{ "id": 349571, "name": "EDWARD M. KLEIN, JR., Plaintiff-Appellant, v. JOHN A. DeVRIES et al., Defendants-Appellees", "name_abbreviation": "Klein v. DeVries", "decision_date": "1999-12-28", "docket_number": "No. 2\u201498\u20141400", "first_page": "271", "last_page": "274", "citations": [ { "type": "official", "cite": "309 Ill. App. 3d 271" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "29 Ill. 2d 214", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2824820 ], "year": 1963, "pin_cites": [ { "page": "220" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/29/0214-01" ] }, { "cite": "156 Ill. 2d 112", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 777542 ], "weight": 8, "year": 1993, "pin_cites": [ { "page": "115" }, { "page": "115" }, { "page": "115" }, { "page": "115" }, { "page": "116" }, { "page": "116" }, { "page": "116" }, { "page": "116-17" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/156/0112-01" ] } ], "analysis": { "cardinality": 409, "char_count": 7272, "ocr_confidence": 0.743, "pagerank": { "raw": 8.949963867823697e-08, "percentile": 0.5013875326322114 }, "sha256": "ae00a32734115bdb9820e0804e66fdf0ea5d17776931f65abb00858a30192414", "simhash": "1:967cc55f3f5ccb1c", "word_count": 1188 }, "last_updated": "2023-07-14T20:36:09.526568+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "EDWARD M. KLEIN, JR., Plaintiff-Appellant, v. JOHN A. DeVRIES et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE McLAREN\ndelivered the opinion of the court:\nPlaintiff, Edward M. Klein, Jr., appeals from the trial court\u2019s orders granting the defendants\u2019 motion to dismiss and denying plaintiff\u2019s motion to reconsider. We affirm.\nDefendant Metropolitan Life Insurance Company (Metropolitan) held a first mortgage on real estate that was titled in the name of defendant John A. DeVries. On February 19, 1986, DeVries filed for bankruptcy. Under the final plan of reorganization, which was confirmed on February 26, 1987, DeVries was to deliver a quitclaim deed in escrow to Metropolitan\u2019s attorney. In the event of default, Metropolitan was to give notice to DeVries, \u201ceach junior lien or mortgage holder,\u201d and \u201call other creditors and parties in interest\u201d that a default had occurred. The \u201cjunior lien holders and all other creditors and parties in interest (but not the Debtor)\u201d would then have an opportunity to cure the default or obtain Metropolitan\u2019s position as first mortgage holder by making certain payments to Metropol-item. If no one stepped forward to make these payments, the title to the property would \u201cpass free and clear of liens and encumbrances, unpaid real estate taxes, and mechanics\u2019 liens excepted\u201d to Metr\u00f3poli-tan. The reorganization plan was recorded with the Ogle County recorder of deeds on April 21, 1987.\nIn February 1989, DeVries executed and delivered to Klein a mortgage promissory note secured by three mortgages on the same property as that upon which Metropolitan held the first mortgage. These mortgages were recorded in Ogle County on March 27, 1989. Subsequently, DeVries defaulted on his first mortgage with Metr\u00f3poli-tan, which sent the necessary notice to DeVries and other parties, but not to Klein. On December 7, 1989, Metropolitan recorded the quitclaim deeds that had been held in escrow. Metropolitan subsequently conveyed its interest in the property to Cuzan Croplands, Inc., which subdivided the property and sold it in various parcels to many of the defendants, who also conveyed mortgages on the property to other listed defendants.\nIn September 1997, Klein filed a complaint sounding in foreclosure and declaratory judgment seeking to have his mortgages declared valid and to foreclose on the three mortgages against the subject real estate. All parties in the chain of title who had an interest in the property were named defendants. On May 26, 1998, the trial court dismissed plaintiffs first-amended complaint. Plaintiffs motion to reconsider was denied. This appeal followed.\nKlein contends that the trial court\u2019s dismissal of his amended complaint was in error. The court granted a motion to dismiss brought pursuant to section 2 \u2014 619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2 \u2014 619(a)(9) (West 1998)). Section 2 \u2014 619 provides a means of obtaining summary disposition of issues of law or easily proved issues of fact. Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 115 (1993). Subsection (a)(9) permits dismissal where the asserted claim is barred by other affirmative matter avoiding the legal effect of or defeating the claim. 735 ILCS 5/2 \u2014 619(a)(9) (West 1998); Kedzie, 156 Ill. 2d at 115. \u201cAffirmative matter\u201d encompasses any defense other than a negation of the essential allegations of the cause of action. Kedzie, 156 Ill. 2d at 115. Thus, a motion brought under section 2 \u2014 619(a)(9) admits the legal sufficiency of the plaintiffs cause of action. Kedzie, 156 Ill. 2d at 115. The initial burden is on the defendant going forward with the motion; once that is met, the burden shifts to the plaintiff, who must establish that the defense is unfounded or requires the resolution of an essential element of material fact before it is proved. Kedzie, 156 Ill. 2d at 116. If, after considering the pleadings and any supporting affidavits, the trial court finds that the plaintiff has failed to carry the shifted burden, the motion may be granted and the cause of action dismissed. Kedzie, 156 Ill. 2d at 116.\nAn appeal from such a dismissal is to be given a de novo review. Kedzie, 156 Ill. 2d at 116. This court must consider whether the existence of a genuine issue of material fact should have precluded the dismissal or, if no issue of fact exists, whether dismissal is proper as a matter of law. Kedzie, 156 Ill. 2d at 116-17.\nPlaintiff first contends that the trial court erred in finding that plaintiff had no right of redemption upon DeVries\u2019 default on the mortgage held by Metropolitan Life. In general, a mortgagee can have no greater rights than his mortgagor. Eade v. Brownlee, 29 Ill. 2d 214, 220 (1963). At issue, then, are the rights that DeVries had when he entered into the mortgage with plaintiff.\nDeVries entered into the bankruptcy reorganization plan on February 26, 1987. Under that plan, DeVries had no right to cure a default on the mortgage held by Metropolitan. He then entered into the second mortgages with plaintiff in February 1989. Plaintiff argues that, at the time he entered into the second mortgages, DeVries still was in equitable and legal title, as no default on the Metropolitan mortgage had yet occurred. Thus, DeVries\u2019 right to cure a default and redeem the property remained intact and could be conveyed.\nWe disagree. Once DeVries entered into the reorganization plan, his estate in the property was altered. By agreeing that he had no right to cure a default on the mortgage, DeVries\u2019 title to the property was altered from fee simple to fee simple defeasible, an estate that may last forever but that may end upon the occurrence of a specified event. See Black\u2019s Law Dictionary 615 (6th ed. 1990). DeVries\u2019 estate in the property could have lasted forever; however, default on the Metropolitan mortgage would end DeVries\u2019 estate, as he had no right to cure the default or redeem the property, pursuant to the reorganization plan. This, then, is the estate that DeVries held at the time he entered into the second mortgage with plaintiff. It is the only estate that DeVries could convey to plaintiff, and, when DeVries defaulted on the Metropolitan mortgage, DeVries\u2019 and plaintiffs estate in the property ended. As DeVries had no right to cure the default and redeem the property, neither did plaintiff. Plaintiffs claims to foreclosure and declaratory judgment were defeated by the limited estate that DeVries conveyed to plaintiff. Therefore, the trial court did not err in dismissing the cause of action.\nBecause we conclude that plaintiff had no right to cure DeVries\u2019 default, we need not address plaintiffs argument that he should have been notified of the default.\nFor these reasons, the judgment of the circuit court of Ogle County is affirmed.\nAffirmed.\nBOWMAN, PJ., and COLWELL, J., concur.", "type": "majority", "author": "JUSTICE McLAREN" } ], "attorneys": [ "Theodore Liebovich, of Liebovich & Weber, PC., of Rockford, for appellant.", "William T. Hundman, of Bloomington, for appellee Metropolitan Life Insurance Company.", "James J. Babowice and John E Christensen, both of Griffith, Jacobson & Babowice, of Waukegan, for appellee Byron Bank.", "Stephen E. Balogh and Clayton L. Lindsey, both of Williams & McCarthy, of Rockford, for other appellees." ], "corrections": "", "head_matter": "EDWARD M. KLEIN, JR., Plaintiff-Appellant, v. JOHN A. DeVRIES et al., Defendants-Appellees.\nSecond District\nNo. 2\u201498\u20141400\nOpinion filed December 28, 1999.\nTheodore Liebovich, of Liebovich & Weber, PC., of Rockford, for appellant.\nWilliam T. Hundman, of Bloomington, for appellee Metropolitan Life Insurance Company.\nJames J. Babowice and John E Christensen, both of Griffith, Jacobson & Babowice, of Waukegan, for appellee Byron Bank.\nStephen E. Balogh and Clayton L. Lindsey, both of Williams & McCarthy, of Rockford, for other appellees." }, "file_name": "0271-01", "first_page_order": 291, "last_page_order": 294 }