2023 IL App (1st) 221273
Ill. App. Ct.2023Background
- Plaintiff Jet Acquisitions bought a foreclosed Chicago property that remained subject to a judgment lien obtained earlier by defendant Tiffany Brooks for unpaid attorney fees (judgment $19,960.25).
- Jet contracted to resell the property and the sale contract required the seller to deliver marketable title (provide evidence 5 days before closing) and to cure title encumbrances within 30 days after discovery.
- Brooks sent a payoff letter demanding $33,053.87 (breakdown including judgment, statutory interest, and unperfected post-judgment fees). Jet objected to the extra fees but paid the demanded amount to close the sale.
- Jet then sued in assumpsit (money had and received) seeking recovery of the $6,960.00 it claimed was paid in excess of the judgment plus statutory interest.
- The trial court granted summary judgment for Jet, and also quashed a subpoena Brooks issued to Chicago Title; Brooks appealed arguing genuine factual disputes and error in quashing the subpoena.
Issues
| Issue | Plaintiff's Argument (Jet) | Defendant's Argument (Brooks) | Held |
|---|---|---|---|
| Whether summary judgment on assumpsit was appropriate (no genuine issue of material fact) | Jet: undisputed payment was compelled by lien and contract; Brooks was entitled only to judgment + statutory interest, so excess must be returned | Brooks: disputed whether payment was compulsory and whether she was legally entitled to the full payoff amount; factual issues preclude summary judgment | Affirmed — no genuine issue; Jet established elements of assumpsit and Brooks was limited to lien + statutory interest; excess recoverable by Jet |
| Whether payment was "compelled" (necessary to avoid business injury) | Jet: contract obligation to deliver marketable title and risk of business injury (holding costs, lost sale) made payment compelled | Brooks: payment was voluntary; title indemnity was an alternative to paying (raised for first time on appeal) | Affirmed — payment was compelled under facts and indemnity argument forfeited for being raised first on appeal |
| Whether additional fees (attorney fees, costs) in payoff letter were collectible as lien | Jet: only properly perfected lien items (judgment + statutory interest) are collectible; unperfected post-judgment fees not enforceable as lien | Brooks: asserted entitlement to those extra amounts in her demand | Held for Jet — Brooks failed to perfect those fees as lien, so they were not collectible |
| Whether trial court erred by quashing Brooks’ subpoena to Chicago Title | Brooks: subpoena sought testimony re title indemnity escrows and policies, which could show alternatives to payment | Jet: trial court properly quashed; Brooks failed to support the appellate argument with authority | Affirmed — subpoena quashed; Brooks forfeited appellate arguments for lack of authority and for not raising certain issues below |
Key Cases Cited
- Butitta v. First Mortgage Corp., 218 Ill. App. 3d 12 (1991) (elements of an assumpsit claim)
- Tobias v. Lake Forest Partners, LLC, 402 Ill. App. 3d 484 (2010) (attorney fees must be reduced to judgment or perfected to be collectible as lien)
- Ableman v. Slader, 80 Ill. App. 2d 94 (1967) (party cannot be required to "purchase a lawsuit"; relevance to compelled payments to clear title)
- Obert v. Saville, 253 Ill. App. 3d 677 (1993) (appellate briefs must present cohesive arguments and authorities; failure may result in forfeiture)