Real Estate Law

Bank filed counterclaim for declaratory judgment action, seeking declaration that it foreclosed certain "recapture rights" when it foreclosed on 2 parcels of real estate that were collateral for a defaulted loan.  Court properly granted summary judgment for plaintiff and counterdefendant developer, finding that recapture rights were personal property not subject to foreclosure. Recapture fees due to a developer pursuant to Section 9-5-1 of Illinois Municipal Code are not an interest in the benefited property and are not subject to foreclosure. Parties' settlement agreement and mutual release for consent foreclosure contained fee-shifting provision for attorney's fees to be awarded to prevailing party.  Court was within its discretion in awarding attorney fees to developer. (SCHOSTOK and BIRKETT, concurring.)

(Court opinion corrected 2/17/16.) Court entered summary judgment for Plaintiff in mortgage foreclosure action.  Plaintiff's prove-up affidavit of Plaintiff's vice-president, was sufficient to support summary judgment for the amounts due.  Affiant established that the record was made in regular course of business, and made at or near the time of the event or occurrence, which satisfied foundational requirements of Rule 236. Thus, court properly considered affidavit and attached loan documents and did not face issue of material fact as to amounts owing on loan. (ZENOFF and BURKE, concurring.)

(Modified upon denial of rehearing 2/10/16.) City entered into agreement with developer, wherein developer agreed to develop certain property as a residential planned development and to make property improvements at its own expense, and City approved development and agreed to annex property into City. Developer later filed bankruptcy.When developer's bankruptcy trust sold all remaining property to another company, the sale discharged developer's obligation to complete improvements, and underlying obligation was assumed by buyer.  Buyer's successor liability was a matter of public record and statutory law, which is incorporated into every contract unless contract provides to the contrary. Surety can look to buyer to either perform buyer's obligations under Annexation Agreement or pay costs sustained by surety if it is forced to pay City due to buyer's failure to perform.(BURKE and SPENCE, concurring.)

Plaintiff condo owners filed suit against condo association, asserting that condo association's Board's rule, limiting the amount of units that could be leased at any one time, impermissibly conflicted with the condominium declaration which granted unit owners the right to lease their units. Condominium declaration, when considered with bylaws and the Condominium Property Act, clearly intended that owners have the right to lease their units, subject only to specific limitations. Because declaration has spoken on matter of leasing, any augmentation or diminution of Plaintiffs' right to lease their unit must be accomplished through amendment to declaratiuon, not a rule promulgated by Board.(MASON and FITZGERALD SMITH, concurring.)

(Court opinion corrected 2/3/16.) Consolidated class action appeal, in which Plaintiffs allege that title companies made illegal kickback payments by splitting fee with attorneys who also served as title agents, for their referral of business to title companies in violation of Illinois Title Insurance Act and Illinois Consumer Fraud Act. Payments by title companies to attorney agents were not prohibited under Section 2607 of Real Estate Settlement Procedures Act (RESPA), where attorney agents provided settlement services in return for the payment, and the reasonableness of the monetoary amount of those payments is irrelevant. Thus, Plaintiffs failed to establish a violation of Title Act and Consumer Fraud Act, claims which are both premised on violation of Section 2607. (LAVIN, concurring, PUCINSKI, dissenting.)