Real Estate Law

In mortgage foreclosure action, court entered summary judgment for mortgage company, and confirmed judicial sale. Defendants' claim that they did not receive acceleration notice is not a proper affirmative defense but an assertion that a condition precedent was not satisfied prior to filing suit. Unsupported denial of receipt of acceleration notice is insufficient to create genuine issue of material fact to defeat summary judgment. TILA does not apply to loan modifications; thus, claimed failure of mortgage company to provide Defendant with notice of requirements of Illinois Mortgage Escrow Account Act gives rise to no claim under TILA. (PUCINSKI and LAVIN, concurring.)

Section 15-1505.6 of Code of Civil Procedure clearly imposes 60-day deadline to file motions to quash service of process from time a defendant files an appearance, in residential foreclosure action. Although Defendant filed his initial motion to quash service only seven days after filing his initial appearance, he voluntarily withdrew that motion, so that the relevant date, for purpose of time deadline for filing, is date he filed second to quash service, which was beyond 60 days after filing of appearance. (PUCINSKI and MASON, concurring.)

(Court opinion corrected 1/14/15.) Court granted bank's motion to confirm judicial sale and denied Defendant homeowner's motion to set aside sale. Order confirming sale is vacated, and remanded for parties to conduct limited discovery and for evidentiary hearing on whether property was sold in material violation of FHA-HAMP requirements. (PALMER and McBRIDE, concurring.)

Court entered order of default and confirming judicial sale in foreclosure action. Court properly denied Defendant's emergency motion to quash service. Plaintiff's affidavits to effectuate service by publication were based on affiant's personal knowledge and set forth specific actions taken to determine Defendant's whereabouts to justify service by publication. As no evidence that Plaintiff knew where Defendant resided, Plaintiff did not improperly fail to state Defendant's residence in its affidavit for service by publication. (DELORT and CONNORS, concurring.)

Bank filed action for foreclosure and for replevin of grain bins. Parties disputed whether co-trustee owned 100% or 50% of tracts in question. By signing the mortgage , co-trustee mortgaged 100% of the ownership interest in tracts, as opposed to only 50% of the ownership interest. Question of fact as to whether Bank or Defendants were entitled to judgment as a matter of law. (POPE and HARRISON, concurring.)

Court properly granted summary judgment for Plaintiff bank in mortgage foreclosure proceedings. Affidavits from bank employees were sufficient to support Defendant's default on mortgage, were based on affiants' personal knowledge of bank business procedures as well as their review of records relevant to mortgage. Bank presented sufficient evidence to establish prima facie case that Defendant defaulted on her mortgage obligations and that foreclosure was warranted. (HYMAN and MASON, concurring.)

Court properly vacated order issuing the tax deed,as order was void for failure of proper statutory notice. Petitioner failed to provide proper notice to Respondent by omitting address and phone number of county clerk on the take notice forms. Trial court had jurisdiction to resolve matter and properly vacating order issuing tax deed. (WRIGHT, concurring; SCHMIDT, dissenting.)

Court erred in finding that res judicata barred Plaintiff from pursuing separate action on promissory note, after court entered judgment confirming sale in foreclosure action. No evidence that personal judgment was pursued in the foreclosure case beyond cursory mention in prayer for relief. Foreclosure judgment did not adjudge Plaintiff's rights under promissory note. (HALL, concurring; ROCHFORD, dissenting.)

Bank filed foreclosure suit against several Defendants, including a junior mortgagee, all defaulted in underlying action. Appellate court lacks jurisdiction to review order denying motion to vacate default, as Defendant failed to file notice of appeal within 30 days of entry of that order. Court properly awarded to intervenor surplus proceeds from judicial sale after default judgment against Defendant that terminated Defendant's mortgage interest. Defendant was not entitled to award of surplus proceeds because it had no valid lien as result of its default. (SIMON and NEVILLE, concurring.)