Real Estate Law

Service of process on Defendant in Cook County foreclosure action was improper, as no order was entered appointing a special process server.  Thus, court lacked personal jurisdiction over Defendant, and judgment was void.  However, jurisdictional defect does not affirmatively appear on face of the record. Service lists and affidavits of service would lead a reasonably prudent purchaser to conclude that service took place in DuPage County, thus permitting service by special process server without appointment by court. Thus, no basis in record to conclude that third-party purchasers, who purchased property later at sheriff's sale, were anything but bona fide purchasers under Section 2-1401(e) of Code of Civil Procedure, and their rights to the property were thus protected.(McLAREN and BURKE, concurring.)

Appellate court is without jurisdiction over appeal, because order from which Appellant appealed was not a final judgment, and Appellant provided no alternative basis which would allow this court to exercise jurisdiction over her appeal. The fact that Appellant , who failed to properly intervene in trial court proceedings, filed a motion, and the court ruled on it, cannot turn order into a final appealable judgment.(HOWSE and ELLIS, concurring.) 

Plaintiffs and Defendants are neighbors in subdivision in Winnetka.  Defendants own bechfront property and thus have unfettered access to beach year-round.  Plaintiffs, whose properties are not beachfront properties, have access to beach via beach easement, but access limited by gate installed by Village that is often locked. Plaintiffs filed suit seeking determination that they had a right to cross over Defendants' property to access beach so they would have unrestricted access.Court properly found that Plaintiffs failed to establish either express easement for ingress and egress over Defendants' property or existence of easement by prescription. Court properly entered judgment in Defendants' favor, after trial on Plaintiffs' claim of easement by necessity, finding that at time of original conveyance, a ready means of ingress and egress to beach existed that did not entail crossing over Defendants' property. Underlying disputes were not commenced for harassment purposes only, and court properly denied Defendants' Rule 137 motion for sanctions. (LAVIN and PUCINSKI, concurring.)

Bank filed counterclaim for declaratory judgment action, seeking declaration that it foreclosed certain "recapture rights" when it foreclosed on 2 parcels of real estate that were collateral for a defaulted loan.  Court properly granted summary judgment for plaintiff and counterdefendant developer, finding that recapture rights were personal property not subject to foreclosure. Recapture fees due to a developer pursuant to Section 9-5-1 of Illinois Municipal Code are not an interest in the benefited property and are not subject to foreclosure. Parties' settlement agreement and mutual release for consent foreclosure contained fee-shifting provision for attorney's fees to be awarded to prevailing party.  Court was within its discretion in awarding attorney fees to developer. (SCHOSTOK and BIRKETT, concurring.)

(Court opinion corrected 2/17/16.) Court entered summary judgment for Plaintiff in mortgage foreclosure action.  Plaintiff's prove-up affidavit of Plaintiff's vice-president, was sufficient to support summary judgment for the amounts due.  Affiant established that the record was made in regular course of business, and made at or near the time of the event or occurrence, which satisfied foundational requirements of Rule 236. Thus, court properly considered affidavit and attached loan documents and did not face issue of material fact as to amounts owing on loan. (ZENOFF and BURKE, concurring.)