Real Estate Law

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.)

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.)