Real Estate Law

Section 15-1504.1 of Code of Civil Procedure created a $50 filing fee for residential mortgage foreclosure cases.Sections 7.30 and 7.31 of the Illinois Housing Development Act Act created programs funded by the fee created in section 1504.1. These statutes violate the free access clause because the $50 fee unreasonably interferes with foreclosure litigants' access to the courts. There is no rational basis for imposing this filing fee on mortgage foreclosure litigants, while excluding other classes of taxpayers from the burden. The $50 filing charge is not a "fee" but a litigation tax, and it has no direct relation to expenses of a petitioner's litigation and no relation to the services rendered, but is assessed solely to raise revenue for the Foreclosure Prevention Fund and the Abandoned Residential Property Fund. (A. BURKE, GARMAN, M. BURKE, and OVERSTREET, concurring; THIS, dissenting.)

Plaintiff filed amended complaint against its landlord, alleging that breach of a commercial lease prevented Plaintiff from using premises as it intended for a bakery and restaurant and caused it to lose more than $100,000 in renovations expenses. Defendant counterclaimed, was granted summary judgment, and was awarded back rent, late fees, and attorney fees. As Plaintiff admitted it was in breach of contract, it could not establish the element of performance of the contract by the plaintiff. As landlord did not have a contractual duty to perform or allow Plaintiff to perform structural modifications to any component of the black iron, there was no genuine issue of material fact as to whether landlord breached pertinent paragraph in the lease. Even in a commercial lease of premises that will be used for a specific purpose, there is no implied covenant that the premises are fit for that purpose. (HOWSE and BURKE, concurring.)

Plaintiff bank filed foreclosure action, but court granted summary judgment, finding that Plaintiff lacked standing. As a defense to Plaintiff's 2nd attempt to foreclose Defendants filed motion to dismiss on grounds that the previous decision bars the 2nd action. The current action does not arise from the same operative facts as the 1st action. Defendants' defaults subsequent to the 1st action bar the application of res judicata. Defendants failed to present evidence to create a genuine issue of material fact as to their claim that the assignment of mortgage and note was fraudulent. (DAUGHERITY and HOLDRIDGE, concurring.)