Real Estate Law

Contract provision for sale of four shopping centers, which required that $4.3 million of purchase price be held in escrow from seller’s proceeds then be paid to seller only if certain conditions are timely met, is unenforceable as a penalty. Provision fails to distinguish between a minor delay in permit approval and a complete failure of construction project, and thus it sought to award entire value of contract for a temporary delay, which is an unenforceable penalty to coerce performance, and a windfall to the buyer, rather than a valid liquidated damages provision. (FITZGERALD SMITH and LAVIN, concurring.)

Condominium association filed forcible entry and detainer action for possession of condo unit and collection overdue association charges incurred before bank foreclosed its first mortgage and purchased unit at sheriff's sale. Any lien of condo association created before bank obtained title to property,under Section 9 of Condominium Property Act, was unenforceable. Bank's payment of association charges that came due after it obtained title extinguished any lien that association had based on unpaid charges due prior to sale. (McLAREN and SCHOSTOK, concurring.)

Defendant appealed pro se from order confirming sale of property. Defendant argued that Plaintiff did not have standing to file mortgage foreclosure action, because MERS had not executed assignment of mortgage to Plaintiff until 4 days after suit filed. Defendant has burden to plead and prove standing, but failed to do so, as he failed to produce any evidence other than "Assignment of Mortgage" document. Complaint, assignment, affidavit, and note show that Plaintiff has a real interest in outcome of controversy. Defendant waived right to contest service as he never asked for service to be quashed, and never previously contested service. (LAVIN and EPSTEIN, concurring.)

(Supplemental opinion added 12/16/13.) In mortgage foreclosure of vacant lot, debtors attacked deficiency judgment stemming from court's confirmation of sale. Inability of borrower to repay has no bearing on whether sale should be confirmed, absent any showing that sale price was unconscionable. A land patent does not protect borrowers' interest in the real estate. Bank is entitled to attorney's fees, per fee-shifting provision in mortgage and note, and also fees for appeal. Appellate Court imposed Rule 375 sanctions of $10,000, later reduced to $5,000, as appeal was frivolous and filed to harass and unduly delay and increase cost of litigation. Court granted petition for attorney's fees for appeal, and found fees of $23,432 to be reasonable. (CONNORS and CUNNINGHAM, concurring.)

(Court opinion corrected 11/27/13.) Court properly denied application for issuance of tax deed to purchaser of delinquent real estate taxes on real estate parcel. Section 22-5 of Property Tax Code imposes a minimal burden on tax purchasers to provide parties with interest in property the correct notice as to exact due date when redemption period expires excluding weekends and holidays. (PALMER and TAYLOR, concurring.)

After a motion to confirm judicial sale has been filed, the Foreclosure Law, rather than the Code of Civil Procedure, governs the mode of procedure as to a party's motion to vacate underlying default judgment of foreclosure. Where mandatory provisions of Section 15-1508(b) of Foreclosure Law had not yet been triggered, as judicial sale had not yet been confirmed, court could properly entertain motion to vacate under standards of Section 2-1301(e) of Code of Civil Procedure. (GARMAN, FREEMAN, KILBRIDE, KARMEIER, and BURKE, concurring.)