2016 Articles

Banker forges payoff letter to defraud bank and MERS no help By Erica Crohn Minchella February 2016 In the case of M&T Bank v. Mallinckrodt, MERS provided a safe haven for fraudulent behavior.
Banks, bankruptcy and setoff: What can a bank do when an account holder files for bankruptcy? By Bradley W. Small & Amy Randazzo May 2016 A bank has a common law right to setoff, and indeed usually includes setoff language in its various agreements with its account holders, but how effective are these when bankruptcy is involved?
Clarifying “the amount due from the owner to the contractor” under Section 30 of the Mechanics Lien Act: GX Chicago, LLC v. Galaxy Environmental, Inc. By Steve Mroczkowski & Thomas A. Christensen March 2016 Are sub-subcontractors entitled to access the pool of funds owed to a general contractor by an owner? Are they limited in their recovery to funds available to their immediate contractor?
Clear and convincing burden of proof required for joint owner to claim ownership of garnished funds By Kevin J. Stine August 2016 In Gataric v. Colak,, the Illinois Appellate Court held that a joint owner of a bank account seized in a supplementary proceeding must prove by clear and convincing evidence that the non-debtor joint owner is in fact the owner of the funds in the account.
Confession of judgment clause valid in note with variable interest rate By Kevin J. Stine October 2016 On August 26, the First District Appellate Court issued an opinion in Cole v. Davis, concluding that a confession of judgment clause with a fixed principal amount due and a variable interest rate is not legally insufficient under Illinois case law interpreting the statutory right to confess judgment.
Medical marijuana attorneys can breathe easier when advising clients By Thomas E. Howard October 2016 As a result of the recent decision in U.S. v. McIntosh, attorneys advising medical marijuana businesses can now breathe a sigh of relief.  The convoluted and conflicting field of state and federal statutes and case law just had a very large wrinkle ironed out.
Mortgagees beware: Rents and profits rule By R. Stephen Scott February 2016 With defaults continuing on commercial property mortgage notes in many sectors of the United States, it is worth reminding mortgagees and loan servicers that the “Rents and Profits Rule” (the “Rule”) continues in effect in Illinois.
My first 10 steps in foreclosing a mortgage By Lawrence O. Taliana May 2016 Over the course of his career, author Lawrence Taliana has worked to develop a step-by-step procedure for foreclosing on real estate.
New Ill. lien bond statute makes claim resolution easier By Samuel H. Levine May 2016 Illinois is the last state to enact a lien bond statute. The new law is probably the most complicated lien bond statute and far more protective of lien claimants than those in other states.
Recent cases By Michael L. Weissman March 2016 Recent cases of interest.
Recent cases By Michael Weissman February 2016 Recent decisions of interest.
Sheriff sale purchasers keep the property despite void judgment of foreclosure and sale By Robert Handley & Grzegorz (Greg) Czubernat August 2016 The case of U.S. Bank N.A. v. Rahman reminds us that when serving a defendant in Cook County, no matter where the case is pending, service of process must be effectuated by the Cook County Sheriff, unless the court appoints a special process server.
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To be or not to be—Is that the question? By Hon. Barbara Crowder October 2016 Author Barb Crowder, a recent victim of identity theft, shares practical advice for those unlucky enough to have a similar experience.
When defense is offense: Burdens of proof in mortgage foreclosure trials By Michael G. Cortina August 2016 Despite the scant amount of published decisions on the topic, the only Illinois decisions pertaining to the proof required in mortgage foreclosure cases state that the mortgagee merely needs to offer the note and mortgage into evidence in order to prove its prima facie case.
Will the real party plaintiff please stand up? Toward a sane foreclosure process: Substitution of party plaintiff, the transfer of Interest, and Implications on Standing By Stephanie Bowman Arsenty May 2016 The author provides some scenarios in which defendant borrowers are prejudiced under 735 ILCS 5/2-1008, and proposes changes to promote fairness in the foreclosure process.
You cannot go bankrupt selling marijuana! By Thomas E. Howard March 2016 Marijuana is an asset that cannot be administered for the benefit of creditors. Administering the marijuana assets is a criminal violation of federal law.