Real Estate Law

(Court opinion corrected 5/26/15.) Bank filed two separate foreclosure actions against multiple Defendants, to foreclose on roads and outlots contained in two failed subdivisions located in village. Court properly granted Village's motion to dismiss, as roads and common areas had been dedicated to Village. When a mortgagee executes and records mortgage releases on lots shown on plat of subdivision, mortgagee impliedly consents to entire plat, including streets shown thereon, and can no longer revoke its assent to dedication of streets and alleys set forth in plat. Village satisfied two requirements for valid statutory dedication of property. Village had expressly accepted offers to dedicate roads and outlots after Bank filed foreclosure complaints and before judgment for foreclosure was entered, and thus acceptance was timely and effective. As property was unimproved, Village was not required to improve streets and commons areas to prove acceptance. (O'BRIEN, concurring; CARTER, dissenting.)

Forest Preserve District of Cook County has statutory authority, under Cook County Forest Preserve District Act, to acquire property in foreclosure by purchasing mortgage note and subsequently bidding on property at foreclosure sale. Ultimate purpose of Forest Preserve District's purchase of mortgage note was creation of a forest preserve, not acquired for profit but for a public purpose.(DELORT and CUNNINGHAM, concurring.)

Court properly dismissed Defendant's Section 2-1401 petition to vacate judgment of foreclosure. Defendant waived jurisdiction when he participated in hearing and failed to contest court's jurisdiction within 60 days required by Section 15-1505.6 of Foreclosure Law. Defendant failed to establish by preponderance of evidence a meritorious defense and that he was duly diligent. (McBRIDE, concurring; GORDON, dissenting.)

Court properly granted tax deed to residential property occupied by homeowners. Attempts to notify homeowners of tax sale were sufficient because they were reasonably calculated, under all circumstances, to apprised them of pendency of action and afford them opportunity to present their objections. Sheriff tried to serve them multiple times, and tried to send notice by certified mail, at two addresses, but they failed to claim their mail. No basis to conclude that appellees engaged in fraud in acquiring tax deed or violated homeowners' due process rights.(PUCINSKI and LAVIN, concurring.)

Patio on Plaintiff's home, which he had bought "as is" for $1.05 million from original purchaser, collapsed 4 months after he moved in to home. Plaintiff sued developers of home, alleging breach of implied warranty of habitability. Defendants failed to meet burden to show Plaintiff knowingly waived implied warranty of habitability. "Successor and assign" provision in waiver agreement between Defendants and original purchaser does not bind Plaintiff, and "as is" rider agreement between Defendants and original purchaser does not bind Plaintiff to original purchaser's waiver of implied warranty of habitability. (McBRIDE and REYES, concurring.)

Court properly entered summary judgment for defendant tax purchaser on title company's complaint for breach of contract and unjust enrichment. Purchasers of property, through dismissed tax deed litigation, received warranty deed, but then original owner filed Section 2-1401, claiming that Defendant had acquired property by fraud or deception, which court granted. Subsequent purchasers cannot show that defendant offered warranty as inducement to purchase; thus, no action for breach of warranty, and title company stands in shoes of subsequent purchasers.(CUNNINGHAM and CONNORS, concurring.)

(Court opinion corrected 4/24/15.) Court properly granted summary judgment to bank, as assignee of mortgage, in mortgage foreclosure action. Bank proved capacity to bring foreclosure action, as holder of indebtedness by being bearer of note and through its supporting affidavit. (HOLDRIDGE and WRIGHT, concurring.)

Parties entered into oral agreement that Defendants, in auction business, would procure buyers for Plaintiff's home which was in her own revocable trust of which she was trustee. Defendants successfully found buyers, but buyers reneged on purchase. Section 15 of Residential Real Property Disclosure Act exempts a trustee, as a fiduciary in course of administration of a trust, selling her own trust's real estate from requirement that she provide a disclosure form to buyers.The fact that trustee and beneficiary are the same person does not erase fiduciary role Plaintiff assumes. Thus, Defendants had no duty to provide Plaintiff a disclosure form to give to buyers, under Section 20 of the Act, and their alleged failure to provide form was not a breach of contract or fiduciary duty and not negligence. (CATES and CHAPMAN, concurring.)