Real Estate Law

Defendant, a real estate broker, listed space in condominium building as a nonexistent zoning designation, supposedly commercial, and told Plaintiff that space could host a grocery store. After Plaintiff purchased the space, he learned it had been zoned residential. Court erred in granting summary judgment for Defendant on Consumer Fraud Act and Real Estate License Act claims, as those claims do not require proof of reliance. Court erred in granting summary judgment on negligent misrepresentation and common law fraud claims, as Defendant made material misrepresentations of fact, and not of law. Plaintiff may ask the trial court to reconsider its interlocutory order barring his damages evidence. (LAVIN and PUCINSKI, concurring.) 

Court entered default judgments of foreclosure. Defendants argued that judgments were void because record does not reflect that court clerk mailed Defendants a copy of the published notice at address listed in affidavit that Plaintiff prepared in support of service by publication. Records on appeal are insufficiently complete to support Defendants' claims of error. The absence of a clerk's certificate from the record does not, of itself, show a failure to comply with mailing requirement of Section 2-206(a) of Code of Civil Procedure, as proof of mailing may take the form of other documentary evidence and testimony. (ZENOFF and BURKE, concurring.)

Consolidated appeals arising form court order granting specific performance on 2 real estate purchase contracts in which, after bench trial, court found that Plaintiffs were entitled to purchase properties pursuant to purchase contracts and entitled to monetary damages. In later proceedings, court found that intervenor bank had issued several mortgages on properties that had priority over purchase contracts. Plaintiffs were entitled to specific performance of contracts at the lowered purchase price and entitled to damages caused by Defendant's delay in performing. Plaintiffs did not terminate this right by failing to close on the court-set closing date, where  an objectionable pro forma title policy was presented on day of closing. Intervenor's mortgages had priority over Plaintiffs' interest based on doctrine of conventional subrogation. Extent of subrogation was limited to amounts of construction loans. Purchase price should have been abated to full extent of Plaintiffs' judgment against Defendant. (REYES and BURKE, concurring.)

Plaintiff, an assignee of the mortgagee, filed mortgage foreclosure complaint, alleging that mortgagor had not paid on the mortgage (which was a 2nd mortgage) for 10 years. Defendant filed a 3rd-party complaint against his bankruptcy attorneys for legal malpractice for having failed to timely seek a discharge of the subject mortgage. Third party claims are all claims against attorneys arising out of actions or omissions in performance of professional services. Thus, the 2-year statute of limitations of section 13-214.3 of Code of Civil procedure governs.  Court erred in not granting Defendant leave to amend his 3rd-party complaint as malpractice may have continued beyond date originally stated, and also to include allegations of equitable estoppel.(McDADE and WRIGHT, concurring.)

Court entered order, after bench trial, awarding Plaintiffs $67,336 for attorney fees, costs, and expenses in their action alleging violation of Residential Real Property Disclosure Act. Court found Defendant liable on claim for common-law fraud, but found in favor of Defendant Lau on their claim under the Act. Thus, as a matter of law, Defendant Lau was not liable for payment of Plaintiffs' attorney fees. Although court found that Defendant Chan violated the Act, Plaintiffs failed to prove that they incurred legal fees in prosecution of their claim, and failed to introduce any competent evidence of the reasonableness of the fees they were awarded. Portion of award for attorney's fees is vacated. (ROCHFORD and LAMPKIN, concurring.)

Plaintiff filed mortgage foreclosure action against 2 Defendants, alleging that its mortgage, although recorded after the mortgage held by 2 other Defendants had priority because it was intended and used to pay off at least in part 2 mortgages that had been recorded prior to that mortgage. Subsequent conduct of Defendants does not negate the clear intent of their agreement with their lender that lender would be subrogated to the rights of the 2 senior lenders to the extent of its loan to them, and there was no unfair prejudice to other 2 Defendants.(BIRKETT and McLAREN, concurring.)