to Complaint,” wherein they requested additional time within which to answer the complaints by First Federal. The basis for this request was the fact that they had instituted an action in Federal court against Chapman and First Federal involving the properties and the foreclosure actions. First Federal responded to the defendants “Response” by filing a motion to strike the response. First Federal’s motion to strike was allowed by the court in the two State court actions, with the court giving the defendants until October 21, 1981, to make answer to the foreclosure complaints.

The defendants, on October 21, 1981, filed their motions to strike and dismiss First Federal’s complaints, pursuant to section 48 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 48, now Ill. Rev. Stat. 1981, ch. 110, par. 2—619). These motions to dismiss were denied by the court on November 18, 1981, with the defendants given 14 days within which to answer. No answer or other responsive pleadings were filed by the defendants, as ordered.

Almost two months later, still no answer or responsive pleading having been filed, First Federal sent notices to the attorneys of record for the defendants, advising them that First Federal would appear in the circuit court, on February 17 and 24, respectively in 81 CH 6 and 81 CH 7, and there move for entry of decrees for foreclosure and sale. The notices were sent one week prior to the scheduled hearing dates. First Federal did appear on the dates specified in the notices, and it moved, with supporting affidavits, for foreclosure decrees. The defendants did not appear in either case. The court on February 17 and 24, 1982, respectively, entered decrees of foreclosure on those properties. In its decrees the court specifically found that due notice had been given the defendants, through their attorneys. The court also found that the material allegations of the complaints were true and proven, and it ordered a public sale with required publication notice. The decree of foreclosure also provided, in pertinent part, that the associate judge charged with the sales could adjourn them, from time to time, in his discretion for good cause shown, providing notice of any continuance was given to all parties. The court’s decree exempted any continued sale of the properties from further publication requirements.

Initially, the public sales were set for March 17, 1982, and for March 31, 1982, with due notice given defendants’ attorneys. The requisite newspaper publication, once each week for three consecutive weeks, with the first publication not less than 20 days from the date of sale, was also given. Thereafter, by March 17 court order, the sales were continued until April 14 and 15. Orders for continuance were sent to the defendants’ attorneys. Subsequent thereto, on April 5, 1982, the attorney for the defendants on this appeal filed his appearance on their behalf in the trial court. On April 14, First Federal again moved for a continuance of the sale dates, and the court ordered the sales to be held on June 14 and 15, 1982. Copies of the orders and a notice of the continuance dates were sent to attorneys of record for the defendants.

The defendants then filed, in both cases, another motion, entitled “Motion to Consolidate Cases, Vacate Foreclosure Judgments, or to Stay Proceedings.” The defense attempted therein to convince the court to consolidate the foreclosure actions with another suit they had brought in State court, for damages against First Federal and Chapman. In addition to consolidation, they sought either a vacation of the foreclosure decrees or a stay of further proceedings as to them. This motion, which is before us pursuant to allowance of the defense motion to supplement the record on appeal, was denied by the trial court in its entirety on May 27,1982.

The defense attempts to halt the sales did not cease, for on June 9, 1982, a “Motion to Vacate Order Continuing Foreclosure Sale and Decree of Foreclosure” was filed in both foreclosure actions. The motion alleged that the original decrees of foreclosure were improperly entered, because the defendants’ original answers were never stricken and the court nevertheless entered a decree, based upon affidavit, contrary to the requirement of an evidentiary hearing when facts are controverted. The motion also challenged the notice given to the defendants of the continued sale, as insufficient. It also sought leave to file an amended answer. This motion was not called for hearing prior to the dates set for sale.

The foreclosure sales proceeded as scheduled on June 14 and 15, 1982. A report of sale was duly filed in each case, and the reports were approved and confirmed by the court. The defense followed with an additional motion to vacate, seeking vacation of the original foreclosure decrees and the orders approving the sales. These motions incorporated the previous motions to vacate, which had not been heard, and alleged the sales had been accomplished without the required statutory notice. These motions were denied. From the denial of these motions to vacate, the defendants appeal herein.

The defense, in seeking to reverse the foreclosure decrees entered in February 1982, argues that they were improperly entered since the defendants were entitled to a hearing on their answers and affirmative defenses. Reference is made to the defendants’ initial answers and affirmative defenses, filed in January and February, 1981. As noted in the recitation of facts, these answers were unverified, without supporting affidavit, and neither admitted nor denied the allegations of First Federal’s complaint. Such nondenials are not sufficient to controvert the factual allegations of plaintiff’s foreclosure complaints. (American National Bank & Trust Co. v. Schultz (1977), 54 Ill. App. 3d 488, 490, 369 N.E.2d 903.) As to the affirmative defense raised by each defendant, it amounted to nothing more than a statement that they had an interest in the properties, by virtue of the warranty deeds, and a request that such interest be protected. That they were contract purchasers is not a defense to the foreclosure action. These allegations of affirmative and equitable defense were insufficient to controvert any fact of consequence to the foreclosure action. As styled, the defenses were insufficient and irrelevant. Furthermore, it is apparent from the records that those initial answers were abandoned by the defendants. In 81 CH 7 First Federal filed an amended complaint subsequent to the filing of the defendants’ answers to the original complaint. The defendants’ response therein was to move for additional time within which to plead to the amended complaint. This motion was granted on August 14, 1981. The defendants, in both actions, were then given an additional 28 days within which to file an answer of other responsive pleadings. This order was entered on August 28, 1981, in both cases. The defense response, in both cases, was entitled “Response to Complaint.” When this “Response” was stricken on plaintiff’s motion, the defendants were given additional time to file answers. On October 21, 1981, the defendants filed motions to strike and dismiss the complaints of First Federal. The motions were again denied and the defendants ordered to answer within 14 days of November 18, 1981. No answer or other responsive pleading was made by them. It is clear from the procedural history, which we have set forth laboriously in the recitation of facts, that the brief and insufficient initial answers of the defendants were abandoned by them when proceeding with the various responsive motions. At no time in response to the court’s orders to answer did the defendants assert any reliance on their original answers. They proceeded with other responsive pleadings and without reliance on the original responses, thereby abandoning their initial insufficient pleadings.

The record also indicates that the defendants were all given notice of First Federal’s intent to proceed with hearing on the foreclosure complaints, yet none appeared to contest the same. The court proceeded on affidavits by First Federal to enter foreclosure decrees. This was proper, for where the factual allegations of a foreclosure complaint are not controverted by answer, a supportive affidavit setting forth the facts of the complaint is sufficient evidence and no further evidence is required. (Ill. Rev. Stat. 1981, ch. 95, par. 22b, now Ill. Rev. Stat. 1981, ch. 110, par. 15—201.) The record contradicts the defendants’ suggestion that it was the court and First Federal who failed to follow the applicable procedure in obtaining the foreclosure decrees. The omissions, both relating to pleading and appearance, were those of the defendants and their attorneys. They were given repeated opportunities to file an answer or sufficient defenses, but they failed to do so. They were given notice of the hearing on the complaints, but they failed to appear to contest the same. They were given their opportunity to be heard and did not take it.

The defense makes additional arguments in seeking to have the decrees set aside. It is argued that there was an agreement between the parties in the bankruptcy case to adjudicate the cases in State court and that First Federal breached that agreement. It is further argued that the defendants’ failure to respond by answer was the result of their reliance upon the automatic stay effects of the bankruptcy suit. (See 11 U.S.C. sec. 108 (1976).) As to the latter argument, the defendants’ actions in filing numerous responsive pleadings after the filing of the bankruptcy case belies a suggestion that they were relying upon any stay therein. These foreclosure actions were proceeding with participation from both sides despite the Chapman bankruptcy. Moreover, at no time prior to entry of the decrees did the defendants indicate to the trial court or argue that they were relying upon any stay. Finally, the bankruptcy judge found, as is conceded by both sides herein, that the circuit court actions were not in violation of any automatic stay provisions of the bankruptcy law. Next, addressing the breach of agreement argument, the record before us does not support the existence of the alleged agreement whereby First Federal agreed to vacate the foreclosure decrees so that the defendants could have a hearing on them. The only reference in the records to any agreement is contained in the defendants’ motions of May 24, 1982, which we have by way of supplement to the record on appeal. In those motions, filed in both cases as well as the damage case not before us, it is represented that the agreement in bankruptcy was that the defendants agreed to the court order finding no violation of the stay in exchange for First Federal’s agreement not to take any action in the foreclosure cases for seven days, in order to let the defendants file appropriate motions. No mention is made of any agreement to set aside of decrees which had previously been entered so that the defendant could get an opportunity to contest them. If the terms of the agreement were as set forth in the motion, First Federal complied with its agreement, for the defendants were permitted to file motions seeking to vacate the decrees and consolidate all the cases. The motions were denied, and after that First Federal went ahead with further proceedings, by way of sale. In summary, there is nothing in the record sufficient to uphold the contention of the defense that the decrees should be reversed because of the proceedings involving the Chapman bankruptcy. The foreclosure decrees were properly entered by the circuit court in both the cases. We find no basis to set them aside.

Having determined the validity of the foreclosure decrees, we must next examine the validity of the sales. The defense argues that the sales, made pursuant to the decree and approved by the court, should be reversed because of the failure by First Federal to provide necessary notice. The judgment act (Ill. Rev. Stat. 1981, ch. 77, pars. 14, 15.1, 15.2) provides, in relevant part:

“Sec. 14. No real estate shall be sold by virtue of any judgment, except at public sale, between the hours of 9 in the morning and the setting of the sun of the same day, nor unless the time (specifying the particular hour of day at which the sale shall commence) and the place of holding such sale shall have been previously advertised 3 successive weeks, once in each week, in a newspaper published in the county where the sale shall be made (if there is any newspaper published in such county), and by placing written or printed notices thereof in at least 3 of the most public places in the county where the real estate is situated, specifying the name of the judgment creditor and judgment debtor in the judgment in all of which notices the real estate to be sold shall be described with reasonable certainty, and if there is more than one newspaper published in such county, the judgment creditor or his or her attorney may designate the newspaper in which such notice shall be published.”
“Sec. 15.1. In addition to any other notice required by law, and except as hereinafter provided, the plaintiff in a mortgage foreclosure suit shall give notice to all parties to the suit who have appeared therein and have not theretofore been found by the court to be in default for failure to plead, of any sale to be held pursuant to a judgment of foreclosure. Such notice shall specify the place, date and time of sale and shall be given in the manner provided in the applicable rules of court for service of papers other than process and complaint, not more than 4 weeks nor less than 2 weeks prior to the day of sale.”
“Sec. 15.2. After notice is given as required in Section 15.1, a copy thereof shall be filed in office of the clerk of the court rendering the judgment, together with a certificate of counsel or other proof that notice has been served in compliance with that section. If any sale is held without compliance with this Section and Section 15.1, such sale may be set aside upon motion supported by affidavit to the court rendering the judgment, by any person entitled to notice who was not so notified, within 30 days after such sale. Any subsequent sale shall be subject to the same requirements as the original sale.”

The defendants complain (1) that publication was improper as it specified the March dates, while the sales were held in June, without publication of the June dates; (2) that the required posting of notices at three places in the county was not done; and (3) that they did not receive the required notice of sale for June “not more than 4 weeks nor less than 2 weeks prior to the day of sale.” The record indicates that while the sale was initially scheduled for the March dates, the court specifically provided that the dates could be continued, without additional publication notice, provided the defendants were given notice. The sale dates were continued several times, without further publication but with copies of the continuance orders to the defendants. However, the notice of the June dates was given in April, substantially in excess of the “not more than 4 weeks” requirement section 15.1. No further notice of the June sales was given the defendants. First Federal concedes, as well, that no notices were posted as per section 14, but it argues that such notice was not required. The court denied the defendants’ motion to vacate the sales based upon the deficiencies in required notice, finding that the defendants had actual notice at every stage of the proceedings.

On the basis of our analysis, however, we find the sales must be vacated as a result of the failure to follow required and applicable statutory notice procedures. Section 15.1 of the judgment act, previously set forth, now codified as section 12 — 117 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 12—117), requires that all parties in a foreclosure suit shall be given notice of any sale by the plaintiff “not more than four weeks nor less than 2 weeks prior to the day of sale.” First Federal’s notice of the continued sale dates in June was given in April, more than the maximum 4 weeks before the date of sale. This was a clear violation of section 15.1, entitling the defendants to have the sales set aside under section 15.2. If, as First Federal contends, any actual notice is good enough, then plaintiffs in such actions possess a license to ignore clear and explicit statutory requirements. Especially in this area of foreclosures, strict compliance with the applicable law is the requirement. (Mutual Life Insurance Co. v. Chambers (1980), 88 Ill. App. 3d 952, 957, 410 N.E.2d 962.) Furthermore, we find that section 14 of the judgment act, now section 12—117 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 12—117), has application to foreclosure sales of real estate. Prior to 1979 amendments to the judgment act, the provision read: “No real estate shall be sold by virtue of any execution, except at public vendue ***.” (Ill. Rev. Stat. 1977 ch. 77, par. 14.) This provision had been construed so as to except foreclosure sales, by masters in chancery, from the requirement of statutory notice, inserting instead a requirement of reasonable notice. (Springer v. Law (1900), 185 Ill. 542, 544-45; Chicago Title & Trust Co. v. Tag (1940), 307 Ill. App. 76, 79-82.) In Tag the court distinguished Thornton v. Bogden (1863), 31 Ill. 200, which had held that adjourned sales, pursuant to a trust deed requiring specified notice, required additional notice of the same nature as originally given. It did so on the basis of Springer v. Law’s exception for sales by masters as opposed to execution sales. However, in 1979, the legislature amended section 14, inserting the word “judgment” for “execution,” so that by its plain meaning the section applied to any sale of real estate by virtue of any judgment. It is established that an amendment to an unambiguous statute indicates a purpose to change the law. (People v. Indiana Harbor Belt R.R. Co. (1981), 102 Ill. App. 3d 811, 430 N.E.2d 104.) We find that the change made in the 1979 amendment evidences a legislative intent that section 14 was to apply to all sales of real estate by virtue of a judgment, not merely on execution, and included were sales of real estate pursuant to a judgment of foreclosure. This is the clear and plain meaning of the language used in the amendment. Since Springer and Tag’s construction involved the previous statutory language, which has been amended, those decisions are no longer the law as to the amended provision. Furthermore, the statutory language, requiring publication notice, makes no distinction between original sale dates and continued sale dates. Under the plain terms of the statute, notice, both newspaper publication notice as well as posted notice in the county, is required of any continued or adjourned sale, the same as for the original sale. We believe that a uniform procedure for all real estate sales, including mortgage sales, is an improvement over the previous state of the law, wherein some sales were governed by the statutory provisions but others by a reasonableness requirement. In the instant case, the notice required under section 14 was not given, for no notice was posted in the county as to the sales, nor was notice of the June sale dates published in a newspaper as required. Since the requirements of sections 14 and 15.1 were not complied with in this case, the sales must be set aside and the cases remanded to the circuit court for the setting of future sale dates, with proper and full notice given, as required by the statute.

The courts’ denial of the motion to vacate the decrees of foreclosure is affirmed in both cases, but the denial of the motion to vacate and set aside the sales is reversed in both cases, and the cases are remanded to the circuit court for further proceedings in accordance with the views expressed herein.

Affirmed in part and reversed in part, with remandment.

HEIPLE and BARRY, JJ., concur.