Real Estate Law

Plaintiff Condominium Board filed claims that condo building developed and sold by one Defendant and built by another Defendant suffered from many construction defects. Court erred in dismissing 2 counts of Board's 2nd amended complaint, as a plaintiff is permitted to bring a claim for breach of implied warranty of habitability against a builder absent a showing that developer-vendor is insolvent. Court erred in dismissing amended 3rd-party complaint of Defendant developer-seller, because bankruptcy trustee's assignment of any claims against builder cured any lack of standing that might have resulted from Defendant developer-seller's bankruptcy filing. (LAVIN and COBBS, concurring.)

Plaintiff filed mortgage foreclosure action against Defendants (including U.S. and U.S. Treasury Department) to obtain possession of property because Defendant failed to make payments on her note. A notice provision with an acceleration clause in a mortgage is a condition precedent and prescribes servicing requirements that a lender must comply with in order for lender to have a right to file an aciton to recover possession of a secured property. Bank failed to comply with condition precedent present in one paragraph in mortgage, and bank's failure to give homeowner the notice required by that paragraph divested lender of its right to file foreclosure action. Thus, court erred in granting bank's motion for summary judgment and entering order approving report of sale and distribution.(HYMAN and PIERCE, concurring.)

Court properly granted summary judgment for Plaintiff bank and entered judgment of foreclosure and sale, and confirmed sale. Court properly awarded possession of property to bank in its order confirming sale although Defendants were not listed in complaint as persons whose right to possess the property was sought to be terminated. Complaint substantially complied with Section 15-1504(a) of Mortgage Foreclosure Law and was thus more than sufficient to support request for order of possession against Defendants as a form of relief. (CONNORS and HARRIS, concurring.)

Court entered order approving sale of property in foreclosure action. As Defendant failed to timely raise Plaintiff's lack of standing as an affirmative defense in response to either the complaint or the amended complaint, court properly approved sale. Lack of standing is an affirmative defense that defendant alone has burden to plead and prove.Plaintiff sufficiently set for its capacity in bringing a cause of action under Foreclosure Law, by alleging in both complaints that it was the mortgagee under Section 15-1208 of Foreclosure Law.(LAMPKIN and BURKE, concurring.)

In 2011, Plaintiff bank filed mortgage foreclosure action in federal court, where court granted borrowers' motion to dismiss with prejudice, on basis that bank lacked standing to foreclose on debt arising out of a a transfer to the Trust deemed as void by a New York state statute. In 2014, Plaintiff bank filed 2nd foreclosure action against the same borrowers in Illinois state court, where court properly dismissed action on grounds of res judicata. (SCHMIDT, concurring; HOLDRIDGE, specially concurring.)

Plaintiff, a Delaware statutory trust, brought mortgage foreclosure action against Defendant, an Illinois LLC, alleging Defendant was in default. Court properly granted Plaintiff's motion for summary judgment. Court properly found Defendant was in default under mortgage security agreement for failing to maintain its existence as an LLC. Terms of that agreement plainly stated that mortgage loan was made in reliance on Defendant's continued existence as an LLC. The LLC Act's relation-back provision does not apply to prevent Defendant's dissolution from constituting an "Event of Default" under the agreement. (STEIGMANN and APPLETON, concurring.)

Court properly entered judgmgent of foreclosure. Mortgage is valid, as note and mortgage documents were signed together, executed contemporaneously, and intended to complement each other. Defendant spouses jointly agreed to grant a lien on their home when they signed the mortgage. Because both spouses are obligated under the lien, real estate is not protected by their ownership of property as tenants by the entirety.(O'BRIEN and WRIGHT, concurring.)