Real Estate Law

(Supplemental opinion entered 10/27/14.) Court entered judgment of foreclosure and sale in favor of bank. There were no affirmative defenses before court at time of summary judgment hearing. Court properly denied Defendants' motion to file amended answer and affirmative defenses after summary judgment was entered. Rescission is an affirmative defense which must be specifically pleaded. All claims for rescission are extinguished three years after consummation of transaction or upon sale of property, whichever occurs first, per Section 1635(f) of Truth in Lending Act. Appellate court imposed sanctions sua sponte per Supreme Court Rule 375. Defendants and their law firm each sanctioned $5,000 in attorney's fees and $1,752 in costs, for frivolous appeal, as Defendants attempted to relitigate merits of issues previously raised.(O'BRIEN and SCHMIDT, concurring.)

(Court opinion corrected 10/22/14.) Court improperly struck Respondent property owner's redemption under protest, as Petitioner, who filed petition for tax deed as to Respondent's property, failed to comply with notice provisions of Property Tax Code in attempting to obtain a tax deed. Although Petitioner purportedly extended redemption period, it did not have any interest in property at the time, and thus the extension it filed was a nullity and did not extend redemption period. Because Petitioner did not strictly comply with Section 22-10 of Property Tax Code, Petitioner was not entitled to a tax deed, which was proper basis to sustain Respondent's protest.(BURKE and BIRKETT, concurring.)

(Modified upon denial of rehearing 10/7/14.) Court entered summary judgment for condo association and against Bank which purchased condo unit at judicial sale, and ordered Bank to pay outstanding balance of assessments due, including assessments incurred prior to Bank's purchase of condo unit, and late fees. A lien created under Section 9(g)(1) of Condominium Property Act for unpaid assessments by a previous owner is not fully extinguished after judicial foreclosure and sale until purchaser pays assessments incurred after the sale, to confirm extinguishment of that lien. (PIERCE, concurring; LIU, dissenting.)

(Court opinion corrected 9/30/14.) In mortgage foreclosure action, if a grace period notice was sent but Plaintiff did not wait 30 days to file its suit, judicial sale cannot be confirmed, and any judicial sale must be vacated per Section 15-1508 of Foreclosure Law, and case must be dismissed. If grace period notice was sent and Plaintiff waited 30 days before filing suit, then judicial sale may be confirmed. (PALMER and McBRIDE, concurring.)

(Court opinion corrected 10/7/14.) Court erred in entering order confirming sale of condominium in mortgage foreclosure action. Court failed to obtain personal jurisdiction over Defendant because Plaintiff failed to meet statutory prerequisites for service by publication under Section 2-206 of Code of Civil Procedure. Plaintiff bank failed to demonstrate well-directed effort to ascertain whereabouts of Defendant by inquiry as full as circumstances permitted. Defendant met burden of showing that he could have been found upon due inquiry, and court erred in disregarding Defendant's two affidavits as to his personal knowledge of his residence. Thus, service by publication is quashed. (PALMER and TAYLOR, concurring.)

Under Mortgage Foreclosure provisions, a plaintiff can recover fees and costs through the end of proceedings, but only up until time of sale, as payments after protect the buyer's interests, not the mortgagee's interests. Sale surplus should thus be granted to Defendants. (JORGENSEN and SPENCE, concurring.)

Court erred in entering summary judgment for adjacent landowner which had filed declaratory judgment action claiming that neighboring landowners' use of a strip of its land amounted to trespass. Neighboring landowners satisfied elements of exclusivity and adversity necessary to establish claim for prescriptive easement. Although exclusivity is an element of a prescriptive easement claim, it does not require that claimant prove that titleholder was altogether deprived of possession and/or use of property during the 20-year period. Given absence of evidence that origin of the way was merely permissive, the presumption is that of a right or grant based on long acquiescence of owners on whose land the way is located. (GARMAN, FREEMAN, KILBRIDE, KARMEIER, BURKE, and THEIS, concurring.)

Court entered summary judgment for bank in foreclosure action, and confirmed sale and distribution of property of defendant homeowners. Defendants argued that all orders relating to foreclosure are void because MERS, the original plaintiff and mortgagee, operated as unregistered "debt collection agency" under Collection Agency Act. Defendants failed to set forth sufficient facts to establish that MERS is subject to Collection Agency Act, or that type of loan servicing done by MERS is equivalent to debt collection, or that inquiry is relevant as MERS is no longer plaintiff on record. (HOWSE and FITZGERALD SMITH, concurring.)

Bank filed mortgage foreclosure action, and one Defendant filed Section 2-619 motion to dismiss for lack of standing, on grounds that bank did not produce valid assignment of note and mortgage. Court properly entered default order against that Defendant. Although Defendant had never set his motion for hearing, motion had no merit, as he failed to provide appellate court with transcript of proceedings, and it is reasonable to conclude that trial court reviewed note and mortgage attached to complaint. Illinois Mortgage Foreclosure Law does not require plaintiff to submit any specific documentation demonstrating that it owns the note or right to foreclose on mortgage, other than copy of mortgage and note attached to complaint. (PALMER and TAYLOR, concurring.)