Real Estate Law

(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.)

Department of Financial and Professional Regulation entered final order permanently revoking Plaintiffs' registrations under Title Insurance Act. Evidence showed that person who engineered "mortgage rescue" transactions, and for which Defendant Title Company acted as title agent, engaged in dishonest dealings as to disbursement of loan proceeds, was a manager and key decision maker of and had effective ownership interest in that title company through his mortgage company. Department's conclusion that titled company violated Title Insurance Act by employing him and allowing him ostensible ownership while engaged in dishonest dealings was not clearly erroneous. (HARRIS and QUINN, concurring.)

Mortgage foreclosure action filed, and court denied intervenor's motion to vacate confirmation of judicial sale. Plaintiff invoked mandatory obligations under 15-1508(b) of Foreclosure Law when it properly motioned for confirmation of Sale. Intervenor failed to carry its burden of proving that sufficient grounds existed to vacate confirmation of sale, as intervenor failed to show that "justice was otherwise not done" in sale, per Section 15-1508(b) of Foreclosure Law. Intervenor relied solely on County recorder of deeds website rather than reviewing the lis pendens itself, which lists mortgage at issue as mortgage to be foreclosed, and lists second mortgage under title "other parties of interest". (CONNORS and SIMON, concurring.)

LLC owner and developer of luxury condominium sued lender, claiming breach of forbearance agreement by filing deed in lieu of foreclosure in absence of material default. Court properly entered summary judgment for lender, as borrower committed a material default in failing to meet aggregate sales goal. Court properly followed intent of parties when they entered into forbearance agreement, per schedule set out in agreement, and thus borrowers should be credited net amount for parking space exchange transaction. Express terms of forbearance agreement permitted lender to file deed in lieu of foreclosure upon any event of default. (NEVILLE and STERBA, concurring.)