Real Estate Law

To close on short sale, after it had obtained a default judgment on its promissory note, second mortgagee conditioned release of second mortgage on homeowners paying $6,000. Illinois law allows a lender to proceed in separate suits to enforce its mortgage and underlying promissory note, and second mortgagee's rights in property are not extinguished as a matter of law. Foreclosure suits on property are quasi in rem proceedings, with a legally distinct remedy from an in personam proceeding on a promissory note. (PUCINSKI and MASON, concurring.)

(Court opinion corrected 9/25/13.) Special warranty deed made by company defined scope of its liability and placed buyer on notice that it warranted only against title defects caused or created by its own conduct, and not for defects arising before it acquired title. Recording of lis pendens by served as notice to future purchasers that deed received after recording might be affected by tax sale. Special assessment taxes sold at tax sale took place because they were previously levied before company conveyed property to buyer, and thus were not within special warranty deed exception. (NEVILLE and HYMAN, concurring.)

Court properly denied Defendants' petition for modification of judgment, brought per Section 2-1203, in mortgage foreclosure action. Defendants alleged that grace-perior notice was defective due to its failure to include one defendant as an addressee, but Defendants failed to allege any prejudice, and record shows that Defendants had knowledge of grace-period claim. (WRIGHT and LYTTON, concurring.)

Pro se defendant filed appeal challenging order approving sale, after default judgment of foreclosure and confirmation of sale was entered. Defendant’s filing of a for-cause motion for substitution of judge did not require judge to immediately suspend all pending issues in a matter, as otherwise such motion would become a vehicle for delay. Motion failed to allege any bias stemming from extrajudicial source. A judge’s previous rulings can be valid basis for claim of judicial bias only if they reveal opinion that derives from an extrajudicial source or such a high degree of favoritism or antagonism as to make fair judgment impossible. (HALL, concurring; GORDON, dissenting.)

(Court opinion corrected 7/2/13.) Mortgage company lacked legal authority to file a forcible entry and detainer action prior to expiration of her lease. Mortgage company failed to comply with statutory requirements of Forcible Entry and Detainer Act by filing its FED action prematurely, prior to expiration of Defendant's lease, and thus circuit court had no jurisdiction over the matter. (QUINN and SIMON, concurring.)

Bank filed foreclosure action and properly granted bank's motion for summary judgment, relying on bank's calculations of mortgage loan balance, as homeowners did not submit counteraffidavit contradicting bank's affidavit. Homeowners lacked standing to make speculative argument that PMI might have reduced their loan balance, and waived their objection to award of attorney fees and costs as they failed to request a hearing and were on notice that court might award attorney fees and costs as part of its final judgment but did not object. (SPOMER and STEWART, concurring.)

Court properly granted Defendant's motion for summary judgment as to easement claim, and as to partnership dissolution and accounting claim, and fraud counterclaim. As easement was ambiguous, court properly considered extrinsic evidence to determine parties' intent in creating easement. Partnership agreement provided that it would continue for 40 years unless terminated sooner by operation of law or by agreement of partners. Court properly found that partnership was not dissolved until partnership no longer retained any property. (WRIGHT and CARTER, concurring.)

Plaintiff developers purchased two-story, four-unit building to convert it into condo units, and alleged they purchased in reliance on oral promise that construction company would perform renovations needed for a certain price. Construction company then told Plaintiffs, after closing, that it would not be able to do renovation work. Court properly granted summary judgment for Defendants on fraud counts; there was no meeting of the minds as to work to be done, with no definite agreement in place as to scope of work, and thus there could be no false statement of material fact. Reliance on Defendants' statement that a repair and replace permit would suffice was not reasonable. (LAMPKIN and HALL, concurring.)

Homeowner, a senior citizen with limited education, was solicited by company to avoid foreclosure and signed numerous documents deeding property to company with promise that she could have her house back within a year. Homeowner made prima facie showing of essential elements of equitable mortgage, with many factors suggesting existence of a debt relationship. Attorney's conduct in comparing signatures on documents with signature on driver's license, without seeing signer in person, was not a valid notarization.However, Plaintiff was judicially bound by her admission that she signed warranty deed, and she could not assert forgery of signatures. Plaintiff presented prima facie case for legal malpractice against attorney, who met with her only once and who gave only cursory statements about complex real estate transaction. (HOFFMAN and DELORT, concurring.)

Bank filed foreclosure action against homeowners; court granted summary judgment for bank and sheriff's sale occurred but homeowners objected to confirmation of sale. Bank improperly failed to suspend sheriff's sale upon its receipt, at least 14 days prior, of homeowners' timely HAMP hardship application based on change in circumstances. A borrower's discharge from chapter 7 bankruptcy is a change in circumstance that can trigger continued eligibility for successive HAMP application under HAMP guideline 1.2. Court erred in confirming sale, based on bank's material violation under Section 15-1508(d-5) of Code of Civil Procedure by failing to suspend sale. (HUTCHINSON and BIRKETT, concurring.)