Court properly denied petition for tax sale, as Petitioner failed to serve property owner and taxpayer. Petitioner did not exercise diligence in locating and serving property owner, and thus did not make a bona fide attempt to obtain tax deed. Petitioner's "bare minimum" efforts did not support a bona fide attempt to comply with statutory notice requirements. (McDADE and WRIGHT, concurring.)
Court properly granted summary judgment for bank on its foreclosure complaint and order confirming sale of home. Plaintiff bank attached to its complaint a copy of executed and recorded mortgage, and a "lost document affidavit", neither signed nor notarized, stating that note could not be located in bank's records. MERS did not engage in any conduct that would require it to be licensed under the License Act, but was only listed on mortgage as the mortgagee, acting as nominee for lender. Plaintiff bank did ultimately attach a copy of note to its motion for summary judgment, and in his answer, Defendant admitted that Plaintiff brought suit in its capacity as trustee for holder of mortgage, thus admitting that Plaintiff was entitled to file suit. Plaintiff was not required to attach assignment to complaint. (LAMPKIN and REYES, concurring.)
Plaintiff entered into contract to purchase home of Defendants, who delivered a residential real property disclosure report that stated that they were unaware of any leaks or material defects in roof, ceilings, or chimney. Home inspection showed issues with roof, and parties executed a repair addendum. Plaintiff noticed roof was leaking when she moved into home 1 month later. Fee-shifting provision in contract, that court "may" award attorney's fees, means court had discretion as to awarding attorney fees. Court did not abuse its discretion in denying Plaintiff's request for attorney fees, as Plaintiff did not succeed on 2 of her 3 claims. Award of attorney fees under Residential Real Property Disclosure Act is discretionary. Court did not abuse its discretion in denying Defendants' request for attorney fees under the Act, as record is devoid of indication Plaintiff engaged in knowing misconduct.(APPLETON and STEIGMANN, concurring.)
Lessor rented space to lessee for 2 years. By a separate written guaranty, Defendant, lessee's president, personally guarantied its obligations under lease. The personal guaranty did not remain in effect with respect to "lease extension" of 5 years later, which was a new agreement between parties, or the month-to-month holdover that followed it. As guaranty was not a part of "lease extension" it could not obligate lessee's president for any missed rent payments under it or any holdover period following it. Any extension of lease to which guaranty is attached must be specifically contemplated by that lease. (HARRIS and SIMON, concurring.)
(Court opinion corrected 12/22/16.) In mortgage foreclosure action, bank served process on Defendant by publication. After Defendant did not appear or answer, court entered default judgment and ordered judicial sale of Defendant's property. Court properly denied Defendant's motion to quash service, as Plaintiff complied with statutory and local rule requirements by filing affidavits establishing due inquiry and due diligence. Court properly denied as premature Defendant's Section 2-1401(f) petition to vacate, as it was filed prior to entry of order approving judicial sale. Court properly entered personal deficiency against Defendant in order approving judicial sale, as Plaintiff complied with Section 15-1508(e) of Foreclosure Law. (HALL, concurring; GORDON, specially concurring.)
Defendant attempted to rescind mortgage by mailing a letter to mortgage company, which had filed foreclosure action after he stopped making mortgage payments. Defendant properly invoked rescission mechanism when he sent mortgage company rescission letter. Defendant's counterclaim related to mortgage company's failure to disclose certain information when loan closed is time-barred. To bring a time-barred counterclaim pursuant to Section 13-207 of Code of Civil Procedure, counterclaim must not have been time barred when cause of action forming basis of primary complaint arose.(SIMON and MIKVA, concurring.)
(Supplemental opinion filed 11/30/16.) Appellate court imposed sanctions of $30,093 on Defendants-Appellants, and the law firm that represented them on appeal. Defendants had argued on appeal that agreed order of foreclosure has no legal effect because mortgage itself was void due to an alteration to the mortgage. This argument was fundamentally deficient: mortgage was not altered, but as signed, expressly contemplated that full legal description would be added later; and argument failed to address distinction between void and voidable; and argument ignored fact that Defendants had already settled case and accepted a $10,000 payment.(SCHMIDT, concurring; CARTER, specially concurring.)
Wind energy system was built on property; property owners entered into windpark easement agreement with wind energy developer. Subcontractor that worked on tower filed complaint to foreclose m$3 million mechanic's lien against property. Court properly granted property owner's motion to dismiss complaint, and properly granted general contractor's motion for summary judgment. Subcontractor's work was an improvement to a trade fixture, which is not lienable; work was not improvement to real property, which is lienable. Although expensive to remove, the tower was not "incapable of removal", and this consideration does not outweigh fact that tower was intended to be temporary. (McLAREN and JORGENSEN, concurring.)
Commercial real estate firm filed broker's lien against a property in dispute of a real estate broker's commission. Plaintiff (the owner of iO Theatre, a comedy club) filed complaint to extinguish lien as improper. Defendants filed counterclaim for payment of their broker's commission. After bench trial, court awarded Defendants a $50,000 commission. Court properly denied Plaintiff's claim for attorney's fees, as Plaintiff cannot be considered a prevailing party by grant of an interlocutory motion for preliminary injunction, as it was not a final disposition on merits of Plaintiff's claim, and did not confer Plaintiff a permanent relief. Court's holding that Defendants were the procuring cause of the off-market property was not against manifest weight of evidence. (HARRIS and MIKVA, concurring.)