Real Estate Law

A wholly owned subsidiary of a mortgagee that purchases condo at foreclosure sale is considered a "mortgagee" under the Condominium Property Act so that a third party who later purchases the condo from the subsidiary becomes liable for the payment of 6 months of delinquent assessments under Section 9(g)(4) of the Act. (FITZGERALD SMITH and LAVIN, concurring.)

(Court opinion corrected 1/14/16.) Defendant was convicted, after severed but simultaneous bench trials with a co-defendant, of armed robbery.  (Co-defendant filed separate appeal.) State failed to present evidence that Defendant was armed with a gun that had weight or composition (metallic nature) of a dangerous weapon. Evidence presented by the State failed to prove, beyond a reasonable doubt, that the gun was a dangerous weapon because it could be used as a bludgeon. Remanded for entry of judgment of conviction for robbery and for appropriate sentence. (PIERCE and HYMAN, concurring.)

(Court opinion corrected 1/8/16.) Plaintiff entered into real estate contract for purchase of residence in Chicago.  After completing purchase, Plaintiff searched County Recorder of Deeds and discovered that property was part of a historical district, pursuant to ordinance enacted in 1982. Plaintiff made claim with title company that ordinance was an encumbrance on title. Court properly denied Plaintiffs’ oral motion to amend, as it was made at same hearing but after court granted Defendants’ motion for dismissal with prejudice, as dismissal was a final judgment and Plaintiffs had no statutory right to amend. Court properly dismissed with prejudice counts against sellers, as they were not required under ordinance to post landmark identification on the property. (LIU and CONNORS, concurring.)

(Court opinion corrected 1/7/16.) A person who provides a traditional home-equity mortgage on her home as security for a loan, even though she is not a party to the loan itself, is entitled to a notice of a right to rescind the mortgage under the federal Truth in Lending Act (TILA). (McBRIDE and COBBS, concurring.) 

(Modified upon denial of rehearing 12/31/15.) Court dismissed claims that various parties involved in design, construction and sale of condominium complex completed in 2004 breached implied warranty of habitability by incorporating latent defects into the units and common elements. Limited warranty language in purchase agreement, containing disclaimer for implied warranties, including implied warranty of habitability, was conspicuous and sufficient as a matter of law to bring the waiver to the buyer's attention, and is thus an effective disclaimer. Seller was not required to verbally call warranty disclaimer to each buyer's attention, or to have each buyer initial it. (PALMER and GORDON, concurring.)

Court entered judgment in favor of condo association, and found that agreement with a third-party management company was void because its terms exceeded condo association board's authority. Agent/fiduciary of board should have been aware of the contract limitations in bylaws but was not.  Provision in the condo association bylaws, limiting the board to entering into contracts for no more than 24 months, rendered contract with property management company for 36 months void.  (McBRIDE and HOWSE, concurring.)

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.)