Real Estate Law

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 Section 15-1502.5 of Illinois Foreclosure Law was a special remedial measure that was expressly repealed by Illinois legislature.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.)

Plaintiff filed forcible entry and detainer action seeking possession of condo unit and damages for withholding possession. Cause was continued several times, and Defendant Fannie Mae filed emergency motion for continuance of trial date but failed to appear for presentment of motion. Court ordered that original trial date would stand, and after bench trial entered judgment for Condo Association. Court properly denied motion for continuance as Defendant failed to show diligence in preparation for trial. Court properly found Defendant responsible for preforeclosure assessments, including delinquent late charges, by virtue of the fact that it failed to pay any postsale assessments so as to confirm extinguishment of condo association's lien on unit. (COBBS and PUCINSKI, concurring.)

Court erred in entering summary judgment in favor of plaintiff bank on its mortgage foreclosure complaint. Plaintiff's standing was established as a matter of law, but material questions of fact remain on whether Plaintiff complied with Section 203.604 of Code of Federal Regulations. Plaintiff sent Defendant, via Federal Express, a letter offering a face-to-face meeting. Tracking number on shipping label is not conclusive proof that letter was sent. (HUDSON, concurring; SCHOSTOK, specially concurring.)

As court had subject matter jurisdiction over proceedings, court's foreclosure judgment order was not void. Court did not abuse its discretion in denying appellant's motion to intervene, as it was not filed until after court's entry of order confirming sale, which order had effect of termination of foreclosure proceedings. (HOWSE and LAVIN, concurring.)

(Modified upon denial of petition for rehearing 9/15/17.) Court properly entered summary judgment against Defendants for violation of Residential Real Property Disclosure Act and common law fraud. In their Real Property Disclosure Report, Defendants claimed no knowledge of flooding or recurrent leakage problems in basement or defects in walls and floors. Plaintiffs alleged that within 24 hours of purchasing property, they experienced water infiltration in basement through walls and floors. Evidence was sufficient to satisfy each elements necessary to recover damages under the Act and under claim for common-law fraud, and findings were not against manifest weight of evidence. Remanded for evidentiary hearing on plaintiffs' petition for attorney's fees, as attachment of invoice is inadequate basis for finding of reasonableness. (ROCHFORD and DELORT, concurring.)