Real Estate Law

Court had subject matter jurisdiction over mortgage foreclosure action. Mortgagee properly complied with requirement that mortgagor is a necessary part defendant to proceedings by naming special representative of decedent who held interest in property. Mortgagee properly served nonrecord claimants by publication, and properly recorded a lis pendens and notice of foreclosure, and properly issued a notice of sale. Thus court properly confirmed sale and denied motion to reconsider order. (HOFFMAN and DELORT, concurring.)

in order to extinguish presale assessments under section 9(g)(3) of Condominium Property Act, a foreclosure buyer must make prompt payment of assessments after acquiring the property. Summary judgment for Defendant was improper because a material question of fact exists as to whether its tender, seven months after acquiring the unit, can be considered prompt. (HYMAN and PIERCE, concurring.) 

Court properly granted implied easement and easement by prescription over a portion of a condominium unit owned by them for purposes of ingress from, and adjoining condo unit. Evidence supports court’s finding that each element necessary for establishment of an implied easement over that portion of certain unit located within vestibule for purposes of ingress and egress to and from another unit was satisfied; and that Plaintiffs’ period of use itself satisfied the 20-year adverse, continuous and uninterrupted use requirements. Plaintiffs openly used vestibule for access to their unit for 20 years, some 5 years before use was interrupted when sliding glass door to vestibule was locked.  (ROCHFORD and DELORT, concurring.)

Bank filed foreclosure action, and court granted summary judgment for bank. Preperty was then sold at foreclosure sale which court confirmed.  The single refiling rule (Section 13-217 of Code of Civil Procedure) is not intended to permit multiple refilings of same cause of action, but to permit one refiling of a claim, even if applicable statute of limitations has not expired. The 2010 foreclosure case was not a refiling of the 2008 foreclosure case, as operative facts of 2 cases are substantially different.  The mortgage foreclosure complaint here (2012 case) is the first and only refiling of the 2008 case), and the single refiling rule was not violated.(McDADE and SCHMIDT, concurring.)

Plaintiff filed suit against Defendant, Stewart Title Guaranty Company, alleging breach of contract. The parties contract required Defendant to remove encumbrances on Plaintiff’s title “in a reasonably diligent manner.” Plaintiff alleged, in part, that Defendant’s conduct amounted to a breach of the policy because Defendant pursued time intensive litigation designed to settle the liens for less money, rather than immediately tendering the full-face value of the lien. Following a bench trial, Court found in favor of Defendant. Court properly found in favor of Defendant. Defendant removed all liens within 18 months and the title insurance policy granted Defendant discretion in the manner in which claims are to be resolved.

Plaintiff, Lake Point Tower Association, filed a forcible entry and retainer action against Defendant to obtain possession of Defendant’s condominium. Defendant filed a motion to dismiss, alleging that Plaintiff lacked authority to initiate litigation because the Board failed to vote at an open meeting before doing so in violation of the Condominium Property Act and the appellate court's decision in Palm. Court erred by granting Defendant’s motion. Even assuming the motion raised a meritorious defense, Court abused its discretion by dismissing the complaint with prejudice and denying Plaintiff the opportunity to amend the complaint. The Board voted at an open meeting before Court dismissed the action, thus eliminating Defendant’s basis for asserting that it did not have authority to litigate.

Court properly dismissed petition for issuance of a tax deed, finding Petitioner was ineligible to obtain a tax deed due to interests it held in the property. Petitioner held a pretax sale interest in the property through a mortgage prior to tax sale through which the delinquent taxes were sold. Under principles of equity, a lienor may not obtain a tax deed and thereby cut off interest of other lienors or mortgagees.(STEIGMANN and KNECHT, concurring.)