Citation. Marino v. United Bank of Illinois, N.A., 137 Ill. App. 3d 523, 484 N.E.2d 935, 92 Ill. Dec. 204 (Ill. App. Ct. 2d Dist. Oct. 18, 1985)
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Brief Fact Summary.
Lawrence Marino, (Appellant), purchased a property at a foreclosure sale and then attempted to vacate the sale and have his money returned on the basis of misrepresentation. The trial court initially vacated the sale but then reversed its order and confirmed the sale on the motion to reconsider by United Bank of Illinois, (Appellee). Appellant appeals that decision.
Synopsis of Rule of Law.
The doctrine of caveat emptor applies to judicial sales and the risk of a mistake or defect of title is to be borne by the purchaser unless there is fraud, misrepresentation, or mistake of fact.
Appellant attended a sheriff’s sale with the intent to find out about the property for sale and then make a decision as to whether to bid. He asked a deputy sheriff whether there were any liens or encumbrances on the property. The sheriff stated that there were, the total of which amounted to $14,327. The sheriff then directed Appellant to the attorney who was handling the case. Linda Kream, (Kream), was attending the sale in the place of the attorney who was handling the case. She stated that there did not appear to be any but she was not sure because this was not her case and she would not want him to rely on that. Appellant purchased the property for $13,541. He was then joined as a defendant in an action by First Savings and Loan of Rockford and it was then that he became aware of liens and encumbrances superior to his interest.
Whether there was a misrepresentation made to Appellant such that the court in equity should vacate the sale.
No. There is no evidence that the statement made was known to be false or intended to induce Appellant’s reliance, therefore, the sale stands.
It is clear that Appellant failed to prove a fraudulent misrepresentation. There was no false statement of material fact. Kream indicated that from the information in the file there did not appear to be any liens or encumbrances, but she expressly told Appellant that she was not sure of that fact because it was not her case. Her statement was an opinion. There was no evidence that the statement was made known to be false and the lack of certainty expressed by Kream would not support a finding that she made the statement with the intent to induce Appellant to act. In this case the lack of certainty of the statement was sufficient to put a reasonable person on inquiry and Appellant was not justified in relying on that statement without taking appropriate steps to check the title.
Appellant further argues that it was incumbent upon Appellee to search for liens and encumbrances and join all parties having subsequent liens and that in foreclosure the mortgagee should search for intervening transfers or liens and should join record owners as parties defendant. Appellee had no duty to do so.