Real Estate Law

In mortgage foreclosure action, Defendant homeowner filed affirmative defenses and counterclaims seeking rescission of the loan and damages pursuant to Truth in Lending Act (TILA). Upon remand, court held evidentiary hearing and entered judgment for Plaintiff. Defendant failed to make a payment on the due date of her mortgage loan, and 12 days later sent Plaintiff a notice of rescission pursuant to TILA asserting that Plaintiff failed to comply with TILA's disclosure requirements, and that she was entitled to rescind the loan. Court properly granted summary judgment for Plaintiff on Defendant's statutory damages claims as time-barred and not preserved by Section 13-207. Court found Defendant's testimony "to be discountable as not credible" and that she did not meet her burden of proving that she received only one copy of the Notice of Right at the closing.  Defendant's testimony at deposition differed significantly from her hearing testimony. Court's conclusion that Defendant was not credible is not unreasonable. (MIKVA and CUNNINGHAM, concurring.) 

Court granted Defendant homeowners' motion to dismiss bank's mortgage foreclosure action for violating the single-refiling rule of section 13-217 of Code of Civil Procedure. After Defendants defaulted by failing to make a 2008 payment, bank sent them a notice demanding payment advising they could cure default by paying total amount due within 30 days, which Defendants failed to do. Bank then accelerated the note and filed suit. Bank later filed an action which arises from the same set of operative facts as prior suits, because bank accelerated the note no later than the date it filed 2nd action, Defendants never made any payments after their default, underlying note and mortgage never changed, note was never reinstated, and bank sought the same principal amount in prior filings which it voluntarily dismissed.   (ROCHFORD and DELORT, concurring.)

Court granted summary judgment and ordered specific performance of a commercial real estate purchase agreement in favor of Plaintiff. While Defendant's appeal in that case was pending, court allowed another person (Cindy) to file an intervention complaint and she also filed a foreclosure suit against both parties, but court dismissed both of those actions. Cindy knowingly aided Defendant's encumbrance of the real estate, an act in derogation of the representations in the purchase agreement. Cindy's interests do not take priority over Plaintiff's interest, and Cindy cannot evade lis pendens. Thus, court did not err by binding Cindy to her actual notice. Court properly dismissed Cindy's actions pursuant to doctrine of lis pendens. Facts alleged by Cindy do not support contractual or common law subrogation, and Cindy does not have any claim of an assignment.Court's decision to award Plaintiff reasonable attorney fees is affirmed as proper damages for Defendant's wrongful act of encumbering the real estate and requiring her to incur expenses in litigation with Cindy. (LYTTON and CARTER, concurring.)

Bank filed mortgage foreclosure complaint. On its own motion, court dismissed complaint without prejudice, finding that bank failed to present sufficient evidence that it complied with section 15-1503(b) of Mortgage Foreclosure Law requiring notice of foreclosure to alderman of ward where property is located. That section was later amended which provides that failure to send such notice results in a stay of the foreclosure action, to be lifted upon presentment of proof of delivery. This amendment is procedural and should be applied retroactively. (PIERCE and WALKER, concurring.)

Court entered judgment of foreclosure and order confirming subsequent judicial sale. Court properly ordered stricken all 6 amended affirmative defenses of Defendant Varan, as they contain unsupported allegations of law and fact. Court properly denied Varan's motion to strike Plaintiff's Rule 113 affidavit and granted summary judgment for Plaintiff. Affidavit was in substantial compliance with requirements of Rule 113. Varan failed to submit counteraffidavit contradicting allegations in affidavit. Defendant Fiandaca's notice of appeal only sought review of order denying him leave to vacate technical defaults and to file a counterclaim and order denying him leave to file response to Plaintiff's motion for summary judgment. These orders were not final, appealable orders under Rule 301. Thus,  Fiandaca's appeal is dismissed for lack of jurisdiction. (HOFFMAN and DELORT, concurring.)

Plaintiff filed petition to quiet title against Defendants. Court properly granted summary judgment for Plaintiff. Defendants failed to strictly comply with Section 12-101 of Code of Civil Procedure, as their 9/16/04 memorandum of judgment inaccurately stated that a default judgment was entered in their favor on 8/6/03, when actually the default judgment in favor of both Defendants became final on 3/29/04. The 9/16/04 memorandum of judgment was defective as it could not put prospective purchasers on notice that, at that time, the default judgment was nonfinal and entered only in favor of one Defendant. Defendants' 2/28/06 memorandum of judgment incorrectly identifies the amount of the default judgment,a nd thus Defendant failed to strictly comply with Section 12-101. (CARTER and HOLDRIDGE, concurring.)