Bank filed counterclaim for declaratory judgment action, seeking declaration that it foreclosed certain "recapture rights" when it foreclosed on 2 parcels of real estate that were collateral for a defaulted loan. Court properly granted summary judgment for plaintiff and counterdefendant developer, finding that recapture rights were personal property not subject to foreclosure. Recapture fees due to a developer pursuant to Section 9-5-1 of Illinois Municipal Code are not an interest in the benefited property and are not subject to foreclosure. Parties' settlement agreement and mutual release for consent foreclosure contained fee-shifting provision for attorney's fees to be awarded to prevailing party. Court was within its discretion in awarding attorney fees to developer. (SCHOSTOK and BIRKETT, concurring.)
Illinois Appellate Court
Civil Court
Foreclosure