Real Estate Law

(Court opinion corrected 6/24/20.) Plaintiff Bank, as successor by merger, filed mortgage foreclosure complaint. When Defendant failed, in her answer, to deny the deemed allegation that Bank had sent her all proper notices, she forfeited the issue of whether Bank failed to comply with a condition precedent in the mortgage contract. Plain language of mortgage indicates that a notice of acceleration was not required, because Defendant breached her duty to make timely mortgage payments, Court properly entered summary judgment for Plaintiff. (BIRKETT and ZENOFF, concurring.)

Plaintiff, which had a reverse mortgage as to long-time homeowners, filed foreclosure action, and court entered default judgment of foreclosure and sale; Plaintiff was then the successful bidder at foreclosure sale, and deed to property was executed in favor of Plaintiff. Court denied homeowners' Section 2-1401 petition for relief from judgment. As there was no extrinsic fraud that deprived the circuit court from acquiring valid jurisdiction, foreclosure judgment was not void ab initio, as section 15-1509(c) of Foreclosure Law bars homeowners' claims. The vesting of title by deed pursuant to section 15-1509(b) is an entire bar of all claims of parties to the foreclosure. (CUNNINGHAM and CONNORS, concurring.)

Court entered order directing issuance of a tax deed; and then Petitioners filed a 2-count pleading against 2 persons and their successors in interest, seeking to declare tax deed void under section 22-85 of Property Tax Code. Court properly granted Respondents' motion to dismiss. Section 22-45 of Property Tax Codew explicitly provides that a tax deed is incontestable except in 3 specifically enumerated categories, and Petitioners' count I (motion per section 22-85) does not fall into any of those categories. Court properly dismissed count II (section 2-1401 petition), as Petitioners did not have an interest in the property when they filed her petition, as they had already quitclaimed their interest in the property (a mineral interest) 2 years prior to the Petition. (OVERSTREET and BOIE, concurring.)

Court erred in entering summary judgment for Defendant corporation on complaint for possession of condominium and for monetary damages, attorney fees and costs for breach of contract.Defendant had purchased condo at a foreclosure sale which was confirmed by circuit court.Defendant paid post-sale assessments for condo for 3 months, starting in the month after the foreclosure sale. This payment confirmed the extinguishment of any lien on condo. When a judicial sale purchaser complies with provisions of section 9(g)(3) of Condominium Act by paying the common expense assessments for the unit beginning in the month after the foreclosure sale, "any lien" created by section 9(g)(1) is extinguished, at which point a condo associations's only right to recover payment for pre-foreclosure expenses from a non-mortgagee purchaser is pursuant to section 9(g)(4) of the Act. Defendant was thus obligated to pay the unpaid common expenses for 6 months prior to filing of foreclosure action, which include the attorney fees "incurred" arising out of homeowners' default in payment of monthly assessments. Costs for repair of condominium were incurred by association after the institution of its foreclosure action and thus are not part of the common expenses for the 6-month period. (ROCHFORD and DELORT, concurring.)

(Court opinion corrected 5/7/20.) Court did not err in dismissing Defendants' Truth in Lending Act (TILA) counterclaim in mortgage foreclosure action on basis that they failed to file within 1 year. As Defendants were seeking relief under section 1635, the rescission enforcement action is inextricably intertwined with the TILA damages claim that is expressly covered by the 1-year statute of limitations. (MIKVA and HARRIS, concurring.) 

Plaintiff bank filed mortgage foreclosure complaint, and issued summons from Kankakee County, listing Defendant's residence in Kankakee County. Court entered default judgment for failure to file an answer and failure to appear. Defendant filed notice of appeal but voluntarily dismissed it. Seven months after confirmation of foreclosure sale, Defendant filed a Section 2-1401 petition challenging judgment as void. A duly licensed or registered private detective may serve process, without special appointment, anywhere in Illinois so long as the summons was issued from a county with a population less than 2 million. A registered detective served Defendant, in Cook County, with process 14 days after summons issued from Kankakee County, which has a population less than 2 million. Thus, court had personal jurisdiction over Defendant to enter default judgment, and judgment is not void. (HOLDRIDGE, concurring; SCHMIDT, specially concurring.)

Plaintiff and Defendants owned lots in neighborhood association subject to certain restrictive covenants, including the right of first refusal when a neighboring lot owner sells. Defendant owners received offer to purchase their 2 back-to-back lots from 2 buyers, and transferred both lots to them by warranty deed. One week after the closing, broker notified Plaintiff of the closing and advised that the 2 lots were sold as a package deal. Plaintiff then made a counteroffer to buy 1 of those lots "at market value." Notice provided to Plaintiff contained material terms sufficient for her to exercise her right of 1st refusal. Counteroffer contained different terms, so Defendant owners were not obligated to accept it. Plaintiff filed complaint against Defendant, buyers, and neighborhood association, contending that she had a right of first refusal as to the sale that was not honored. Buyers filed 3rd-party complaint against realtors for indemnification. Court properly found that no genuine issue of material fact existed and granted partial summary judgment on 3 counts. (LYTTON and McDADE, concurring.)

Plaintiff filed foreclosure complaint; court entered default judgment against Defendants, and property was sold through a judicial sale. Court denied Bank's section 2-1401 motion to dismiss Defendants' petition for relief from judgment. Court properly granted the motion of purchasers of property to dismiss the section 2-1401 petition on the basis of estoppel, due to Defendants' surrender of the property in bankruptcy and the discharge of their debts therein.  DFefendants' position in bankruptcy and the benefit of the discharge effectively served to preclude their pursuit of relief from judgment in the foreclosure, as they no longer held any legal or equitable interest in the property. (SCHOSTOK and BRENNAN, concurring.)