Court was within its discretion in denying homeowner's motion to vacate default judgment in mortgage foreclosure action. Homeowner failed to show that bank's denial of a permanent modification was contrary to HAMP guidelines, or that his request of improperly rejected so as to justify vacating the sale.(FITZGERALD SMITH and LAVIN, concurring.)
(Court opinion corrected 1/28/16.) Parties lived together, unmarried, for years. Plaintiff filed suit claiming that Defendant has been unjustly enriched by funds he contributed to purchase of a house titled solely in her name and in they lived together until she required him to move out. Court was within its discretion to impose a constructive trust to the extent of $7,000, the amount of the down payment his parents made on the house presumably as a gift to him. A trust in any greater amount was an abuse of discretion, considering that mortgage payments were made out of a joint account and that any amounts Plaintiff had deposited into that account were gifts from him to Defendant. Court erred in finding that parties were in a fiduciary relationship, as no evidence that Defendant exercised undue influence over Plaintiff or was in position of superiority over him. (HARRIS and STEIGMANN, concurring.)
(Drury, D-Highwood) amends this Article for actions for possession for unpaid condominium expenses. A unit owner may raise as defenses: (1) a material breach of any duty set forth in the Condominium Property Act, governing condominium instruments, rules and regulations, or any applicable statute or ordinance applicable to the unit owner’s possession of the condominium unit; or (2) an improper motive for bringing the action. It also bars an association from recovering any attorney’s fees and costs against a unit owner if the association is found by a court to have breached an obligation under this Article or the Condominium Property Act; or in the case of any member of the association’s board of managers, he or she is found to have breached a fiduciary duty to the unit owner or the association. Introduced and referred to House Rules Committee.
(Drury, D-Highwood) allows an association to add to a unit owner’s part of the common expense for default of some duty (as required by statute, ordinance, or condominium instruments) but only if a court first awards the association its attorney fees. Repeals current law that automatically allows the association to add these fees in the unit owner’s share of the common expense. Introduced and referred to House Rules Committee.
(Drury, D-Highwood) makes a number of changes to this Act, which are as follows. (1) Contains a statement of public policy that a unit owner has the right to fairness in litigation or other legal action regardless whether the unit owner instigates it or the association does. (2) Allows a unit owner to bring a legal action against the association or its board of managers to enforce individual or common-interest community rights without being required to sue other homeowners or otherwise name them as defendants. Any cost to provide a notice to unit owners is to be paid by the association and may not be assessed against the unit owner bringing the action. (3) Voids as a matter of public policy any provision of any condominium instrument or any rule or regulation seeking to limit a unit owner’s right to commence litigation against an association or its board of managers or to limit the liability of an association or its board of managers for a breach of duty. (4) Provides that a unit owner’s compliance with an association’s demand does not waive the unit owner’s right or ability to challenge the demand in a legal action commenced later. (5) Requires a unit owner to be awarded reasonable attorney’s fees to enforce this Act (a) to the extent the unit owner prevails as a plaintiff; or (b) the unit owner as defendant prevails on any affirmative defense or counterclaim for a breach by the association or its board of managers for an obligation under this Act, condominium instruments, rules and regulations, or another applicable statute or ordinance. (6) Requires the association be awarded its reasonable attorney’s fees to enforce this Act but that the court may reduce the award or in part or entirely if: (a) the court finds that the legal action benefited the association by clarifying its duties; or (b) based on other equitable considerations. (7) Bars the association from recovering any attorney’s fees and costs in a claim brought under the Forcible Entry and Detainer Article of the Code of Civil Procedure if the unit owner prevails based on a breach of duty by the association or by any member of its board of managers. (8) Provides that in litigation, the association is required to represent the best interests of all unit owners and the association without regard to the wishes of the board of managers. (9) Provides that the association may not be represented in litigation by counsel who also represents the association’s board of managers either individually or collectively. Introduced and referred to House Rules Committee.
Plaintiff attempted to foreclose on residence on basis of a mortgage that turned out to be ineffective as a matter of law. When homeowners raised these defenses, Plaintiff then asserted other claims such as equitable lien, unjust enrichment, and fraud. As Plaintiff has not sufficiently pled claim for equitable subrogation, it has not established a basis for imposition of a debt or duty upon homeowner. Thus, its claim for equitable lien fails. Under discovery reule, when all relevant facts were known or should reasonably have been known when mortgage was released, any cause of action for unjust enrichment or fraud was complete then, and could have been brought, so that 5-year statute of limitations began to run then. (JORGENSEN and SPENCE, concurring.)
Condo association filed suit against various parties involved in design, construction, and sale of a condo complex completed in 2004 breached implied warranty of habitability by incorporating latent defects into units and common elements.Seller of condos was not required to verbally call the warranty disclaimer to each buyer's attention or obtain each buyer's initials next to it. Disclaimer meets criteria of an effective disclaimer, in part because it was brought to each buyer's attention by being conspicuous within parties' contract. Court erred in dismissing counts as to subcontractors who do not come within scope of written warranty disclaimer. Court properly dismissed counts as to developer-seller, and as to architect. (PALMER and GORDON, concurring.)
A wholly owned subsidiary of a mortgagee that purchases condo at foreclosure sale is considered a "mortgagee" under the Condominium Property Act so that a third party who later purchases the condo from the subsidiary becomes liable for the payment of 6 months of delinquent assessments under Section 9(g)(4) of the Act. (FITZGERALD SMITH and LAVIN, concurring.)
(Court opinion corrected 1/14/16.) Defendant was convicted, after severed but simultaneous bench trials with a co-defendant, of armed robbery. (Co-defendant filed separate appeal.) State failed to present evidence that Defendant was armed with a gun that had weight or composition (metallic nature) of a dangerous weapon. Evidence presented by the State failed to prove, beyond a reasonable doubt, that the gun was a dangerous weapon because it could be used as a bludgeon. Remanded for entry of judgment of conviction for robbery and for appropriate sentence. (PIERCE and HYMAN, concurring.)
(Court opinion corrected 1/8/16.) Plaintiff entered into real estate contract for purchase of residence in Chicago. After completing purchase, Plaintiff searched County Recorder of Deeds and discovered that property was part of a historical district, pursuant to ordinance enacted in 1982. Plaintiff made claim with title company that ordinance was an encumbrance on title. Court properly denied Plaintiffs’ oral motion to amend, as it was made at same hearing but after court granted Defendants’ motion for dismissal with prejudice, as dismissal was a final judgment and Plaintiffs had no statutory right to amend. Court properly dismissed with prejudice counts against sellers, as they were not required under ordinance to post landmark identification on the property. (LIU and CONNORS, concurring.)