FIRST DIVISION
OCTOBER 29, 2007
No. 1-06-3341
EMIGRANT MORTGAGE COMPANY,
)
Appeal from the
INC.,
)
Circuit Court of
)
Cook County.
Plaintiff-Appellee,
)
)
v.
)
No. 03 M1 105022
)
CHICAGO FINANCIAL SERVICES,
)
INC.,
)
Honorable
)
Wayne Rhine,
Defendant-Appellant.
)
Judge Presiding.
JUSTICE ROBERT E. GORDON delivered the opinion of the court:
This is a dispute between Emigrant Mortgage Company, Inc. (Emigrant), a New
York based mortgage lender, and Chicago Financial Services, Inc. (CFS), a Chicago
based mortgage loan broker, concerning commissions paid by Emigrant to CFS pursuant
to contract. The business relationship between the parties is controlled by a written
contract, the broker direct agreement (hereinafter agreement), and a written modification
to that contract. Emigrant filed suit alleging CFS’s breach of the modified agreement. A
bench trial resulted in a judgment in Emigrant’s favor. The trial court determined that a
valid and enforceable contract existed between the parties and that CFS breached the
terms of that contract, and it awarded Emigrant $109,799.79 in damages, plus $53,837.95
in costs and attorney fees. CFS filed a timely notice of appeal.
No. 1-06-3341
2
BACKGROUND
Emigrant is in the business of processing, underwriting, and funding mortgage
loans secured by real property. CFS is in the business of taking applications for
residential mortgage loans and submitting those loans to lenders. CFS brokers loans for
approximately 15 to 20 mortgage lenders in addition to Emigrant. On October 9, 1998,
Emigrant and CFS entered into an agreement whereby CFS would be paid a fee for each
loan that it brokered for Emigrant, as determined by the fee schedule in the agreement.
The agreement provides that “[t]his Agreement shall be governed by, and construed in
accordance with the laws of the State of New York, excluding such laws’ provisions
relating to choice of law.”
At the core of this dispute are two commission forfeiture provisions of the
modified agreement. Section 10.2 of the original agreeme