In addition to "actual physical compulsion" as discussed in the Restatement (Second) of Contracts, i.e., grabbing the hand of the victim and forcing the victim to appear to manifest assent, a contract may also be held void based on duress where a threat of imminent physical violence is exerted upon the victim of such magnitude as to cause a reasonable person, in the circumstances, to fear loss of life, or serious physical injury for refusal to sign the document.
The Addison Superior Court granted summary judgement in favor of Defendant Caroline Marini on plaintiff EverBank’s complaint for foreclosure on a mortgage that Caroline signed in 2009 together with her co-defendant and then husband, Gary Marini. The court concluded she was entitled to judgement as a matter of law because she signed the mortgage under threat of physical violence from Gary and thus made the mortgage void to her. Regardless of the void mortgage, the Court concluded EverBank was not a bona fide purchaser. EverBank moved to alter the judgement because it unjustly enriched Caroline, but the motion was denied.
Was foreclosure defendant under the duress of her then husband when she signed the mortgage even though there was no actual violence as to make the contract voidable?
The Court reversed the decision granting summary judgement in favor of Caroline on the issue of whether the mortgage is void and direct the trial court to enter a judgement for EverBank on that issue. The Court remanded for trial the issues of whether the mortgage is voidable and if it was enforceable.