Real Estate Law

Plaintiff filed mortgage foreclosure complaint against Defendant homeowner, who filed affirmative defenses and counterclaims seeking rescission of loan and statutory damages under Truth in Lending Act (TILA). Court erred in entering summary judgment on rescission claim, as a question of fact remains as to whether homeowner had 3 days or 3 years to rescind. Genuine issue of material fact exists as to whether she received required disclosures pursuant to TILA. Counterclaim is limited by language in section 1640(e) of TILA allowing for an untimely claim ony if brought as a set-off or recoupment. Thus, counterclaims brought under section 1640(e) cannot survive dismissal of primary complaint. (PIERCE and MIKVA, concurring.)

(Court opinion corrected 1/16/18.) City sought to enforce an in personam money judgment against Fannie Mae for amount City expended to demolish certain property which Fannie Mae had owned briefly after purchasing it at foreclosure sale.  Procedure which City used to obtain its judgment did not comport was a mispapplication of enforcement procedures of Unsafe Property Act. The Act does not provide for filing of a motion for judgment by a municipality, but instead requires municipality to pursue either foreclosure of its demolition lien or a separate civil action against those owners whom it seeks to hold personally liable.  (NEVILLE and HYMAN, concurring.)

Dispute as to validity of a personal guaranty purportedly executed by Defendant in connection with lease of commercial property between Plaintiff and Defendant. After remand, case went to bench trial, where Plaintiff presented testimony of 1 witness, Plaintiff’s principal. Court granted Defendant’s motion for directed finding after Plaintiff rested its case in chief.  Court’s conclusion that Plaintiff could not establish a prima facie case was not against manifest weight of evidence, where testimony of Plaintiff’s principal established that guaranty and lease agreement were 2 separate transactions, requiring new consideration for the guaranty, and court found that lease had been fully executed prior to guaranty being presented to Defendant.  (BURKE and McBRIDE, concurring.)

Plaintiff filed claims for breach of contract and breach of fiduciary duty against attorney who served as escrow agent in real estate transaction in which Plaintiff was the buyer and attorney's client was the seller.  Plaintiff alleged that attorney violated escrow agreement when he released a $100,000 down payment to seller without letter from Plaintiff certifying that all relevant conditions precedent had occurred or been expressly waived by Plaintiff. Court properly granted summary judgment for attorney, finding that escrow agreement contained exculpatory clause making him liable only for willful misconduct or gross negligence, and that Plaintiff had not pleaded or submitted any evidence of such conduct. Attorney met his initial burden of production on his affirmative defense, and presented sufficient evidence that even if he breached parties' agreement, he did so in a reasonable interpretation of his duties under agreement. (PIERCE and SIMON, concurring.)

Court granted Forest Preserve District's motion for summary judgment on complaint to foreclose a mortgage on land company owned which was purportedly leased to Plaintiff.Reversal of foreclosure judgment voids sale of property to District. Thus, District was left with no present right to evict Plaintiff from the property. Order awarding District possession of property is reversed and remanded, and eviction proceedings are stayed pending a resolution of foreclosure proceedings.(PUCINSKI and HYMAN, concurring.)

Court approved foreclosure sale of Defendant’s property. Section 15-1502.5 of Illinois Foreclosure Law was a special remedial measure that was expressly repealed by Illinois legislature.  Thus, grace period notice which that Section had required is no longer required, and cannot serve as basis for reversal of court’s approval of foreclosure sale. (LAMPKIN and ROCHFORD, concurring).

Plaintiff filed foreclosure complaint in 2010 to foreclose a property against property owner and co-signer of mortgage dated 11/2007. The Residential Mortgage License Act was applicable to the original mortgagee, but as a result of the amendment to the Act effective 7/23/15, an exception to the law-of-the-case doctrine applies. Amendment plainly states an intent to give the amendment maximal retroactive effect. A change in statutory law is an exception to the law-of-the-case doctrine. Current public policy in Illinois does not require that the original mortgagee must forfeit any lien if its wholly-owned subsidiary, into which it was merged, lacked a needed license. (HUTCHINSON and SPENCE, concurring.)

Plaintiff bank, as owner trustee, filed foreclosure suit against Defendants. The note attached to original complaint showed on its face that it was not indorsed to Plaintiff. Defendants made a prima facie showing of a lack of standing, and Plaintiff failed to rebut it. As assignment of debt to Plaintiff must have occurred after foreclosure complaint was filed, assignment of mortgage did not give Plaintiff the rights of a holder, and Plaintiff lacked standing at the time complaint was filed. (McLAREN and SCHOSTOK, concurring.)

Court erred in granting summary judgment for Plaintiff on its complaint for breach of contract and unjust enrichment. A single-count complaint, requesting foreclosure of mortgage and a personal judgment for any deficiency, involves operative facts arising from mortgage and promissory note. Plaintiff’s predecessor in interest filed a single-count foreclosure complaint, which was later voluntarily dismissed. For purposes of res judicata, same set of operative facts gave rise to causes of action in foreclosure complaint and breach of note complaint, and latter action was an improper 2^nd refiling in violation of Section 13-217 of Code of Civil Procedure.  (PIERCE and MIKVA, concurring.)

Petitioner purchased property taxes, and after redemption period expired, he filed a petition for a tax deed for the property, which court granted. After Petitioner obtained and recorded his tax deed to property, he filed a motion for sale in error, which court properly dismissed. A tax deed is incontestable except in very limited circumstances. Dismissal of motion for sale in error honors the finality and marketablility of tax deeds, and furthers public policy of insuring stability of titles to real estate. (CARTER, concurring; HOLDRIDGE, specially concurring.)