Real Estate Law

Existing tax and insurance defaults are part of the core of operative facts of a foreclosure complaint, as they relate in time, space, and origin to the other payment defaults alleged in an ordinary foreclosure case. The current foreclosure complaint is the first refiling to include portions of the alleged defaults postdating the dismissal of the first complaint but predating the filing of the second complaint. Thus, the allegations as to the alleged defaults are not barred by the single refiling rule. It was error to dismiss the complaint, as the section 2-619 motion to dismiss did not raise a defense to the complaint as a whole or to the entirety of any specific claim. (McLAREN and ZENOFF, concurring.)

Plaintiffs, prospective purchasers, filed suit for breach of contract and common law fraud for failed residential real estate transaction.Wife had executed, but never recorded, quitclaim deed adding her spouse as owner of property. Husband refused to sign contract unless Plaintiffs agreed to a higher price and on a later closing date. Closing did not occur. Grantor of real estate need not have title when contract is made. Wife thus breached her obligation to provide good and merchantable title by recordable warranty deed. Court entered judgment against wife in breach-of-contract claim, as she was bound by the contract. Court entered judgment for Sellers on fraud claim. Court properly denied Sellers' petition for attorney fees, as Sellers failed to provide a record sufficient to support their claim. Court properly entered judgment for Plaintiffs for attorney fees and costs. (ZENOFF and HUDSON, concurring.)

Court entered order approving sale in mortgage foreclosure action. Plaintiff's description of improvements of real estate, in public notice of sale, provided prospective buyer with enough information so as to allow them to perform their due diligence. Even if description were viewed as defective, it was not a material error. Defendant failed to show that property sold for significantly less than its value, and thus failed to show good cause under section 15-1508(d) of Mortgage Foreclosure Law so as to have sale held invalid or set aside.  (GORDON and BURKE, concurring.)

In mortgage foreclosure action, court approved sale in favor of Plaintiff bank. As deed to property subsequently vested to a 3rd party, under section 15-1509(c) of Foreclosure Law, court properly confirmed sale of property although court should have conducted evidentiary hearing on question of whether parties entered into a loan modification agreement. Remanded for court to conduct a hearing to determine correct amount of surplus. (GORDON and BURKE, concurring.)

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.)