{ "id": 256354, "name": "In re MARRIAGE OF LILY GROSS, Petitioner-Appellee, and JEFFREY DAVID GROSS, Respondent-Appellant and Cross-Appellee (Lily J. Gross, Indiv. and as Director and Beneficiary of Land Trust Number 274, Plaintiff; Jeffrey David Gross, Defendant and Counterdefendant; Success National Bank, Defendant and Counterdefendant-Appellee; First National Bank of Northbrook, as Trustee, et al., Defendants and Counterplaintiffs; Lawrence S. Starkopf, Contemnor and Cross-Appellant)", "name_abbreviation": "In re Marriage of Gross", "decision_date": "2001-08-24", "docket_number": "Nos. 1 \u2014 98\u20142975, 1 \u2014 99\u20143083", "first_page": "872", "last_page": "876", "citations": [ { "type": "official", "cite": "324 Ill. App. 3d 872" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "75 Ill. 2d 479", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2989976 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/ill-2d/75/0479-01" ] }, { "cite": "32 Ill. App. 2d 55", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5231372, 5231862 ], "year": 1961, "pin_cites": [ { "page": "58", "parenthetical": "in its description of Illinois land trusts" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/32/0064-01", "/ill-app-2d/32/0055-01" ] }, { "cite": "84 C 9066", "category": "reporters:state", "reporter": "Cow.", "year": 1985, "opinion_index": 0 }, { "cite": "171 Ill. App. 3d 344", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3617716 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "348" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/171/0344-01" ] }, { "cite": "220 Ill. App. 3d 952", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5276427 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/ill-app-3d/220/0952-01" ] } ], "analysis": { "cardinality": 484, "char_count": 8767, "ocr_confidence": 0.757, "pagerank": { "raw": 5.163360403490028e-08, "percentile": 0.32493940766430784 }, "sha256": "ae10922fd3c6a642747e338867e2eb822c3b480a1e4ebf3eb94c3ff4c5d9bd39", "simhash": "1:7ad869e72ffdfc9d", "word_count": 1394 }, "last_updated": "2023-07-14T20:56:29.143572+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re MARRIAGE OF LILY GROSS, Petitioner-Appellee, and JEFFREY DAVID GROSS, Respondent-Appellant and Cross-Appellee (Lily J. Gross, Indiv. and as Director and Beneficiary of Land Trust Number 274, Plaintiff; Jeffrey David Gross, Defendant and Counterdefendant; Success National Bank, Defendant and Counterdefendant-Appellee; First National Bank of Northbrook, as Trustee, et al., Defendants and Counterplaintiffs; Lawrence S. Starkopf, Contemnor and Cross-Appellant)." ], "opinions": [ { "text": "JUSTICE GREIMAN\ndelivered the opinion of the court:\nFirst National Bank of Northbrook, as trustee under trust agreement No. 274 (First National), held title to a parcel of real estate in Northbrook, Illinois, pursuant to the terms of a trust agreement dated November 9, 1984, which designated Lily Gross (Lily) as the owner of the beneficial interest and the holder of the power of direction. Sometime thereafter, First National, as trustee, executed a mortgage in the sum of $210,000 and an instrument creating a fine of credit in the sum of $125,000 encumbering the premises that were the subject matter of the trust. These loans were granted by Success National Bank (Success).\nThe letters of direction to First National that directed the execution of the security documents, seemingly executed by Lily, the holder of the power of direction, were apparently forged by her husband, Jeffrey Gross (Jeffrey), without the authority or approval of Lily.\nUltimately, Success secured a judgment of foreclosure and a judicial sale by reason of the default of the indebtedness evidenced by the security documents.\nLily filed a complaint against First National for breach of fiduciary duty as trustee and for negligence in connection with the execution of the several security documents.\nFirst National thereafter filed a counterclaim against Jeffrey and Success, the lender, seeking indemnity from any sums it might have to pay to Lily. All of these matters were consolidated into a single action which included the dissolution of marriage between Jeffrey and Lily.\nThe essence of First National\u2019s claim against Success is that Success delivered the mortgage documents and forged letter of direction to First National and that First National relied upon Success\u2019s somehow warranting that the letter of direction was signed by the appropriate party.\nThe trial court entered summary judgment in favor of Success. Although First National initially alleged that Success had delivered the loan documents and letter of direction to it, its employee, in a deposition, in response to the question \u201cDo you know how this letter of direction came to you?\u201d, answered \u201cNo.\u201d Thereafter the same employee filed an affidavit stating: \u201cIn conformity with the foregoing practice and custom *** Success National Bank submitted to North-brook *** the loan documents.\u201d The trial court determined that the employee\u2019s original answer of \u201cNo\u201d estopped First National from submitting the affidavit.\nApparently, First National believes that there is some wiggle room in the word \u201cno\u201d and that \u201cno\u201d was not a judicial admission.\nClearly if the initial testimony had been ambiguous or unclear, the employee\u2019s subsequent affidavit might not have been contradictory, but there is little room for doubt as to the meaning of the word \u201cno.\u201d It seems clear and unequivocal. Tongate v. Wyeth Laboratories, 220 Ill. App. 3d 952 (1991); Schmall v. Village of Addison, 171 Ill. App. 3d 344 (1988). Moreover, the later pronouncement is so speculative in its nature that it is hardly likely to establish an additional fact which would have to be submitted to the trier of fact. The affiant does not offer any chain of circumstances that showed that Success submitted the documents to First National, but, rather, she merely states that it is First National\u2019s \u201ccustom and practice\u201d as to who is assumed to have delivered the documents and the manner of delivery of the documents. It is unclear whether the documents came by mail or personal delivery, or were delivered by Jeffrey, or delivered by Success, or might have been delivered by Jeffrey\u2019s counsel. The witness just does not know and answered truthfully when she said \u201cNo.\u201d\nSuccess cites Schmall v. Village of Addison, 171 Ill. App. 3d 344, 348 (1988), which identified subsequent testimony inconsistent with earlier testimony and holds that the earlier testimony must be \u201cdeliberate, repeated and unequivocal.\u201d Again, we note that the word \u201cno\u201d is certainly unequivocal and deliberate. Additionally, in the deposition testimony the witness was asked, \u201c[D]o you know how this letter of direction came to you?\u201d which was answered by the witness \u201cNo,\u201d and the witness was again asked, \u201cYou don\u2019t know how you received it, is that correct?\u201d and again the witness answered \u201cNo.\u201d\nAccordingly, the court was correct in determining the witness\u2019s original answer was a judicial admission. Moreover, the deposition testimony of First National\u2019s employee makes it clear that the trustee did not rely on the fact that Success had tendered documents but, instead, the trustee \u201cwould look at the trust agreement and compare it to the letter of direction\u201d and would have looked at Lily Gross\u2019s signature on the trust agreement and compared it with the signature on the letter of direction.\nEven if we were to give credibility to First National\u2019s employee\u2019s statement, its argument would still fail. In the security documents, First National expressly warrants to Success that it has authority to act as trustee. For example, the mortgage granted by First National, as trustee, states:\n\u201c(b) Grantor has full right, power and authority to execute and deliver this mortgage to the lender\u201d\nand\n\u201cGrantor hereby warrants that it possesses full power and authority to execute this instrument.\u201d\nThe instrument then goes on to indicate that all of the other warranties provided in the instrument are not personal warranties binding on the grantor, personally, and all of the other undertakings in the mortgage are \u201cexpressly waived by lender\u201d as far as the grantor (trustee, First National).\nAccordingly, by the very terms of the mortgage, the warranty that it possesses full power and authority to execute the instrument is expressly made to the lender (Success). The instrument creating the revolving credit loan contains a similar warranty that the instrument is executed \u201cin the exercise of power and authority conferred upon and vested in it as such trustee.\u201d See La Salle National Bank v. Federal Emergency Management Agent, No. 84 C 9066 (N.D. Ill. July 26, 1985).\n\u201cAn Illinois land trust is a unique creature of Illinois law whereby real estate is conveyed to a trustee under an arrangement reserving to the beneficiaries the full management and control of the property. \u2018The trustee executes deeds, mortgages or otherwise deals with the property at the written direction of the beneficiaries. The beneficiaries collect rents, improve and operate the property and exercise all rights of ownership other than holding or dealing with the legal title.... While legal title to the real estate is held by the trustee, the beneficiaries retain \u2018the power of direction\u2019 to deal with the title, to manage and control the property, to receive proceeds from sales or mortgages and all rentals and avails on the property. The trustee agrees to deal with the res of the trust only upon written direction of the beneficiaries.... The trustee is not required to \u2018inquire into the propriety of any direction\u2019 received from the authorized persons.\u201d La Salle, slip op. at_, quoting Robinson v. Chicago National Bank, 32 Ill. App. 2d 55, 58 (1961) (in its description of Illinois land trusts).\nThe trustee accordingly is a mere vessel of title. It exercises no control over the property and only acts according to the beneficiaries\u2019 directions. People v. Chicago Title & Trust Co., 75 Ill. 2d 479 (1979). Accordingly, the single warranty or representation that a trustee makes upon execution of documents is that it has the power and authority to appropriately execute the instruments.\nTherefore, we would affirm the summary judgment entered by the trial court in favor of Success.\nAffirmed.\nQUINN, EJ., and THEIS, J, concur.", "type": "majority", "author": "JUSTICE GREIMAN" } ], "attorneys": [ "Barry H. Greenburg, of Law Firm of Barry H. Greenburg, of Chicago, for appellant Jeffrey Gross.", "Lawrence S. Starkopf and Pepi Camerlingo, both of Grund & Starkopf, EC., of Chicago, for appellee Lily Gross.", "Rosenthal and Schanfield, EC., of Chicago (James M. Dash and Stephen E Kikoler, of counsel), for appellee Success National Bank.", "Lawrence S. Starkopf and David C. Adams, both of Grund & Starkopf, EC., of Chicago, for cross-appellant." ], "corrections": "", "head_matter": "In re MARRIAGE OF LILY GROSS, Petitioner-Appellee, and JEFFREY DAVID GROSS, Respondent-Appellant and Cross-Appellee (Lily J. Gross, Indiv. and as Director and Beneficiary of Land Trust Number 274, Plaintiff; Jeffrey David Gross, Defendant and Counterdefendant; Success National Bank, Defendant and Counterdefendant-Appellee; First National Bank of Northbrook, as Trustee, et al., Defendants and Counterplaintiffs; Lawrence S. Starkopf, Contemnor and Cross-Appellant).\nFirst District (5th Division)\nNos. 1 \u2014 98\u20142975, 1 \u2014 99\u20143083 cons.\nOpinion filed August 24, 2001.\nRehearings denied August 22, 2001, and September 6, 2001.\nBarry H. Greenburg, of Law Firm of Barry H. Greenburg, of Chicago, for appellant Jeffrey Gross.\nLawrence S. Starkopf and Pepi Camerlingo, both of Grund & Starkopf, EC., of Chicago, for appellee Lily Gross.\nRosenthal and Schanfield, EC., of Chicago (James M. Dash and Stephen E Kikoler, of counsel), for appellee Success National Bank.\nLawrence S. Starkopf and David C. Adams, both of Grund & Starkopf, EC., of Chicago, for cross-appellant." }, "file_name": "0872-01", "first_page_order": 890, "last_page_order": 894 }