THI RD DIVI SI ON Dec ember

22, 2010

No. 1-10-0424

MARI L YN GAN DY, ) Appea l from the Circuit Court of ) Cook County Plaintiff-Appellee , ) ) No. 05 M1 723028 v. ) No. 06 CH 12045 ) No. 06 CH 14953 SHAMEKIA KI MBROUG H, WM S PECI AL TY ) MORTGAGE, L L C, ARGENT MORTGAGE ) Honora ble Danie l A. Riley , COMPANY, L L C, and CHASE HOME ) J udg e Presiding

. FI NANCE, ) ) Def endants-A

ppellants. ) ) (Salaam Ghafir, America n Home L oan, Mar

k ) Mitchell, Greg ory

Wil son, Tristar Title, and ) Unknown Owne rs and Nonr ecor d Claimants, ) ) Def endants). )

J USTI CE MURPHY delivered the opinion of the court: This appea l involves the resolution of three consolidated a ctions conce rningrea l property located a t 7941 South L aflin Street, Chica g o, I llinois (L aflin prope rty ). De fenda

nt Shamekia Kimbroug h filed a f

orcible de tainer a ction ag ainst plaintiff, Marily n Gandy , on September 23, 2005, seekingpossession of the L aflin prope rty and pay ment of $782 in rent. On June 19, 2006, Gandy soug ht to quiet tit le to the L aflin prope rty in her name. Gandy

also soug ht other re liefNo. 1-10-0424

based on c laims of unconsciona bility and unjust enrichme nt. Gandy included Kimbrough, Salaam Gha fir, Amer ican Home L oan, Mar k Mitchell, attorney

Gre g ory Wil son, and Tristar

Title

as name d defe ndants. On J uly 26, 2006, WM S pecia lty Mortg ag e, L L C, assigne e of Arg ent Mortg ag e Company , L L C, filed the third suit involved in thi s case . WM S pecia lty Mortg ag e filed a complaint to forec lose the mortg ag e on the L aflin prope rty ag ainst Gandy , Kimbroug h, Kimbroug h’s husband Moses Smith I I I , and Specia liz ed L oan Servic ing, L L C. On August 30, 2006, Gandy ’s motion to consolidate the three actions wa s g rante d and the c onsolidated ac tion was he ard in the c hance ry division of the circuit cour t of Cook County

. Followingdiscovery , Gandy and Kimbrough filed cr oss-motions for summary judgme nt. The trial c ourt denied K imbroug h’s motion and g rante d Gandy ’s motion. The court f ound that Kimbroug h was not a bona fide g ood-fa ith purchase r for value of the L aflin prope rty

and that an equitable mortg ag e existed betwee n Gandy and Gha fir. A c omprehe nsive order was pre pare d by the par ties and ente red on January 11, 2010, and a judicia l deed wa s issued convey ing the L aflin proper ty to Gandy

. On appe al, Kimbroug h argues that the trial c ourt err ed in findingthat she wa s not a bona fide purcha ser f

or value and she should take title to the L aflin prope rty fre e and c lear

of any equitable inter ests claimed by Gandy . Kimbroug h also contends that the tr ial court e rre d in findingthere was no g enuine issue of materia l fac t conce rningthe conve yance from Ga ndy to Ghaf ir and whe ther that tra

nsaction constituted an e quitable mortg ag e or a n actua l conveyance of the L aflin prope rty . Def

endants WM Specialty

Mortg ag e, L L C, Arg ent Mortg ag e Company , 2No. 1-10-0424

L L C, and Chase Home Financ e, collec tively the mortg ag ee, a lso sought re versa l of the trial court’s or der a

nd adopted Kimbrough’s ar guments and brief . For the followingrea sons, we aff irm the finding s of the trial c ourt. I . BA CKGROUND A. The Plea dings 1. Kimbroug h’s For cible Use and De tainer A ction Kimbroug h filed her

forc ible use and de tainer a ction ag ainst Gandy , seeking to evict Gandy from the L aflin prope rty

and re cover

$782 in unpaid rent on Septembe r 23, 2005. FollowingGandy ’s appe ara nce a nd jury demand, Kimbrough filed a motion for use and occupa ncy . Kimbroug h asser

ted that she wa s the owner of the L aflin prope rty

and Ga ndy had been oc cupying the proper ty without paying r ent. Attache d to the motion were a n aff idavit completed by

Kimbroug h and a le tter sent to Gandy on August 29, 2005, indicating that rent would be $1,300 per

month and that her a lleg ed right to possession of the L aflin prope rty was based on a

n invalid ag ree ment with Ghafir. In response , on J anuar

y 23, 2006, Gandy

filed a motion demandingstrict proof a nd alleg ing that her right to possession and claimed pre paid re nt were pursuant to a wr itten lease. In support, Gandy

attache d a copy

of her lease with Ghafir. She a lso attache d a copy of a c ashier’ s chec k payable to Gha fir on her behalf for $18,400, the a

mount she claimed wa s for two year s’ prepa id rent at $750 a

month. Base d on this information, Gandy also filed a motion to dismiss Kimbroug h’s complaint. Attache d to her re sponse to the motion to dis miss, Kimbrough provide d a copy of the
3No. 1-10-0424

war ranty deed f or the L aflin prope rty

enter ed betwe en her

and Gha fir. The trial court de nied the motion to di smiss and gr anted the motion for use and occ upancy , order ing G andy to pay Kimbroug h rent duringthe pende ncy of the a ction. On J une 19, 2006, Ga ndy filed a motion to

rec onsider that orde r alleg ing that she believe d she wa s the victim of fra ud and attac hing a

copy of her quiet title action. Gandy also soug ht consolidation of the two ca uses of a ction both in her motion for rec onsideration and in a separ ate motion to consolidate on August 1, 2006, which was g rante d on August 30, 2006, with the actions beingfurther consolidated with the for eclosure action in J anuar

y 2007. 2. Plaintiff’s Quiet Title Action On J une 19, 2006, Ga

ndy filed her action to quiet title to the L aflin prope rty . Gandy alleg ed that she w as the sole leg al titleholder of the L aflin prope rty based on he r dee d rec orded in 2001 when she inherited the pr operty from her fathe r fr ee of

any mortg ag e. A f

ormer e mploy ee of Amer ican Home L oans and f riends with cur

rent e mploy ees the re, G andy soug ht financing

to pay for home improve ments. Mark Mitchell, a se nior loan off icer , told Gandy

that she did not have suf ficient c redit, but provided a surrog ate buyer, G hafir, who would secur e a mor tga g e for the home in re turn for c ash pay ment and re nt. Gandy claimed that attorney

Gre g ory Wil son acc ompanied her to First Amer ican Title Company on J uly 26, 2004, to complete what she thoug ht was a r efina ncingof her

home. Ghaf

ir

secur ed a $76,500 mor

tga g e fr om America

n Home L oans on that date . Gandy alleg ed that she enter ed into an option to repurc hase the home from Gha fir and ha d enter ed into a lea se with Ghaf ir to remain in the home. H oweve r, in September 2005, K imbroug h soug ht rent pay ments
4No. 1-10-0424

from Ga ndy as the a lleg ed new

owner of the L aflin prope rty
. Gandy soug ht to quiet tit le ag ainst Kimbroug h, Ghaf ir and a ny other c laimants, claiming that the dee d transfe r to Ghaf ir should be consider ed an e quitable mortg ag e and not a formal conveyance of re al prope rty . Gandy also claimed that the deed tr ansfe r fr om Ghafir to Kimbroug h should be voided base d on unconsciona bility . Gandy

alleg ed that Gha fir wa s awa re of Ga ndy ’s continued pr esenc e in the building a nd that he knew

of the limited nature of

the interest he he ld as well as the f act he r intere st in the property would be cle arly

evident if the sophisticated par

ties and broke rs conduc ted basic r esea rch. She a lso asserted that the discrepa ncy in the terms of the a g ree ments betwee n her a rra ng ement and that of Ghaf ir and Kimbroug h demonstrated that she was g iven a hig hly disadvantag eous equitable loan. Gandy ’s third claim was f

or unjust enrichme nt based on the r ealization of g rea t benef its based on the discrepa ncies in value s.

3. WM S pecia lty

Mortg ag e, L L C’s Fore closure A ction On J uly 26, 2006, WM S pecia lty Mortg ag e filed its fore closure a ction ag ainst Kimbroug h, Gandy , and other s. I t alleg ed that Kimbrough and her husband executed a

mortg ag e to WM Specialty

Mortg ag e as a ssigne e of Arg ent Mortg ag e Company , in the sum of $136,000 on August 22, 2005. The complaint furthe r alleg ed that on Apr il 1, 2006, the Kimbroug hs defa ulted on the mortg ag e and $138,749.39 w as due WM Specialty Mortg ag e. B. D iscovery At some point during litig ation, Americ an Home L oans ce ased ope rations, re portedly without any

assets. It was not made a party to the action. F urther, ne ither Mitchell nor Price

5No. 1-10-0424

could be located to be ser ved and de posed. Ther efor e, ther e is no evidenc e of r ecor d from Americ an Home L oans or its employees involved in the tra nsaction other tha

n the testimony

of the par ties and the loan a

nd sale doc uments.

1. Gandy Deposition Gandy testified that she wa s born and r ear ed in the L aflin prope rty and lived ther e most of her life . She had lived ther e since 2002 afte r she inher ited it from her f ather . Whil e ther e wa s no mortg ag e on the L aflin prope rty , Gandy talked with Donald Price and Mar k Mitchell of Americ an Home L oans about re financ ing so that she could re novate he r kitchen a nd bathroom. Gandy had wor ked for Americ an Home L oans for approximately

three months the prior y ear and Price wa s rec ommended by her f riend Rene e Rig g ins, who worked at America n Home L oans. Price a nd Mitchell informed he r that her cre dit was not sufficient to qualify for f inancing , but they could set up a sur

rog ate buyer tra

nsaction to ac hieve he r fundingg oal. Under this plan Gandy

sold the L aflin prope rty

to Ghafir on July

26, 2004, for approximately

$71,000. Gandy

testified that she used $13,000 to pa y off a debt to her c redit union and $7,000 for c onsumer debt. She pa id home owner ’s insuranc e of $864 a nd rente r’s insurance of $250 for

a year . Gandy

understood that re nt to be paid Ghaf ir would be $750 a month and she g ave Ghafir a chec k for $18,400 f

or pre pay ment of two year s’ re nt and an additional chec k for $4,500 f or what Ghafir c alled mortg ag e pay ments. Gandy

testified that this left her with approxim ately

$20,000 from the tra

nsaction. Gandy testified that Wils on was not her attorney but was assig ned to work on the transac tion by

Price. Ga

ndy identified the wa

rra nty deed a nd lease ag ree ment executed by her
6No. 1-10-0424

and Gha fir. Ga

ndy testified that she did not understa nd the transa ction to be the ac tual sale of the L aflin prope rty . She stated that she e x ecute d the documents be cause she believe d she wa s enter ing a financ ing a

rra ng ement and did not know a ny better. G andy

added that she trusted Price be cause he wa s rec ommended by her f riend Rig g ins. Gandy testified that on J une 7, 2005, Gha fir tende red he r a f ive-da y notice. Ga

ndy testified that she wa s workingat a r ealty office at that time and took the notice to a Housingand Urba n Deve lopment counselor a t the office , who advised he r not to make a ny more pa y ments beca use she ha d alre ady

g iven Ghaf

ir money . Gandy

testified that she wa s not advised of the sa le of the L aflin prope rty

to Kimbroug h, but rec eived a $4,500 chec k from the title company and took it to her office . She was infor med that it might mean that the proper ty had bee n sold. Gandy ’s attorne y

told her she c ould cash the c heck w ith recour se. In September 2005 Kimbroug h knocked on he r door a nd informed Ga

ndy that she wa s the new owner of the L aflin proper ty and re quired re nt pay

ment. Gandy admitted that her c heck f or the a lleg ed re nt prepa

y ment did not contain any indication or notation that was the pur pose of the f

unds. She also admitted that there was no other doc umentation prepa red to support that c ontention. She testified that the lease back a nd repur chase option concepts we re discusse d and it was propose d that Price would dra w up pape rs for those, but no doc ument was e x ecute d at closingfor those pur poses. Gandy

testified that she trusted Price a

nd Mitchell beca

use her friend r ecommende d them. 2. Ghaf ir Deposition Ghaf ir testified that he w as a c linical supervisor f or the South Suburban Council for

7No. 1-10-0424

Alcoholism and Substance Abuse but that he was doing consulting w ork on employee policie s for Ame rica

n Home L oans at the time he purcha sed the L aflin prope rty . Ghaf ir was infor

med that the L aflin prope rty

was for sale through Price fr om a woman who w orked f or Price a nd was havingfinanc ial problems. Ghaf ir understood the tra

nsaction would be a

straig ht sale of the L aflin prope rty

and dec ided to take a ction since he had bee n looking f or investment prope rties. Ghaf ir testified that he c ompleted a loan a pplication and wa s approve d for $90,000 a nd he, with appr ox imately

$5,000 down, purc hased the proper ty . Ghaf ir attende d the closingand had no idea

what Ga ndy ’s under standingof the tra nsaction wa s. He testified that Price took ca re of the de tails. W hen shown a copy of the lea se, Gha fir stated that he did not rec og nize it and claimed that he did not sign his name on the le ase. H e stated that there w as no discussion of lease arr ang ements or Ga ndy staying a t the L aflin prope rty

until after the c losing. How ever , he stated his understandingof the situation was that Ga ndy would provide some mortg ag e pay ments up front and be responsible for paying the mortg ag e dire ctly for a y ear , at which point they would revisit the possibilit y

of her repur chasing

. Ghaf ir testified that he truste d Gandy to make the mortg ag e pay ments directly , but when he wa s notified in J une 2005 that she w as delinquent on pa y ments, he visited her. G andy informed him that she wa s havinghealth issues but would g et money to make the pa

y ments. After a month without pay

ment beingmade, Gha fir made arr ang ements to pay the past-due mortg ag e. While Gandy

was to pay

the mortg ag e and not r ent, Ghaf ir issued the five- day

notice beca use he did not know wha

t else to do. He de cided to sell the L aflin prope rty and, through word of mouth, he ide ntified Kimbroug h as a pr ospective buyer. G hafir attended the c losing
8No. 1-10-0424

with Kimbroug h and stated that she was a war e that Ga

ndy continued to re side at the L aflin proper ty
. Ghaf ir was una

ble to rec all rec eivingthe $18,400 che ck fr om Gandy . He a lso could not explain why

$15,599.78 of the proc eeds f rom the sale to Kimbrough wer e to be dire cted to Price

. Fur thermore , he had not se en a doc ument alleg edly from him direc ting $24,761.38 to Rig g ins Deve lopment and did not know what that entity was or why

it was disbursed so much funds. 3. Kimbrough Deposition Kimbroug h testified that she ha d invested in sever al prope rties re sulting in both profits and for eclosure s. She testified that she wa s told that the L aflin prope rty was in pre fore closure and had be en re habbed, show ing he r picture s of a ne w kitchen a nd bathroom. Kimbroug h testified that in investigating the pr operty , she re sear ched the Cook County rec order of dee ds’ Web site to make sure that Ghafir owned the L aflin prope rty and drove past it to assess the exterior condition of the prope rty
. Despite the f

act that she maintained that she w as g oing to live at the L aflin prope rty and she wa s told there wa s a tena nt, Kimbroug h did not see the inside of the building or inve stigate if it was occ upied. Kimbroug h testified that at the c losing, Gha fir wa s supposed to g ive her the lease , but she did not rece ive a c opy at that time. Ghaf

ir also told her that he had told Gandy that someone ha d purcha sed the prope rty and she w ould have to move out. 4. Documenta

ry Evidence Numerous doc uments were attache d to Gandy ’s motion for summary judgme nt detailing the transa ctions in this m atter. A mong the documents included f rom the first tra

nsaction betwe en
9No. 1-10-0424

Gandy and Gha fir we re c opies of the c ance led che cks fr om Gandy to Ghafir f

or $18,400 and $6,500, the lease betwee n Ghaf ir and Ga ndy , and the HU D-1 settlement state ment. The HU D-1 settlement state ment indicates that the gross contra ct sales pr ice f or the L aflin prope rty

was $90,000 with $3,000 ca sh ear nest money . The princ ipal amount of Gha fir’s loan was $76,500. G hafir r ece ived an $1,100 c redit for rent a nd $5,400 cre dit for closingcosts. Gandy rec eived a

car ry back se cond mortg ag e for $4,500. A copy

of the wa rra nty deed w ith Gandy convey ing the L aflin prope rty

to Ghafir is a lso of rec ord. The HU D-1 settlement state ment for the c losing be tween K imbroug h and Gha fir incidate s a $170,000 g ross contra ct price . The stateme nt indicates that Kimbroug h had a f irst mortga g e for $136,000 and a se cond mortg ag e for $33,422. Gandy

rec eived $4,500 pa

ying of f her second mortg ag e on the L aflin prope rty , and Saxon Mortgag e re ceive d $77,399.34 for Gha fir’s mortg ag e. Gha fir wa s to rece ive $81,400.21. The H UD-1 a lso corra borate d the handwr itten disbursement authorizations attache d to Gandy ’s motion from Ghaf ir to: Rigg ins Development for $24,761.38; Dona ld Price for $15,593.78; and himself for $28,212.65. C. The Trial Court’s Dispositive Orde r on the Motions for Summary J udg ment Both Kimbrough and Ga

ndy filed motions for summary judgme nt. There are no transcr ipts from the proce eding s befor e the tria l court, but a January 11, 2010, dispositi ve orde r
was e ntere d g rantingGandy ’s motion and denying K imbroug h’s motion. Ghafir pa ssed awa y duringthe cour se of pr ocee dings a nd his death wa s made of r ecor d in the order . The trial c ourt found that the de ed ente red into betwe en Gha fir and G andy was null and void as a

deed, but eff ective a s an equitable mortg ag e for $48,600. There fore , the subsequent de ed betwe en Gha fir

10No. 1-10-0424

and Kimbroug h was a lso null and void and defe ndant was a war ded judg ment ag ainst Ghafir for $71,590, the net amount of he r purc hase a nd her mortg ag e to Chase wa s found null and void. Kimbroug h rema ins indebted to Chase pursua nt to the promissory

note utiliz ed as c ollatera l for the mortg ag e to Chase. This appe al followed. I I . ANALYSI S Kimbroug h asser

ts that the trial court e rre d in gr antingGandy ’s motion for summary judgme nt beca

use she wa s a bona fide purcha ser of the prope rty

from Gha fir. Howe ver, w e find that Kimbroug h waived this ar gument based on he r fa ilure to provide pe rtinent authority and a cohesive leg al ar gument. Kimbroug h’s sec ond contention is that the trial cour t erre d in gr anting summary judgme nt to Gandy , findingthat the conve y ance from Ga ndy to Ghafir w as not a de ed but an equitable mor

tga g e. Summary judgme nt may

be g rante d when the ple ading s, depositions, admissi ons and aff idavits on file demonstrate no g enuine issue a s to any materia l fac t and the movingparty is entitled to judgment a s a matter of law. 735 I L CS 5/ 2-1005(c ) (West 2006). Where parties f ile cross-motions for summar y judgme nt, they

conce de the a

bsence of a g enuine issue of materia l fac t and invite the re solution of the matter by the cour t as a matter

of law. Chicago Hospital Risk Pooling Program v. Illinois State Medical Inter- InsuranceExc hange , 397 I ll. App. 3d 512, 523 (2010) ( here inafter CHRPP ). We revie w an or der grantingsummary judgme nt de novo

. CHRPP , 397 I ll. App. 3d at 523. Whil e we also revie w the evide nce in a light most favor able to the nonmovant, we c annot ig nore e vidence unfavor able to the nonmovant a nd may sustain the trial court on a

ny basis called f

or in the re cord. Ruane v . Amore , 287 I ll. App. 3d 465, 474

11No. 1-10-0424

(1997). A. Bona Fide Purchase r As noted above , Kimbroug h has fa iled to provide ade quate c itation to the recor d or analy sis of case law to provide a ny cog ent ar gument with respec t to her cla im that she was a bona fide purcha ser. “ ‘[A] revie wingcourt is entitled to have the issues on appea l clear ly define d with pertinent authority cited and a

cohesive leg al ar gument prese nted. The a ppellate court is not a depository

in which the appe llant may dump the burden of

argument and re sear ch.’ ” In re M arriage of Auriemma , 271 I ll. App. 3d 68, 72 (1995), quoting Thrall Manufacturing Co. v. Lindquist , 145 I ll. App. 3d 712, 719 (1986). Supreme Court Rule 341(h)(7) require s a clea r statement of

contentions with supporting c itation of authorities and pa g es of the r ecor d relied on. 210 I ll. 2d R. 341(h)(7). I ll-defined a nd insufficiently

prese nted issues that do not satisfy the rule a re c onsidered w aived. Express Vale t, Inc. v . City of Chi cago , 373 I ll. App. 3d 838, 855 (2007). We will not sift through the rec ord or c omplete leg al re sear ch to find support for this issue. Kimbroug h simply

prese nted the proposition that a bona fide purcha ser of a prope rty interest take s that interest fr ee a nd clea r abse nt actual or

constructive notice of a c laim of

owner ship. Daniels v. Ande rson , 252 I ll. App. 3d 289 (1993). Kimbrough then cites to In re Application of Count

y Treasurer , 30 I ll. App. 3d 235 (1975), as a n example where a cour

t found constructive notice beca

use the purc haser

lived acr oss the street a

nd the prope rty

was improved with aircr aft tie-downs and taxiway s and wa s adjac ent to the airpor t. Kimbroug h does not provide a ny analy sis of these ca ses or a cohesive leg al ar gument how they may be applied to the

12No. 1-10-0424

instant facts to support her claim. Rather, she makes a brief c onclusory

argument that she conducte d a dilige nt inquiry and wa s a bona fide purcha ser. This is insufficient a nd constitutes waiver of this argument. B. Equitable Mortg ag e Kimbroug h also argues that the trial c ourt err ed in deter mining that an e quitable mortg ag e exis ted betwe en Gha fir and G andy . The I llinois Mortg ag e F orec losure law pr ovides the followingdefinition for “ mortg ag e”:

“ ‘Mor tga g e’ me ans any

consensua l lien cre ated by a wr itten instrument which g rants or r etains an inter est in rea l estate to sec ure a debt or other obligation. The term ‘mortg ag e’ inc ludes, without lim itation: (a) mortg ag es sec uring‘re verse mortg ag e’ loa ns as authorized by subsection (a ) of Sec tion 5 of the I llinois Ba nking A ct; (b) mortg ag es sec uring‘re volving c redit’ loans a s authorized by subsection (c ) of Sec tion 5 of the I llinois Ba nking A ct, Section 1-6b of the I llinois Savings a nd L oan Ac t and Section 46 of the I llinois Credit Union Act; (c) ever y deed c onveying r eal e state, althoug h an absolute c onveyance in its terms, which shall have be en intended only as a se curity

in the nature of a mortg ag e; (d) e quitable mortg ag es; and (e) instruments which would have been de emed instruments in the nature
13No. 1-10-0424

of a mortg ag e prior to the e ffe ctive date of this amendator y Act of 1987.” 735 I L CS 5/ 15-1207 (West 2006). Under section 5 of the Mor

tga g e Ac t, a “c onstructive mortg ag e” is de fined a s “[e]very deed c onvey

ing r eal e state, which sha ll appear to have be en intended only as a se curity

in the nature of a mortg ag e, thoug h it be an absolute c onveyance in terms, shall be consider ed as a mortg ag e.” 765 I L CS 905/ 5 (West 2006). In deter mining whe ther a

constructive, or

equitable mortg ag e exists our courts consider se vera l fac tors, including:

“ ‘ the exis tence of an inde btedness, the c lose rela tionship of the parties, prior unsucc essful attempts for loa ns, the circ umstances surr ounding the transac tion, the disparity

of the situations of the par ties, the lack of

leg al assistance , the unusual ty pe of sa le, the inade quacy of consider ation, the way the consideration was paid, the re tention of written evide nce of the debt, the be lief that the debt re mains unpaid, an a g ree ment to repurc hase, a nd the continued exercise of

owner ship privilege s and re sponsibili ties by the seller [Citations.] ’ ” Robinson v. Builders Supply &Lumber Co. , 223 I ll. App. 3d 1007, 1014 (1991), quoting McG ill v. Biggs , 105 I ll. App. 3d 706, 708 (1982). The pa rties’ intentions are the key consideration and proof of these fa ctors “must be c lear , satisfac tory

and convinc ing” if they

are to overc ome a wr itten instrument. Robinson v. Builders Supply &Lumber Co. , 223 I ll. App. 3d at 1014. Howeve r, “it is not nece ssary that there be no conflict in the e vidence prese nted.” Silas v. Robinson , 131 I ll. App. 3d 1058, 1062 (1985). Kimbroug h argues that the undisputed evide nce w as insufficie nt to support a findingthat

14No. 1-10-0424

an equitable mortg ag e and not a n absolute conve y ance was c reated. Kimbroug h notes that the afor ementioned f

actor s require a fa ct-intensive a naly sis and the trial cour

t lacked undisputed fac ts to support it s finding. A s in Robinson , Kimbroug h argues that re mand is require d beca use the fa cts allow for

more than one conclusion. Robinson , 223 I ll. App. 3d at 1018. Ba sed on our examination of the testimony and docume nts presente d in this case, the tria l court prope rly deter mined that the transa ction betwee n Gandy and Gha fir constituted an e quitable mortg ag e. In this case, the r elationship of the par ties, Gandy

and Gha fir, is limit ed to this transac tion and we re only

broug ht toge ther by

Price. Ga

ndy admits that the attorney

at the closing , Gre g ory Wil son, nominally

repr esente d her. H oweve r, as she points out, m ore te lling is that Wil son was eng ag ed by

Americ an Home L oans and G hafir w as not repr esente d by counsel. F urther, G andy filed a le g al malpra ctice suit ag ainst Wi lson for his failure to adequately provide a dvice r eg arding the transa ction. I t appea

rs that Gandy ’s classific ation that the par ties were “pawns in a [ sic ] Americ an Home L oans’ sc heme to g ener ate f ees a nd char g es” is not without merit. In any event, ther e is no dispute that a debt e x isted. After the transa ction, Gandy ’s obligation continued as she wa s require d to pay what wa s classified a s rent by Gandy and mortg ag e pay

ments by Ghaf ir. It is unclear whether

the obliga

tion was to continue or r equire that Gandy exercise he r alleg ed option to repurc hase. G andy claims that this was the entire premise of the tra nsaction and that she followed Price and Mitchell’s lea d in executing the tr ansac tion beca use she trusted the m, neede d the money and did not possess the re quisite credit to obtain funds. Acc ordingto Kimbroug h’s testimony , Rigg ins informed her that the kitchen a

nd bathroom of the L aflin prope rty had bee n renovated, which wa s the main rea son for Ga ndy ’s
15No. 1-10-0424

pursuit of ref

inancing . Gandy

continued to re side in the L aflin prope rty and continues to do so to this date. Whil e the c ircumstance s surroundingthis transaction ar e ce rtainly unusual to this court, we f ear these ty pes of tra nsactions wer e prof

ligate in rec ent y ear s. Addingto our conc ern is that the sophistication of the par ties was admittedly

limit ed in this case. B oth Gandy and Gha fir testified to almost a complete la ck of unde rstandingof the tra nsaction and r esea

rch of the proper ty ’s value. T his factor , alongwith the disparity of consider ation provided by Ghaf ir to Gandy opposed to that paid by

Kimbroug h, clea

rly points to t his beingan equitable mortg ag e and not an outrig ht conveyance . Ghaf ir paid a pur chase price of $90,000 on Jul y 24, 2004, with a net payout to Gandy of roug hly $71,000, who then sent ba ck $22,900 to Ghaf ir. Ghaf ir then turned a

nd sold the proper

ty to Kimbroug h on August 22, 2005, for a c ontrac t price of $170,000. This vast disparity , espec ially fac toringin the funds transf err ed to Ghaf

ir by Gandy , strong ly

supports our finding that the transa ction established an e quitable mortg ag e. Finally , the most convincingevidenc e is the testimony by both parties. Ga

ndy clea rly believed that this was not a full conveyance of the L aflin prope rty , but a financ ing a rra ng ement that would allow her

to rec eive f

unds and then re purcha se it when she w as in a be tter position. Whil e Gha fir did testify

that he conte mplated havinga re lative live at the L aflin prope rty , he also testified that af

ter a y ear of pay ments, Gandy

would have the opportunity to repurc hase the L aflin proper ty . Ba sed on the totality

of the fa ctors, the tria l court did not err in finding that an equitable mortg ag e exists and gr antingsummary judgme nt to Gandy

. 16No. 1-10-0424 I I I . CONCLUSI ON

Acc ording ly , for the a fore mentioned re asons, the dec ision of the trial court is af firmed. Affir med. QUI NN and N EVI L L E, J J ., concur .

17No. 1-10-0424
R E P O R T E R O F D E C I S I O N S

– I L L I N O I S A P P E L L A T E C O U R T (Front Sheet to be Attached to Each Case) MARILYN GANDY, PlaintiffAppellee, v.

SHAMEKIA KIMBROUGH,

DefendantAppellant. Nos. 1-10-0424 Appel la te Cour t o f Illi noi s Fir st Dis tr ic t, T HI RD Divisi on Dece m ber22, 2010 ( m o d i f i e d u p o n r e h e a r i n g ) (G ive m on th, day

and y ear) J UST I CE M URPHY del ivere d t he o pin ion of th e c our t: Quin n, P.J ., an d Nevil le , J ., c o n c u r [ s ]

L o w e r C o u r t a n d T r i a l J u d g e ( s ) i n f o r m i n d i c a t e d i n t h e m a r g i n : T h e H o n o r a b l e Daniel Riley , J u d g e P r e s i d i n g .

I n d i c a t e i f a t t o r n e y r e p r e s e n t s A P P E L L A N T S o r A P P E L L E E S a n d i n c l u d e a t t o r n e y s o f c o u n s e l

. I n d i c a t e t h e w o r d N O N E i f n o t r e p r e s e n t e d

. Att orn eys fo r Def

enda nt- Appel lan t: Geor ge J . Arn old , Geor ge L. Sch oen bec k

Sosi n & Arn old , Lt d. 1180 0 W . 75t h Ave., Sui te 300 Pal os He ights , I L 60 463 Phon e: (7 08) 448

- 8141

Att orn eys fo r P lai nti f

f t- Appel le e : Gil ber t Li ss

39 S. La S al le Str eet , #60 5 Chic ago, I L 60 603 Phon e: (3 12) 641

- 6656 Please Us e Following Form: C o m p l e t e T I T L E o f C a s e

D o c k e t N o . C O U R T O p i n i o n F i l e d

J U S T I C E S

APPEAL from the Circuit Ct. of Cook County, Criminal Div.

For APPELLANTS, John Doe, of Chicago.

For APPELLEES, Smith and Smith of Chicago, Joseph 18