Real Estate Law

Court's decision to rely on survey to establish boundary between parties, who owned neighboring residential parcels of lakefront property, is not against manifest weight of evidence.Plaintiff's surveyor located boundaries of Defendants' property, pursuant to legal description of the property, with reference to government survey monuments and a properly placed marker. Method used by surveyor who had previously done survey of Defendants' property appears arbitrary and inferior to alternative methods. (JORGENSEN and HUDSON, concurring.)

(Modified upon denial of rehearing 10/15/15.) Bank filed foreclosure action and named Plaintiff as a junior lienholder. Plaintiff defaulted, and bank purchased property at judicial sale. Title company purchased property and resold it. Service affidavits (showing personal service was unsuccessful, and service on Plaintiff was made via publication) on file in foreclosure action gave title company inquiry notice that Plaintiff's interest was not properly extinguished, and thus, complaint may not be dismissed on ground that title company was a bona fide purchaser. Service defect appears on face of record, so title company had inquiry notice of lack of personal jurisdiction over Plaintiff, and pending proceedings drew more attention to a potential defect in personal jurisdiction.(JORGENSEN and HUDSON, concurring.)

Court properly granted Defendants' Section 2-1401 petition to vacate agreed order and judgment entered in eminent domain action. Invalidity of 1991 ordinance, upon which condemnation action was premised, had been established as a matter of collateral estoppel. Meritorious defense of invalid ordinance was established, and Defendants' due diligence requirements were satisfied. Court within its discretion in not holding evidentiary hearing, given unique equitable circumstances of case and extensive volume of information and facts available to court during proceedings. (LIU and HARRIS, concurring.)

Lien priority dispute in mortgage foreclosure proceedings on residential property. Court erred in granting partial summary judgment in favor of junior lienholder bank whose mortgage, court ruled, had priority over other bank's mortgage. Bank did not lose its senior lienholder status because it did not have a recorded interest in the note at the time of the other bank's refinancing. The purpose of having MERS as the mortgagee is to allow repeated assignments of notes without recordation, as MERS continues to hold the mortgage. (SCHOSTOK and ZENOFF, concurring.)

Court entered two separate orders, in consolidated case, relating to mortgage foreclosure proceedings initiated by mortgage lender, which later assigned mortgage to servicing company. Court properly entered default order against one Defendant. Court properly entered order disbursing proceeds from sale of other Defendant's prior marital home to bank. A special process server is not required to serve an out-of-state Defendant. Purported deficiencies in process server's affidavit of service, including that server's license number and contact information were not included, and 8-year-difference in estimated age and Defendant's actual age, are irrelevant to determine validity of service. Court was not obligated to hold evidentiary hearing before ruling on fully briefed motions to quash service and to pay out the sale proceeds.(FITZGERALD SMITH and LAVIN, concurring.)

Plaintiff savings and loan company filed foreclosure action and submitted affidavit stating that process server personally served Defendant at her home. Court entered default judgment, as Defendant failed to file appearance. After property was sold, Defendant filed pro se petition to quash personal jurisdiction, claiming she was never served. Attorney for Defendant then filed amended motion to quash. Court properly struck amended motion, as Defendant failed to properly provide notice of this motion, and court properly denied Defendant's request for leave to amend motion, which was untimely filed as it was filed more than 30 days after denial of her pro se motion, and properly treated motion as a motion for reconsideration. Court properly confirmed judicial sale, as Defendant failed to corroborate by clear and convincing evidence her denial of service.(PIERCE and SIMON, concurring.)

Mortgage company's sale of mortgage loan to Plaintiff loan servicing company, between date judgment of foreclosure was entered and date sale was conducted, without substituting it as Plaintiff until after date of sale, does not entitle homeowner to relief from order confirming judicial sale of residential property. The fact that loan servicing company had not yet been substituted in caption of foreclosure complaint as Plaintiff had no effect on manner in which sale was conducted. (HYMAN and PUCINSKI, concurring.)

Bank filed complaint against trustee to foreclose adjustable rate home equity conversion mortgage (also known as "reverse mortgage") and adjustable rate note secured on condominium held by land trust which was principal dwelling of consumer, now deceased, who had entered into mortgage and note. Trustee filed answer and counterclaim, seeking to rescind mortgage, alleging violations of Truth in Lending Act (TILA). Court erred in granting motion to dismiss counterclaim. Reverse mortgages are consumer credit transactions covered by TILA. Under Regulation Z, enacted by Federal Reserve Board to carry out purposes of TILA, right to rescind extends to each consumer whose ownership interest is or will be subject to security interest or is subject to risk of loss. Trustee of land trust is a consumer, whose ownership interest is subject to security interest. Thus, trustee was entitled to TILA disclosures and has the right to rescind the transaction. When a consumer timely exercises its right to rescind a consumer credit transaction through proper notice to creditor, a sale of property does not terminate a consumer's right to rescind. (GARMAN, FREEMAN, THOMAS, KILBRIDE, KARMEIER, and THEIS, concurring.)

Section 15-1504.1 of Code of Civil Procedure imposes a $50 filing fee in residential mortgage foreclosure cases, 2% of which is retained by clerk of court in which complaint is filed. Section 15-1504.1 does not violate judicial fee officer prohibition in Article VI, Section 14, of Illinois Constitution. Fee officer prohibition was aimed at officers who had a direct role in adjudicative process of court system, and were compensated for their services through payment of fees taxed to the litigants. Clerks of court are nonjudicial officers, and perform no adjudicative or quasi-judicial function, and thus do not fall within ambit of fee officer provision of Illinois Constitution. (GARMAN, FREEMAN, THOMAS, KILBRIDE, KARMEIER, and BURKE, concurring.)