CIVIL

ABN Amro Mortgage Group v. McGahan

By Tim Eaton, Shefsky & Froelich Ltd. With the increasing number of foreclosure actions on residential homes, the high court addressed a question that has been to date answered by the lower courts inconsistently  --  that is whether a lender must name a personal representative for a deceased borrower in a mortgage foreclosure proceeding. The trial court found that a foreclosure proceeding was a quasi-in-rem proceeding requiring the mortgagee (borrower) to be a party, or if the borrower is deceased, a personal representative must be named in the action. The lender argued the proceeding was against the property only (in-rem), so no borrower was necessary. The appellate court agreed with the lender. The Supreme Court acknowledged that Illinois courts have ruled inconsistently in how these proceedings have been classified. But it resolved the issue in favor of the borrower since it found the object of the foreclosure is to enforce an obligation created by a contract between the lender and borrower, and therefore the borrower, or personal representative, becomes a necessary party. According to the parties’ briefs below, the resolution of this question will govern “literally thousands of current and future cases.” What is noteworthy about this appeal, is that there was no party bringing the appeal to the Supreme Court. The PLA was filed by an amicus, CVLS, a legal services group that represents indigent borrowers in foreclosure proceedings. Nevertheless, the high court allowed the petition and made no mention of the standing of the amicus in the opinion even though the issue had been raised earlier in prior motion practice. The court was obviously ready to address the issue. Case summary Supreme Court opinion 107954

CRIMINAL

People v. Petrenko

By Kerry J. Bryson, Office of the State Appellate Defender Two issues were before the Court: one having to do with the sufficiency of a post-conviction claim and the other having to do with the propriety of a sentence of a term of years being ordered to be served consecutively to a sentence of natural life imprisonment. On the post-conviction issue, the Court concluded that defendant had no arguable legal basis because there was no possibility that the disclosure of additional evidence in a search warrant application would have even "impacted, let alone defeated," a probable cause finding. More notable, however, is the court's decision on the sentencing issue. Relying on Palmer, 218 Ill. 2d 148 (2006), Petrenko argued that a 10-year sentence could not be ordered consecutive to his natural-life term. The Court rejected this argument noting, first, that Palmer dealt with the Habitual Criminal Act and thus was inapposite to the instant case. The Court then found that its "holding" in Palmer -- that consecutive life sentences were improper under Section 5-8-4 and according to "natural law" -- was both an improper advisory opinion and was incorrect on the merits. Acknowledging stare decisis concerns, the Court went on to overrule Palmer's holding with regard to consecutive life sentences under Section 5-8-4. The Court stated that courts are to enforce Section 5-8-4 "as written and without regard to the practical impossibility of serving the sentences it yields." In short, Illinois law trumps natural law. Case summary Supreme Court opinion 107503

People v. Hillier

By Kerry J. Bryson, Office of the State Appellate Defender In Hillier, the Supreme Court granted leave to appeal from an appellate court decision holding that the trial court did not violate defendant's fifth amendment rights or Illinois statutory law in ordering that the defendant undergo a sex offender evaluation prior to sentencing, even though defendant was not eligible for a probation sentence. At the time of the offense and sentencing, 730 ILCS 5/5-3-2(b-5) provided that a sex offender evaluation should be ordered "in cases involving felony sex offenses in which the offender is being considered for probation." Ultimately, the Court noted the importance of this issue, but concluded that the issue was forfeited. The Court laid blame for its granting leave to appeal in this case on the appellate court for failing to conduct a proper forfeiture analysis. Both trial and appellate practitioners will need to be aware of Hillier. It makes clear that the Court takes seriously the requirement that an issue be properly preserved in the lower court, or that there be an applicable exception to that requirement, before an issue may be reviewed on its merits. Trial practitioners will need to more carefully search for and preserve issues in the trial court to ensure appellate review. In the event that issues are not properly preserved, appellate practitioners will need to be able to establish an exception to forfeiture to obtain review. Case summary Supreme Court opinion 108846