(Court opinion corrected 1/7/16.) A person who provides a traditional home-equity mortgage on her home as security for a loan, even though she is not a party to the loan itself, is entitled to a notice of a right to rescind the mortgage under the federal Truth in Lending Act (TILA). (McBRIDE and COBBS, concurring.)
(Modified upon denial of rehearing 12/31/15.) Court dismissed claims that various parties involved in design, construction and sale of condominium complex completed in 2004 breached implied warranty of habitability by incorporating latent defects into the units and common elements. Limited warranty language in purchase agreement, containing disclaimer for implied warranties, including implied warranty of habitability, was conspicuous and sufficient as a matter of law to bring the waiver to the buyer's attention, and is thus an effective disclaimer. Seller was not required to verbally call warranty disclaimer to each buyer's attention, or to have each buyer initial it. (PALMER and GORDON, concurring.)
Court entered judgment in favor of condo association, and found that agreement with a third-party management company was void because its terms exceeded condo association board's authority. Agent/fiduciary of board should have been aware of the contract limitations in bylaws but was not. Provision in the condo association bylaws, limiting the board to entering into contracts for no more than 24 months, rendered contract with property management company for 36 months void. (McBRIDE and HOWSE, concurring.)
In mortgage foreclosure case, after sheriff's sale, Plaintiff bank filed motion to vacate sale, alleging that it had made an error in calculating amount of judgment; court granted motion to vacate. Court erred in imposing Rule 137 sanctions against Plaintiff for having given court various explanations of nature of its mistake, as the "real reason" for his motion to vacate sale was not material. As court had not granted high bidder's motion to intervene, it could not enter nunc pro tunc order awarding him attorney fees, and he was not entitled to seek Rule 137 sanctions.(JORGENSEN and SPENCE, concurring.)
(Court opinion corrected 12/16/15.) Plaintiff filed mortgage foreclosure complaint, and during pendency of proceedings it assigned mortgage and allowed leave to amend to name assignee as Plaintiff. Court properly granted summary judgment for Plaintiff and confirmed judicial sale. No impropriety, prejudice or surprise in assignment. Affidavit of Plaintiff’s default loan specialist, attesting as to amount due and owing, was sufficient as it attested to affiant’s personal knowledge and personal review of records. Adequate foundation as business record was established. (McDADE and CARTER, concurring.)
Court properly entered summary judgment for lender in foreclosure of separate mortgage loans taken in 2007 and 2008 by three LLCs and personally guaranteed by one person. Bank's motion and supporting affidavits and order of foreclosure and sale were greatly detailed. Affidavit of loan officer satisfies Rule 191 because, as a whole, affidavit indicates personal knowledge and allows reader to reasonably infer that affiant could competently testify to its contents at trial.(HOWSE and ELLIS, concurring.)
An order issuing a tax deed is not void and subject to collateral attack because of failure to include address and phone number of county clerk in publication and certified mail take notices that were required to be sent to the delinquent owner prior to the issuance of the tax deed. Due process standards were not violated where certified mail notices to the owner were returned unclaimed. Whether the unclaimed notices included address and phone number of county clerk has nothing to do with whether notices were reasonably calculated to reach respondent. Alternative relief may be available to estate of deceased former owner of properly under indemnity provisions of Tax Code. (GARMAN, FREEMAN, KILBRIDE, KARMEIER, BURKE, and THEIS, concurring.)
Under Section 9(g)(3) of Condominium Property Act, the payment of postforeclosure sale assessments formally approves and makes certain the cancellation of the condominium associations's lien, and extinguishment of the lien is confirmed by payment of postforeclosure sale assessments.Plain language of the Act and Foreclosure Law may be reasonably construed together to provide a process to extinguish and confirm the extinguishment of condo association's lien. Defendant bank, which purchased condo unit at judicial foreclosure sale, failed to confirm the extinguishment of condo association's lien for prior owner's unpaid assessments, and thus court properly granted summary judgment for condo association. (GARMAN, FREEMAN, THOMAS, KARMEIER, BURKE, and THEIS, concurring.)
Plaintiff obtained a judgment against a corporation that was dissolved afterward. Defendant's sole asset, a building in Chicago, had been sold to a purchaser, that later resold it to another company. After bench trial, court granted turnover order against final purchaser, holding that it was responsible for Defendant's debts. On remand, based on evidence from original hearing, trial court found that initial purchaser was a "straw man" and that the two sales were in reality one prearranged transfer from first to second purchaser, undertaken to avoid the judgment debt to Plaintiff. Court's findings were not against the manifest weight of the evidence, and court correctly granted Plaintiff the requested turnover order, as court reasonably relied on evidence from which a reasonable inference was that the two transactions were really one. (McLAREN and BIRKETT, concurring.)