Real Estate Law

Court properly granted summary judgment for Plaintiff Bank and entered judgment for foreclosure and sale against Defendant homeowner. Defendant's Motion to Vacate Judgment was filed after completion of judicial sale and filing of Bank's motion to confirm sale. To vacate both sale and judgment of foreclosure, borrower must do more than merely raise meritorious defense to underlying foreclosure complaint. Record does not show that Bank prevented Defendant from raising meritorious defense of fraud, or that "justice was not otherwise done". (CARTER and LYTTON, concurring.)

Bank sought judgment of foreclosure of $3.5 million; request did not include $500,000 tax payment Bank had made one month prior. Court granted judgment, and property went to sheriff's sale, at which Bank was sole bidder, bidding amount equaling judgment plus subsequently accruing costs, leaving no deficiency. Court properly denied Bank's request to collect deficient judgment for prejudgment tax payment from Defendant-guarantors. Sheriff conducted sale according to judgment of foreclosure, and Bank could have but did not amend judgment, to include tax payment, prior to sale. Section 15-1512 of Mortgage Foreclosure Act does not state that mortgagee is always entitled to reimbursement for prejudgment tax payments, but discusses order in which sale proceeds will be applied. (McLAREN and ZENOFF, concurring.)

Lack of standing is an affirmative defense to mortgage foreclosure case. Court erred in striking affirmative defenses at pleading stage, as that prevented Defendants from taking discovery on possible defenses. Defendant homeowners were improperly denied opportunity to mount meaningful defense to foreclosure action because plaintiff bank failed to produce records relied on by bank's vice-president of loan documentation, who signed affiidavit in support of bank's motion for summary judgment, and bank refused to produce affiant for deposition. (NEVILLE, concurring; LIU, dissenting.)

Bank filed foreclosure action, after sending homeowners acceleration letter. Court properly denied homeowners' Section 2-619 motion to dismiss, as acceleration notice was sufficient, under terms of acceleration clause in mortgage. Amount owed on loan changes daily due to interest accrual, and omission of specific dollar amount owed is unavoidable consequence of ability of borrowers to cure default during 30-day window of time, rather than only on specific day.(CUNNINGHAM and CONNORS, concurring.)

In mortgage foreclosure action, court erred in granting bank's motion for summery judgment. As Defendant homeowner claims that his property was used as his primary residence and required notice was not given, genuine issue of material fact must be decided. Protections of Section 15-1502.5 of Mortgage Foreclosure Act are the same when multiple-dwelling structure has 6 or fewer units being used as residential units and when owner uses one unit as his primary residence.(PALMER and REYES, concurring.)

Plaintiff, who was guarantor of note, and mortgagor were found in default on mortgage; property was then foreclosed, and bank took possession of property. Plaintiff filed complaint for conversion and replevin, alleging that bank refused to allow Plaintiff to take possession of pharmaceutical manufacturing equipment that remained on property after bank took possession of it. Plaintiff's claims and foreclosure claim are essentially unrelated so that there can be no bar by prior judgment. Nothing in foreclosure judgment gave bank possessory interest in equipment superior to Plaintiff's interest.(BIRKETT and SPENCE, concurring.)

Court properly denied amended Section 2-1401 petition for relief from judgment of foreclosure as to her real property, filed by trustee of revocable living trust. Section 2-1401(e) of Code of Civil Procedure precludes a Section 2-1401 petition from affecting disposition of property transferred to a third party after entry of the challenged judgment. Section 15-1509(c) of Foreclosure Law limits the claims that may be asserted after judicial sale of foreclosed property. A Section 2-1401 petition which asserts numerous fact-dependent challenges must set forth allegations supporting existence of meritorious defense, due diligence in presenting defense, and due diligence in filing the Section 2-1401 petition.(DELORT and HARRIS, concurring.)

Court properly dismissed verified complaint with prejudice pursuant to Section 2-615 of Code of Civil Procedure. Section 20-20(a)(34) of Real Estate License Act, which prohibits an attorney from acting as both attorney and broker in same real estate transaction, does not violate special legislation, equal protection, or separation of powers clauses of Illinois Constitution. Reasonable justification for prohibition is to protect general public from representation that carries potential for conflict of interest. Court properly refused to allow Plaintiff to amend his complaint, as he previously stated to court that he only intended to raise facial challenge. (SIMON, concurring; PIERCE, concurring.)

Plaintiff filed declaratory judgment action seeking declaration that he had a 50% beneficial interest in two Illinois land trusts in which bank was trustee and Defendant possessed remaining beneficial interest. Plaintiff's claim is time-barred by statute of limitations period in Section 13-205 of Code of Civil Procedure. Evidence at trial showed that Plaintiff knew or should have known of the existence of his injuries outside of 5-year limitation period. Appropriate statute of limitations is determined by nature of liability, which is that Defendant's actions are not consistent with parties' alleged 1994 agreement to each receive a 50% beneficial interest in land trusts, which would give Plaintiff a 50% interest in powers and ownership rights accorded to beneficiary of an Illinois land trust.(DELORT and CUNNINGHAM, concurring.)