Real Estate Law

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.)

(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.)