Real Estate Law

Court entered default judgment in mortgage foreclosure action.Court properly denied Defendant’s motion to quash service. Summons substantially adopts the appearance and content of the summons form in Illinois Supreme Court rules. Summons clearly identifies Defendant as a defendant in a pending foreclosure action, identifying her by her first and last name. Trial court’s jurisdiction vested when summons was served on Defendant. (JORGENSEN and HUDSON, concurring.)

Respondent Fannie Mae filed mortgage foreclosure action; court entered default judgment and Fannie Mae purchased the property at judicial sale. Six years later, Petitioners filed section 2-1401 petition alleging judgment of foreclosure was void, as they were not named in caption to summons, and thus court had no personal jurisdiction over them. Petitioners are estopped from asserting judgment was invalid by their lack of diligence and resulting prejudice to subsequent purchasers.(BIRKETT and BRENNAN, concurring.)

Plaintiff bank filed foreclosure complaint; court entered default judgment and property was sold at judicial sale. Six years later, Defendants filed petition for relief from void judgment, arguing that they were not properly served and thus court lacked personal jurisdiction over them. Court properly granted Bank's motion to dismiss on basis of laches.Defendants' unreasonable delay in filing complaint allowed them to increase the damages they could claim and resulted in property's transfer to bona fide purchasers, resulting in prejudice to Bank.  (McLAREN adn BRIDGES, concurring.)

(Court opinion corrected 8/14/20.) Plaintiff filed mortgage foreclosure complaint and served Defendant, through a special process server. Court granted Plaintiff's motion for default judgment, and court confirmed report of sheriff's sale. Seven years later, Defendant filed petition to quash service of process and vacate all orders and judgments. The affidavit of the special process server shows that substitute service of summons and complaint was made on Defendant at an address in Chicago, but does not indicate whether service was in Cook or Du Page County. Thus, the record does not affirmatively show that service took place in Cook County. Affidavit of service would lead a reasonably prudent purchaser to conclude that service was proper. Because jurisdictional defect does not affirmatively appear on face of record, Section 2-1401(e) protects bona fide purchaser's rights in the property, as well as interests of MERS and successor in interest to Plaintiff.Court properly dismissed Defendant's petition. (HUTCHINSON and JORGENSEN, concurring.)

In mortgage foreclosure action, court entered order approving sale of property in favor of bank. Defendant had entered into a loan modification agreement with Plaintiff. Court should have conducted evidentiary hearing as to status of Defendant's loan modification prior to confirming the sale, as there is a question as to whether parties entered into a loan modification agreement. As deed conveying title to the property was executed after confirmation of sale and recorded by Recorder of Deeds, title to property has vested by deed to a 3rd party, and thus Defendant's claim is barred. There is sufficient evidence to warrant a hearing as to the proper amount of the surplus, and remanded for purpose of conducting a hearing on that issue. (GORDON and BURKE, concurring.)

Court properly entered orders granting summary judgment, statutory damages, and attorney fees against purchaser of a foreclosed Chicago apartment, on the existing tenant's claim that new owner failed to comply with ordinance requiring it to offer relocation assistance or to continue the tenancy within 63 days of acquiring the property. Ordinance required that new owner should have made offer by the 63rd day of taking ownership, but it did not make offer until its 187th day of ownership. Tenant did not make an express waiver of her right to damages and fees. Tenant's fee request was supported by affidavits as to tasks performed by her attorney.(ELLIS and HOWSE, concurring.)

In 2006, MERS, acting as nominee for original mortgage lender, filed release and satisfaction of 2006 mortgage agreement, and later recorded a certificate of error as to release and satisfaction. In 2010, MERS assigned lender's interest, and assignee then filed foreclosure complaint. Eight years later, court resolved cross-motions for summary judgment. Court properly denied Defendant's motion for judgment on the pleadings and motion for summary judgment due to the existence of material disputed facts. Court erred in granting summary judgment for lender due to existence of disputed material facts. Court's subsequent orders are thus vacated. Remanded with directions for trial court to reach the merits of Defendant's motion for leave to file a 2nd amended answer and affirmative defenses. (CARTER, concurring; HOLDRIDGE, concurring in part and dissenting in part.)

(Court opinion corrected 6/23/20.) Plaintiff filed mortgage foreclosure complaint. After Defendant failed to appear, court entered default judgment of foreclosure and sale. Plaintiff then bought property at a sheriff's sale, and then sold property to a corporation. More than 7 years after that sale, Defendant filed petition for relief from judgment, arguing that court did not obtain personal jurisdiction because he was served in Cook County without a court-appointed special-process server to serve in Cook County. Court properly determined that corporate purchaser's property rights were protected by Section 2-1401(e) of Code of Civil Procedure, because no jurisdictional defect as to the summons was apparent from the face of the record. Supreme Court Rule 101(d) does not require exact compliance with the summons form provided, but requires that it be substantially adopted. The special-process server's affidavit does not state whether Defendant was served in Cook or Du Page County, and thus affidavit does not establish a jurisdictional defect on its face. Corporate purchaser's mortgage lender was entitled to bona fide-purchaser status and the protections of Section 2-1401(e). (ZENOFF and HUDSON, concurring.)

(Court opinion corrected 6/24/20.) Plaintiffs, all individual owners of condominium units, filed suit, contending that Defendants breached their fiduciary duties toward them, after approval of forced bulk sale of units under section 15 of Condominium Property Act. The common law of fiduciary duty remains in full force and applies to bulk sale of condominiums under section 15. Condominium association board members owe a fiduciary duty to other unit owners. If proved, Plaintiffs' allegations that Defendants used their control of the HOA Boards to effectuate bulk sales to a buyer that they also controlled on terms that disadvantaged the Plaintiffs could be a breach of fiduciary duty. Business judgment rule does not support dismissal of complaint.Court erred in holding that rescission was unavailable as a matter of law. However, the passage of time (as closing occurred more than 1 year ago) makes rescission less equitable, and punitive damages can be appropriate means of release. Thus, court did not err in dismissing count for rescission. (ZENOFF and JORGENSEN, concurring.)