Real Estate Law

In residential mortgage foreclosure action, bank admitted that mortgage servicer had timely received Defendant's payment by failing to adequately deny his allegation to that effect in its pleadings, by stating that it lacked sufficient information to admit or deny that allegation. Bank had ample opportunity to deny allegation in the manner required by Section 2-610 of Code of Civil Procedure but failed to do so.  Although mortgage servicer's letter states that it received the payment late, the letter is unsworn and was never presented into evidence by bank. Bank failed to present evidence sufficient to justify summary judgment in its favor or to forestall summary judgment for Defendant. Court properly granted summary judgment for Defendant.  (LYTTON and CARTER, concurring.)

In mortgage foreclosure action, Plaintiff served process on Defendant by publication. Defendant failed to appear or answer, and court entered default judgment and ordered a judicial sale. The day after the sale was confirmed Defendant filed motion to quash service. Court properly denied motion to quash. Defendant's affidavit to challenge service is insufficient under Rule 191(a), and thus no foundation has been laid for the documents referenced in the affidavit and some of the documents were not properly authenticated. Plaintiff established due diligence in attempts to find Defendant and to serve her personally, and in making inquiry into Defendant's whereabouts. (HALL and LAMPKIN, concurring.)

Defendant, owner of a condominium unit, remodeled his unit and during the process removed a beam partially located in the unit. Plaintiff condominium association ("HOA") notified Defendant that this was in violation of condominium declaration, and demanded that he restore the building to its original condition.  HOA filed complaint for injunctive relief. Court granted HOA's motion for default judgment, but granted Defendant's motion to vacate default judgment. Court entered agreed order, wherein Defendant agreed to allow "full access" of his unit to HOA's contractors. Court granted HOA's petition for attorney's fees and costs, including construction costs and consultation fees, and entered judgment of $48,993 for HOA. Defendant did not request evidentiary hearing on fee petition, and he did not offer any competent evidence to refute reasonableness and necessity of fees and costs. Court properly denied Defendant's motion to reconsider, as new evidence presented in motion was available prior to court's ruling on petition for fees and costs. (CONNORS and GRIFFIN, concurring.)

(Court opinion modified 11/18/20.) Plaintiffs, prospective purchasers, filed suit for breach of contract and common law fraud for failed residential real estate transaction.Wife had executed, but never recorded, quitclaim deed adding her spouse as owner of property. Husband refused to sign contract unless Plaintiffs agreed to a higher price and on a later closing date. Closing did not occur. Grantor of real estate need not have title when contract is made. Wife thus breached her obligation to provide good and merchantable title by recordable warranty deed. Court entered judgment against wife in breach-of-contract claim, as she was bound by the contract. Court entered judgment for Sellers on fraud claim. Court properly denied Sellers' petition for attorney fees, as Sellers failed to provide a record sufficient to support their claim. Court properly entered judgment for Plaintiffs for attorney fees and costs. (ZENOFF and HUDSON, concurring.)

Court properly granted motion for summary judgment of Defendant, a 3rd-party purchaser, who sought to quiet title to property which had been the subject of a foreclosure action filed in 2010 and an eviction action filed in 2018. The mortgage lender's lis pendens in the foreclosure action was recorded a week before Plaintiff recorded its quitclaim deed. A lis pendens serves as constructive notice to persons who have an unrecorded interest in the property. The 6-month service requirement of Section 2-1901 of Code of Civil Procedure does not apply to lis pendens in foreclosure proceedings under Section 15-1503 of Mortgage Foreclosure Law. Because lis pendens was recorded before Plaintiff's quitclaim deed was recorded, Plaintiff was bound by the foreclosure proceedings as if Plaintiff were a party. The foreclosure proceedings thus extinguished Plaintiff's interest int he party. (MIKVA and HARRIS, concurring.)

Existing tax and insurance defaults are part of the core of operative facts of a foreclosure complaint, as they relate in time, space, and origin to the other payment defaults alleged in an ordinary foreclosure case. The current foreclosure complaint is the first refiling to include portions of the alleged defaults postdating the dismissal of the first complaint but predating the filing of the second complaint. Thus, the allegations as to the alleged defaults are not barred by the single refiling rule. It was error to dismiss the complaint, as the section 2-619 motion to dismiss did not raise a defense to the complaint as a whole or to the entirety of any specific claim. (McLAREN and ZENOFF, concurring.)

Plaintiffs, prospective purchasers, filed suit for breach of contract and common law fraud for failed residential real estate transaction.Wife had executed, but never recorded, quitclaim deed adding her spouse as owner of property. Husband refused to sign contract unless Plaintiffs agreed to a higher price and on a later closing date. Closing did not occur. Grantor of real estate need not have title when contract is made. Wife thus breached her obligation to provide good and merchantable title by recordable warranty deed. Court entered judgment against wife in breach-of-contract claim, as she was bound by the contract. Court entered judgment for Sellers on fraud claim. Court properly denied Sellers' petition for attorney fees, as Sellers failed to provide a record sufficient to support their claim. Court properly entered judgment for Plaintiffs for attorney fees and costs. (ZENOFF and HUDSON, concurring.)