Real Estate Law

Former homeowner appealed pro se from order confirming sale of foreclosed property. Foreclosure complaint which would be void ab initio because plaintiff did not have legal standing at time of filing can be cured with amendment naming proper plaintiff. As standing is affirmative defense, burden is on defendant to prove that plaintiff does not have standing. That a copy of note is attached to complaint is prima facie evidence that plaintiff owns the note. Plaintiff properly filed motion to shorten redemption period to 30 days from date of judgment, asserting that property had been abandoned, as Defendant had up to then refused to answer complaint and then denied any interest in property; however, court denied motion and redemption period remained three months from date of entry of foreclosure. (LAVIN and EPSTEIN, concurring.)

Title company filed Section 2-1401 petition to declare tax deed void. Trial court correctly ruled that title company had standing to collaterally attacking tax deed, and properly granted petition to void tax deed, as deed was procured through fraud given that purchaser was aware of problems with its Section 22-5 take notice and misrepresented that it had complied with notice requirements. Listing of an erroneous redemption date in a legal notice does not set the redemption date for purpose of when an extension must be requested or a tax deed recorded. (McDADE and O'BRIEN, concurring.)

(Court opinion corrected 9/25/13.) Condo association filed forcible entry and detainer suit, claiming that condo owners had failed to pay common assessments due for a business condo for six years. Court entered judgment against Defendants but reduce award based on failure to mitigate damages. Existence of dispute between owners of condo is not a valid defense to forcible entry and detainer action to collect past-due assessments. Improper motive is pertinent only to retaliatory eviction case.(McBRIDE and TAYLOR, concurring.)

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.)