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                                                                                           SECOND DIVISION
                                                                                           September 12, 2000

Nos. 1-98-1388 & 1-98-3292 (Cons.)

JUSTICE McBRIDE delivered the opinion of the court:

This mortgage foreclosure action was initiated by appelleeLaSalle Bank, N.I. (LaSalle), formerly known as LaSalle BankNorthbrook, which had a mortgage lien on property commonly known as828 Pony Lane, in Northbrook, Illinois (the subject premises). Appellant Daniel Lopez, who had signed a purchase contract on thesubject premises and had advanced a sum of money to the nowbankrupt legal owner, filed an answer and counterclaim. LaSalleand Lopez disagreed as to the priority of their respective liens onthe subject premises. Lopez moved for summary judgment. Hismotion was denied and LaSalle then moved for summary judgment. Thecourt granted summary judgment for LaSalle, finding that LaSalle'smortgage lien had priority over any vendee's lien Lopez might havein the subject premises. Lopez filed separate appeals from thejudgment of foreclosure and sale entered by the trial court onMarch 23, 1998, and from the court's July 31, 1998, order approvingthe report of sale and distribution, confirming sale and order forpossession. The two separate appeals have been consolidated beforethis court.

The facts are not in dispute. The disagreement in this casecenters on the priority of claimed liens related to the subjectpremises. Legal title to the subject premises was held by FirstAmerican Bank (First American), as trustee of a land trust in whichthe subject premises were held. The sole beneficiary of the landtrust was Brandess Home Builders (Brandess), a custom home builder. In 1990, Parkway Bank and Trust Company (Parkway) obtained aninterest in the subject premises through recorded mortgages (theParkway mortgage).

Lopez entered into a written purchase contract with Brandesson May 9, 1995 (the purchase contract). Under the purchasecontract, Brandess agreed to convey the subject premises, improvedwith a custom home, to Lopez in return for the sum of $519,042. Lopez subsequently paid Brandess $120,933 in earnest money andpartial payment. Lopez, to satisfy a contract contingency, alsoobtained and delivered to Brandess a mortgage end loan commitmentfrom Sunbelt National Mortgage.

Upon receipt of the above, Brandess applied to LaSalle for aconstruction loan to finance construction of a custom home on thesubject premises. A LaSalle loan committee approved a securedconstruction loan of up to $385,000 on August 21, 1995. Therequest for loan approval prepared by a LaSalle loan officer notedthat the property had been sold to Lopez for $519,042. At the timeit made the loan, LaSalle had copies of the Brandess/Lopez purchasecontract, Lopez' end-loan commitment, and was aware that Lopez haddeposited earnest money with Brandess.

On August 21, 1995, First American, as borrower, executed apromissory note to LaSalle in the original principal sum of$385,000. The note was secured with the conveyance of aconstruction mortgage on the subject premises between FirstAmerican as grantor and LaSalle as lender. The mortgage wasrecorded by LaSalle on August 24, 1995.

The construction loan agreement between LaSalle and Brandessprovided, under a section entitled "Conditions Precedent to EachAdvance," in pertinent part:

"TITLE INSURANCE - Borrower shall have provided to Lenderan ALTA Lender's Extended Coverage Policy of TitleInsurance with such endorsement as Lender may require,issued by a title insurance company acceptable to Lenderand in a form, amount, and content satisfactory to Lenderinsuring or agreeing to insure that Lender's Mortgage orDeed of Trust on the Property is or will be uponrecordation a valid first lien on the property free andclear of all defects, liens, encumbrances, andexceptions, except those as specifically accepted byLender in writing." (Emphasis added).

The mortgage, in a section entitled "Further Assurances; Attorney-In-Fact," provided, in pertinent part:

"Further Assurances - At any time, and from time to time,upon request of Lender, Grantor will make, execute anddeliver, or will cause to be made, executed or delivered,to Lender or to Lender's designee, and when requested byLender, cause to be filed, recorded, refiled, or re-recorded, as the case may be, at such times and in suchoffices and places as Lender may deem appropriate, anyand all such mortgages, deeds of trust, security deeds,security agreements, financing statements, continuationstatements, instruments of further assurance,certificates, and other documents as may, in the soleopinion of Lender, be necessary or desirable in order toeffectuate, complete, perfect, continue, or preserve ***(b) the liens and security interest created by thisMortgage as first and prior liens on the Property,whether now owned or hereafter acquired by Grantor."(Emphasis added).

LaSalle approved an initial disbursement to Brandess in theamount of $199,400, which was deposited in an escrow account atChicago Title & Trust. $150,000 of that amount was used to pay offthe Parkway mortgage. Upon receiving the $150,000, Parkwayreleased its mortgage in the subject premises. A total of $203,565was eventually advanced by LaSalle to Brandess.

Brandess stopped construction on the home when it wasapproximately 50% complete. Brandess filed for bankruptcy onNovember 1, 1996, and was subsequently adjudicated bankrupt.

The LaSalle mortgage loan was in default and, on May 14, 1996,LaSalle filed suit to foreclose on the mortgage. Lopez answeredthe complaint and filed a counterclaim seeking specific performanceof the purchase contract between himself and Brandess and requestedthat the court find his vendee's lien prior, superior, andparamount to LaSalle's mortgage lien. Several subcontractors andtradesman also asserted mechanic's lien claims against the subjectpremises.

Lopez moved for summary judgment on his amended counterclaim,arguing that the doctrine of equitable conversion gave him aninterest in the subject premises that was superior to LaSalle'sinterest. The trial court, in denying Lopez' motion for summaryjudgment, found that the equitable doctrine of conventionalsubrogation applied. The court found that pursuant to theconstruction loan agreement, there was an agreement betweenBrandess and LaSalle that LaSalle's mortgage was to have priorityover all other lien claimants. The trial court, in applying thedoctrine of conventional subrogation, determined that underFirstMark Standard Life Insurance Co. v. Superior Bank FSB, 271Ill. App. 3d 435, 649 N.E.2d 465 (1995), LaSalle stood in theposition of Parkway for purposes of lien priority because of thepayoff of the Parkway mortgage and the language of the constructionloan agreement with Brandess.

On September 18, 1997, LaSalle filed its own motion forsummary judgment on its amended complaint. The court, relying onthe same reasoning it had used in denying Lopez' motion, grantedLaSalle's motion. In so doing, the court found that as a matter oflaw, LaSalle's mortgage, to the extent it paid off the Parkwaymortgage, was prior, paramount, and superior to any lien Lopez mayhave had.

Over the objections of Lopez, the court entered a judgment offoreclosure and sale on March 23, 1998. The judgment awardedLaSalle a lien prior to that of Lopez in the amount of $220,669.27. That amount included not only the $150,000 related to the Parkwaymortgage but also interest, late charges, attorney fees, and costs. The judgment also settled the claims of six mechanic's lienclaimants for a total payment of $49,295 provided LaSalle were thesuccessful bidder at the judicial sale. If, however, LaSalle werenot the successful bidder, the claims of all mechanic's lienclaimants would remain in full force and effect against the subjectpremises. The judgment left unresolved, no matter who thesuccessful bidder was, the claim of one other mechanic's lienclaimant.

The court's order did not adjudicate Lopez' claim for specificperformance. The court noted that it had before it only a motionfor summary judgment on the judgment of foreclosure and that therewas no formal motion pending on the specific performance count inLopez' counterclaim. The court orally ruled that Lopez' requestthat the court order Brandess to sign a deed, adjudicate the valueof improvements on the subject premises, and order Lopez to pay thevalue of the lot and improvements was not a complaint for specificperformance, but was "more in the nature of a passioned remedy." The court, in declining to adjudicate the issue, also found thatbecause Lopez had not presented the bankruptcy court ordermodifying the automatic stay, it was unable to determine whetherthe court had jurisdiction to decide the claim.⁽¹⁾

The trial court also stated that it was deferringprioritization of any lien Lopez might have in relation to theremaining principal amount of the LaSalle mortgage and themechanic's lien claims. Lopez objected, asking that the courtprioritize his lien prior to the judicial sale.

A judicial sale of the subject premises then took place. LaSalle, who bid $50,000, was the successful bidder. On July 31,1998, the trial court entered an order confirming the sale anddistribution. In a separate order, the court overruled Lopez'objections to the court's approval of the sale.

Lopez now appeals.

A trial court's rulings on motions for summary judgment arereviewed de novo on appeal. W.C. Richards Co., Inc. v. HartfordAccident & Indemnity Co., 311 Ill. App. 3d 218, 220, 724 N.E.2d 63(1999).

As noted above, the parties disagree as to the priority of therespective liens they claim on the subject premises. On appeal,the parties, as in their motions for summary judgment, each relyupon a different equitable doctrine.

Lopez contends that through the doctrine of equitableconversion, he obtained an interest in the subject premises whichwas prior in time, and therefore superior, to LaSalle's interest. Lopez argues that the trial court thus erred in granting summaryjudgment to LaSalle. LaSalle argues that, for various reasons, thedoctrine of equitable conversion is inapplicable.

LaSalle, in turn, contends that where part of the proceeds ofits mortgage loan was used to discharge a prior land loan and theloan documents expressly indicated LaSalle was to have a first andprior mortgage lien, the equitable doctrine of conventionalsubrogation applied and LaSalle's mortgage gained priority over anyinterest Lopez had in the subject premises. Lopez disagrees,arguing that the trial court's reliance on conventional subrogationwas inappropriate.

Because the trial court relied on the doctrine of conventionalsubrogation in finding that LaSalle's lien had priority and ingranting summary judgment for LaSalle, we will address the parties'arguments regarding that doctrine first.

In Home Savings Bank v. Bierstadt, 168 Ill. 618, 624, 48 N.E.161 (1897), conventional subrogation was defined as that:

"which results from an equitable right springing from anexpress agreement with the debtor, by which one advancesmoney to pay a claim for the security of which thereexists a lien, and by such agreement he is to have anequal lien to that paid off. Then he is entitled to thebenefit of the security which he has satisfied, with theexpectation of receiving an equal lien."

More specifically, in terms of real property, the doctrine ofconventional subrogation holds that when a refunding mortgage ismade, the lien of the old mortgage continues in effect withoutinterruption and the refunding mortgage does not become subordinateto an intervening lien or interest attaching between the time theold mortgage was recorded and the effective date of the refundingmortgage, even though the old mortgage has been released. KankakeeFederal Savings & Loan Ass'n v. Arnove, 318 Ill. App. 261, 268, 47N.E.2d 874 (1943). The doctrine was also succinctly summed up inWestern United Dairy Co. v. Continental Mortgage Co., 28 Ill. App.2d 132, 135, 170 N.E.2d 650 (1960), where the court stated:

"Conventional subrogation gives a third party, who loansa landowner money with which to discharge a prior lien,with the express (though not necessarily written)agreement that the third party will then be in theposition of the prior lienor, priority over interveninglienors to the extent of the discharged lien. It differsfrom 'legal' subrogation in that the third party would bea 'volunteer', with no obligation to discharge the priorlien or interest in the encumbered property, except forthe agreement."

See also Firstmark Standard, 271 Ill. App. 3d at 439-41 (discussingthe above cases and others, and holding that the "linchpin" of theconventional subrogation cases is an "express agreement that theinterests of a subsequent mortgagor are to be advanced to a firstmortgage").

There is no dispute that a portion of the LaSalle loanproceeds were used to discharge the Parkway mortgage. The partiesalso agree that the Parkway mortgage had priority over anysubsequent lien acquired by Lopez. We agree with LaSalle that theconstruction loan agreement and LaSalle mortgage both containedlanguage expressing an intent to give LaSalle a first and priormortgage on the subject premises. We thus find that the trialcourt properly applied the doctrine of conventional subrogation infinding that LaSalle was subrogated to the position of Parkway andtherefore had a first and priority lien to the extent of Parkway's$150,000 lien.

The LaSalle mortgage and construction loan agreement werebetween itself as lender, and borrowers First American and Brandessas, respectively, trustee and legal owner of the property, andbeneficial owner. Contrary to the assertions of Lopez, thedoctrine of conventional subrogation does not require either thatLaSalle obtain Lopez' consent to subordinate Lopez' purported lien,or that LaSalle obtain an assignment of the Parkway mortgage. SeeTyrrell v. Ward, 102 Ill. 29, 36-37 (1881) (where loan was advancedfor the purpose of discharging prior liens and to thus create aprior lien in relation to others in favor of lending party, "equitymust treat the transaction as an assignment to [the lender], asfully so as had a formal assignment been made and endorsed on thepapers evidencing these debts and liens"). Similarly, LaSalle'sknowledge of Lopez' purchase contract with Brandess is immaterialto the application of the doctrine of conventional subrogation. See Kaminskas v. Cepauskis, 369 Ill. 566, 571, 17 N.E.2d 558(1938).

Lopez maintains that a lien that is first in time is first inright, and that his lien was therefore superior to LaSalle'smortgage because it was created first. Lopez also contends thatbecause a subrogee stands in the shoes of his subrogor, LaSalle'sinterest in the subject premises was terminated when Parkwayrecorded its release. In Arnove, 318 Ill. App. at 268, it was heldthat when the doctrine of conventional subrogation is applied, "thelien of the old mortgage continues in effect without interruptionand the new mortgage does not become subordinate to an interveninglien or interest attaching between the time of the recording of theold mortgage and the effective date of the new one, even though theold mortgage be released." The Parkway mortgage, despite beingreleased, is deemed to have continued uninterrupted through thedoctrine of conventional subrogation and thus preceded Lopez'purported lien in time. Therefore it is the Parkway mortgage thatwas "first in time" and LaSalle, as subrogee to the mortgage, thatis "first in right."

Lopez suggests that the trial court wrongly applied thedoctrine of conventional subrogation to his prejudice as an"innocent third party." It is true that equity will effectuate thereal intention of the parties through the principal of conventionalsubrogation only where no injury is done to an innocent party. Bierstadt, 168 Ill. at 625. Lopez, however, is not an innocentparty harmed by application of the doctrine of conventionalsubrogation. Lopez gave his earnest money payment to Brandessknowing that Parkway had a superior mortgage lien. The applicationof the doctrine of conventional subrogation giving LaSalle'smortgage a priority position leaves Lopez in the same position thathe was in when he first contracted to purchase the subjectpremises. In such a case, the doctrine may be applied. SeeBierstadt, 168 Ill. at 625 (conventional subrogation may be applied"as against a subsequent incumbrancer, whose incumbrance has notbeen taken or his position changed because of the record showingthe discharge of the senior incumbrance").

Having determined that the trial court properly applied thedoctrine of conventional subrogation in finding that LaSalle wassubrogated to the position of Parkway, we turn now to the partiesdisagreement over application of the doctrine of equitableconversion to create a vendee's lien in favor of Lopez.

The trial court did not make an actual finding that Lopez hadacquired a valid vendee's lien through equitable conversion. Onappeal, Lopez, citing Section 15-1506(h) of the MortgageForeclosure Law (735 ILCS 5/15-1506(h) (West 1996)), and NBDHighland Park Bank, N.A. v. Wien, 251 Ill. App. 3d 512, 622 N.E.2d123 (1993), contends that the court should have determined thevalidity and priority of his lien where Lopez did not defer orwaive his right to have such determinations made. We agree thatthe trial court, pursuant to section 15-1506(h) and the Wiendecision, should have determined the validity and priority ofLopez' lien. Our own review of the facts however, leads us toconclude that a lien on the subject premises in favor of Lopez didnot arise.

Under the doctrine of equitable conversion, at the time anowner of land enters into a valid and enforceable purchase contractconcerning the property, he continues to hold legal title to theproperty in trust for the buyer, while the buyer becomes theequitable owner of the property and holds the purchase money intrust for the seller. Shay v. Penrose, 25 Ill. 2d 447, 449, 185N.E.2d 218 (1962); Life Savings & Loan Ass'n of America v. Bryant,125 Ill. App. 3d 1012, 1016, 467 N.E.2d 277 (1984) (quoting Shay).

According to LaSalle, Lopez' contract with Brandess, thebeneficiary of the land trust in which the subject premises washeld, could not give rise to a lien on the real property. In anIllinois land trust, both legal and equitable title to realproperty rest in the trustee, while the interest of the beneficiaryof the trust is personal property. Parkway Bank & Trust Co. v.Northern Trust Co., 213 Ill. App. 3d 444, 448-49, 572 N.E.2d 1055(1991). First National Bank of Barrington, Trust No. 11-1317 v.Oldenburg, 101 Ill. App. 3d 283, 286-87, 427 N.E.2d 1312 (1981). Thus, the trustee is the absolute owner of the real estate. Oldenburg, 101 Ill. App. 3d at 287.

It has been held that a land trust beneficiary may, undercertain circumstances, contract to sell real property. See Madiganv. Buehr, 125 Ill. App. 2d 8, 16-17, 260 N.E.2d 431 (1970). It hasalso been established that a beneficiary may even, under certaincircumstances, encumber the trust property with a lien. SeePaine/Wetzel Associates, Inc. v. Gitles, 174 Ill. App. 3d 389, 393-94, 528 N.E.2d 358 (1988). In the instant case, however, Brandesswas at no time the legal or equitable owner of the subjectpremises. Lopez has failed to direct us to, and we have not found,any case in which the doctrine of equitable conversion was appliedwhere the vendor at no time had title to the property. Thedoctrine of equitable conversion has traditionally been appliedwhere there was a contract between an owner and a purchaser. Thus,Lopez, in essence, asks us to expand the doctrine to includeholders of a beneficial interest in a land trust. This we declineto do. We conclude that Lopez is not entitled to application ofthe doctrine of equitable conversion here because he contractedwith Brandess, who was not at any time the legal or equitable ownerof the property and thus had no ownership interest to convey.

The cases relied upon by Lopez, Life Savings & LoanAssociation of America v. Bryant, 125 Ill. App. 3d 1012, 467 N.E.2d277 (1984), and Hinsdale Federal Savings & Loan Ass'n v. Gary-Wheaton Bank, 100 Ill. App. 3d 746, 427 N.E.2d 963 (1981), aredistinguishable. In Hinsdale, the property at issue was not heldin trust and the purchase contract through which the vendees werefound to have become the equitable owners of the property wasbetween the vendees and vendor/owner of the property. In Bryant,125 Ill. App. 3d at 1017, the vendor, a business, did not havetitle to the property at the time it entered into a sales contractregarding the property. The vendor subsequently acquired title,however, at which time the court held the vendee's equitableinterest in the property attached. As noted above, in the instantcase Brandess was at no time the legal or equitable owner of thesubject premises.

Moreover, the language of the purchase contract betweenBrandess and Lopez precludes a finding that an equitable lienshould be imposed here. "Equitable liens have been imposed wherecontracts manifested the intent that particular property or fundsbe security for debts wherever there has been a promise to conveyor assign the property as security." Uptown National Bank ofChicago v. Stramer, 218 Ill. App. 3d 905, 907-08, 578 N.E.2d 1165(1991). Where a contract expressly covers the entire subjectmatter, however, and does not provide for a lien, a lien will notbe inferred. Stramer, 218 Ill. App. 3d at 908. The tendency is tolimit rather than extend the doctrine of equitable liens. FirstBank of Roscoe v. Rinaldi, 262 Ill. App. 3d 179, 190, 634 N.E.2d1204 (1994). The Brandess/Lopez purchase agreement contained aclause stating that the written contract contained all of the termsrelated to purchase of the property. The purchase agreement didnot contain any provision stating that the subject premises stoodas security. Although equitable liens may be imposed in theabsence of an express agreement where fairness or justice dictate,there must be some basis for the intervention of equity, such asthe absence of an adequate remedy at law. Rinaldi, 262 Ill. App.3d at 190. Such was not the case here, where Lopez could, and did,bring an action for breach of contract which also included hisrequest for specific performance. We thus conclude that theimposition of an equitable lien is foreclosed here by the terms ofthe contract itself.

Lopez next contends that even if the doctrine of conventionalsubrogation applies, LaSalle's priority lien should be limited to$150,000, the principal amount of the Parkway mortgage. LaSalle,in its motion for summary judgment, requested that the court findLaSalle's lien interest in the subject premises superior to Lopez'vendee's lien to the extent of Parkway's prior interest. The courtgranted LaSalle's motion. The subsequent judgment LaSallesubmitted to the court awarded LaSalle a priority lien claim in theamount of the Parkway interest ($150,000), and added interest, latecharges, attorney fees, and certain costs. With those addedcharges, the trial court ultimately awarded LaSalle a lien claimwith priority over any interest Lopez had in the subject premisesin the amount of $220,669.

Lopez, on appeal, contends that any amount of the judgment inexcess of $150,000 was wrongfully approved by the trial court. According to Lopez, where LaSalle relied upon an equitable doctrinerather than a recorded mortgage agreement to obtain priority overLopez, LaSalle is not entitled to claim its contractual attorneyfees, costs, and interest.

As noted earlier, the trial court failed to determine thevalidity of Lopez' purported lien. We have determined, however,that the doctrine of equitable conversion was inapplicable and thusLopez had no valid vendee's lien. Where Lopez had no lien, LaSalledid not need to rely on the equitable doctrine of conventionalsubrogation to gain priority over Lopez. LaSalle's recordedmortgage was superior and entitled LaSalle, pursuant to its terms,to interest, fees, and costs. The trial court did not err ingranting LaSalle its contractual attorney fees, costs, latecharges, and interest.

Lopez next contends that the trial court erred in entering thejudgment of foreclosure and sale without adjudicating count I ofthe Lopez counterclaim. Count I of the Lopez counterclaim wastitled "Specific Performance/Breach of Contract." A party seekingspecific performance of a contract must be ready, able, and willingto pay any sum due and to comply with his portion of the contract. Dodds v. Giachini, 79 Ill. App. 3d 358, 362, 398 N.E.2d 205 (1979),rev'd on other grounds 84 Ill.2d 284, 418 N.E.2d 704 (1981). Although Lopez alleged that he was ready, willing, and able to payBrandess for completion of construction of the home, it wasacknowledged at oral arguments that because Brandess was inbankruptcy, it would be unable to complete the construction even ifordered to do so by the court. Therefore, specific performance ofthe actual contract entered into by Brandess and Lopez wasimpossible. "When it is out of the power of a party to a contractto perform his agreement, such fact necessarily constitutes asufficient reason for the court to refuse to decree specificperformance, for the reason that the decree would be nugatorybecause of the impossibility of its execution." Burke v.Mierenfeld, 300 Ill. 188, 192, 132 N.E. 799 (1921).

Despite Lopez' allegation that he was ready, willing, and ableto pay Brandess for completion of construction of the home, thetrial court noted, and counsel for Lopez acknowledged, that thecount did not actually request specific performance of the purchasecontract between Lopez and Brandess. The original contract hadstated that Brandess would convey the lot, improved with acompleted custom home, to Lopez for the sum of $519,000. Instead,Lopez requested in count I that the court order Brandess andtrustee First American to prepare and convey a deed to the subjectpremises to Lopez in return for Lopez paying to Brandess thejudicially determined purchase price attributable to the propertyand construction completed to that point. This was not actually arequest for specific performance, as it did not seek enforcement ofthe original purchase contract or even a certain portion of theoriginal contract. The trial court noted as much, holding thatLopez was not asking for specific performance and that the countwas going to be either denied or dismissed. Shortly thereafter,however, the trial court held that the specific performance countwould remain pending as the foreclosure moved forward.

"[T]he function of a court in a suit for specific performanceis to enforce a contract as made by the parties and not to make acontract for them and then enforce the contract thus made." Dodds,79 Ill. App. 3d at 364. We find that where actual specificperformance of the purchase contract was impossible and the reliefrequested was for performance under terms not reflected in theactual contract, the trial court should have adjudicated the countby dismissing the specific performance claim. Pursuant to ourauthority under Supreme Court Rule 366 (155 Ill. 2d R. 366(a)(5)),we dismiss count I of Lopez' counterclaim seeking specificperformance.

In this consolidated appeal, Lopez also objects to the trialcourt's order confirming the judicial sale. Lopez argues that thetrial court erred in failing to determine the amount and priorityof any interest Lopez had in the subject premises and in failing toadjudicate his claim for specific performance before confirming thejudicial sale. LaSalle responds that Lopez' objections to thejudicial sale are without merit and provide no legal basis forvacating the confirmation of sale. We agree with LaSalle thatLopez has merely reiterated arguments from his appeal of the orderof foreclosure. Moreover, those arguments have already beenaddressed and disposed of earlier in this opinion. We havepreviously determined that Lopez cannot prevail on his specificperformance claim and have found that Lopez did not acquire a validvendee's lien through application of the doctrine of equitableconversion. Therefore, the trial court's order confirming thejudicial sale was appropriate and is affirmed.

In accordance with the above, we affirm the trial court'sfinding that the doctrine of conventional subrogation gave LaSallea priority lien to the extent of the $150,000 Parkway mortgage, thecourt's grant of LaSalle's motion for summary judgment, and itsgrant to LaSalle of interest, late charges, attorney fees, andcosts. We also affirm the trial court's order confirming thejudicial sale of the subject premises. Finally, count I of Lopez'counterclaim seeking specific performance is dismissed.

Affirmed as modified.

COUSINS and GORDON, JJ., concur.

1. ¹ We note that Lopez, in his reply brief on appeal, hasincluded a copy of the bankruptcy court's order to modify stay,along with a cover letter dated February 27, 1998 (the day afterthe court orally noted it had no copy of the stay), forwarding thecopy of the stay to the trial court in this case.