Real Estate Law

Suit for fraud, breach of contract, and violations of Consumer Fraud Act, arising from purchase of a commercial property. Court erred in dismissing case with prejudice. The "as is" provision in purchase contract is not an affirmative matter that avoids legal effect of or defeats any claims in complaint. Many provisions in contract which delineate seller's duties and warranties must be read in conjunction with the "as is" provision. Affidavits of Defendants do not address Plaintiff's allegations of relationship that may constitute enterprise liability. Record is not yet fully developed, and discovery has not commenced on these issues. Court properly denied motion for attorney fees and sanctions, as there is not yet a "prevailing party" as provided in contract; and pleadings were not frivolous. (MOORE and CHAPMAN, concurring.)

(Modified upon denial of rehearing 5/5/17.) After bank acquired condo unit through foreclosure sale, Condo Association filed forcible entry and detainer action against bank for possession of unit, alleging that payments bank remitted to Association for post-sale common expenses after foreclosure sale were untimely. Section 9(g)(3) of Condominium Property Act is designed to encourage prompt payment of post-sale expenses, by setting their payment as a precondition to extinguishment of association liens for pre-sale expenses. Bank, within 16 months of judicial sale, fully paid amounts it owed for unit's post-sale common expenses, and thereby confirmed the extinguishment of Association's lien for pre-sale common expenses, and with it any entitlement to recovery possessed by Association. Thus, bank was entitled to summary judgment.(HOFFMAN and ROCHFORD, concurring).

(Court opinion corrected 4/27/17.) Plaintiff filed replevin action for Porsche. Court properly ordered possession of Porsche awarded to Plaintiff, as later purchaser had obtained title based on previous owner’s fraudulent lien release letter. (SCHOSTOK and SPENCE, concurring.)

Defendants filed Section 2-1401 petition to vacate personal deficiency judgment entered against them in foreclosure. Court properly struck and dismissed Section 2-1401 petition as barred by Section 15-1509( c) of Illinois Mortgage Foreclosure Law.  Section 15-1509(c ) is clear that all claims of parties to foreclosure are barred, and it does not conflict with other statements in Foreclosure Law.  (HARRIS and MIKVA, concurring.)

Defendant homeowners stopped paying their mortgage and warranty deed bearing Defendants' signatures conveyed home to buyers who obtained mortgage, and some of loan proceeds were used to extinguish Defendants' mortages on property. Once buyers' lender's assignor paid off Defendants' mortgages, assignor was subrogated, by operation of law, and it stepped into the shoes of Defendants' mortgage lenders. Thus, buyers' lender acquired priority interest in subject property. Court properly granted assignor's motion for summary judgment, predicated on doctrine of equitable subrogation. (HYMAN and PIERCE, concurring.)

Condo Association filed forcible entry and detainer action against condo unit owners for their failure to pay assessments.Court within its discretion in denying the Defendants’ motion for new trial where court did not abuse its discretion in admitting the Notice and Demand or the account ledger into evidence. Court properly denied Defendants' Section 2-1110 motion for judgment and motion to reconsider, Court properly awarded attorney fees expended on behalf of Condo Association, but award vacated as to amounts expended for defense of 3rd-party complaint. (NEVILLE and MASON, concurring.)

Plaintiff needed to file a foreclosure complaint before the expiration of his judgment lien on real estate, if he wished to enforce his lien against property after it was conveyed to another party. A judgment debtor may lawfully convey property to a 3rd-party during life of enforceable judgment lien without notifying judgment creditor and satisfying the lien, but such conveyance does nothing to impair judgment creditor's lien rights. (HUDSON and JORGENSEN, concurring.)