Real Estate Law

In mortgage foreclosure case, after sheriff's sale, Plaintiff bank filed motion to vacate sale, alleging that it had made an error in calculating amount of judgment; court granted motion to vacate.  Court erred in imposing Rule 137 sanctions against Plaintiff for having given court various explanations of nature of its mistake, as the "real reason" for his motion to vacate sale was not material. As court had not granted high bidder's motion to intervene, it could not enter nunc pro tunc order awarding him attorney fees, and he was not entitled to seek Rule 137 sanctions.(JORGENSEN and SPENCE, concurring.)

(Court opinion corrected 12/16/15.) Plaintiff filed mortgage foreclosure complaint, and during pendency of proceedings it assigned mortgage and allowed leave to amend to name assignee as Plaintiff.  Court properly granted summary judgment for Plaintiff and confirmed judicial sale. No impropriety, prejudice or surprise in assignment. Affidavit of Plaintiff’s default loan specialist, attesting as to amount due and owing, was sufficient as it attested to affiant’s personal knowledge and personal review of records. Adequate foundation as business record was established. (McDADE and CARTER, concurring.)

Court properly entered summary judgment for lender in foreclosure of separate mortgage loans taken in 2007 and 2008 by three LLCs and personally guaranteed by one person. Bank's motion and supporting affidavits and order of foreclosure and sale were greatly detailed.  Affidavit of loan officer satisfies Rule 191 because, as a whole, affidavit indicates personal knowledge and allows reader to reasonably infer that affiant could competently testify to its contents at trial.(HOWSE and ELLIS, concurring.)

An order issuing a tax deed is not void and subject to collateral attack because of failure to include address and phone number of county clerk in publication and certified mail take notices that were required to be sent to the delinquent owner prior to the issuance of the tax deed. Due process standards were not violated where certified mail notices to the owner were returned unclaimed. Whether the unclaimed notices included address and phone number of county clerk has nothing to do with whether notices were reasonably calculated to reach respondent. Alternative relief may be available to estate of deceased former owner of properly under indemnity provisions of Tax Code. (GARMAN, FREEMAN, KILBRIDE, KARMEIER, BURKE, and THEIS, concurring.)

Under Section 9(g)(3) of Condominium Property Act, the payment of postforeclosure sale assessments formally approves and makes certain the cancellation of the condominium associations's lien, and extinguishment of the lien is confirmed by payment of postforeclosure sale assessments.Plain language of the Act and Foreclosure Law may be reasonably construed together to provide a process to extinguish and confirm the extinguishment of condo association's lien. Defendant bank, which purchased condo unit at judicial foreclosure sale, failed to confirm the extinguishment of condo association's lien for prior owner's unpaid assessments, and thus court properly granted summary judgment for condo association. (GARMAN, FREEMAN, THOMAS, KARMEIER, BURKE, and THEIS, concurring.)

Plaintiff obtained a judgment against a corporation that was dissolved afterward. Defendant's sole asset, a building in Chicago, had been sold to a purchaser, that later resold it to another company. After bench trial, court granted turnover order against final purchaser, holding that it was responsible for Defendant's debts. On remand, based on evidence from original hearing, trial court found that initial purchaser was a "straw man" and that the two sales were in reality one prearranged transfer from first to second purchaser, undertaken to avoid the judgment debt to Plaintiff. Court's findings were not against the manifest weight of the evidence, and court correctly granted Plaintiff the requested turnover order, as court reasonably relied on evidence from which a reasonable inference was that the two transactions were really one. (McLAREN and BIRKETT, concurring.)

Mechanics Lien Act does not restrict the availability of liens for architects, engineers, land surveyors, or property managers to services performed only for the raising, lowering, or removal of a house, and can include services done for the purpose of improving property. Resolution of issue as to whether owner of property at time contract for services was entered into knowingly permitted developers to enter into contracts regarding the property involves genuine issues of material fact, and thus summary judgment is precluded. (FREEMAN, THOMAS, KILBRIDE, KARMEIER, BURKE, and THEIS, concurring.)

Plaintiff bank was granted judgment for foreclosure and sale. After sale, bank moved to confirm the same. Foreclosure judgment stipulated that a deficiency judgment would be granted only where Defendant's "liability has not been discharged in bankruptcy." Defendant never appeared before the court had provided no evidence that debt had been discharged in bankruptcy. Requiring that Plaintiff prove the debt not discharged in bankruptcy would constitute an improper shifting of the burden of proof. Court's insistence that Defendant provide "further documentation was contrary to statute.(CARTER and O'BRIEN, concurring).

Plaintiffs sued title insurance company seeking declaration that it was obligated to defend them in underlying action filed by Plaintiffs' neighbors who sought to prevent Plaintiffs from placing improvements on an easement for access to their property.Plaintiffs raised at least the possibility of coverage under the policy, thus triggering Defendant's duty to defend. Failure to provide ingress and egress to a property can render title unmarketable. Underlying suit placed at issue whether easement could actually be conveyed, and thus placed at issue marketability of Plaintiffs' title.(BURKE and SPENCE, concurring.)