Real Estate Law

Court entered summary judgment for bank in foreclosure of mortgage on 7 tracts of land, including 2 tracts which were sold together, as one unit, because grain elevator facility straddled them. Owners of those 2 tracts were different and were subject to different mortgages. Thus, court had to apportion sale proceeds between the two tracts after they were sold en masse. On basis of court's erroneous assumption that bids in foreclosure sale were evidence of fair market value and that such bids thus could not be considered grossly inadequate, amount court apportioned to one tract was too low. Remanded with directions to reapportion $9.1 million between those 2 tracts in accordance with valuations of accredited rural appraiser, as his unrebutted testimony was only probative evidence offered on fair market values of those 2 tracts. (POPE and HARRIS, concurring.)

Court properly denied petition for issuance of tax deed and finding of a sale in error pursuant to Section 22-50 of Properly Tax Code. At the time Petitioner served the take notice, he was required to serve any nominal mortgagee of record, even if mortgage was later judicially determined to be invalid. Petitioner's failure to perform diligent inquiry into parties requiring notice under Code is not excused by notices published in newspaper. Petitioner relied on records from assessor's office and treasurer but did not investigate parties identified as having interests in property as shown by records of recorder's office. (KNECHT and TURNER, concurring.)

Court properly entered summary judgment in favor of Plaintiff loan servicing company, which had been substituted in for bank which was original plaintiff and which had transferred servicing rights on loan, in mortgage foreclosure case. The note attached to original foreclosure complaint is prima facie evidence that bank owned the note, although it lacked indorsement in blank. Defendants failed to present evidence that transfer did not occur before complaint was filed. Loan servicing company employee's affidavit stated amounts due and owing, and that she was familiar with business process and records were made in regular course of bvusiness, so affidavit was admissible and supported judgment. (LYTTON and SCHMIDT, concurring.)

Court properly granted summary judgment for Plaintiff Bank and entered judgment for foreclosure and sale against Defendant homeowner. Defendant's Motion to Vacate Judgment was filed after completion of judicial sale and filing of Bank's motion to confirm sale. To vacate both sale and judgment of foreclosure, borrower must do more than merely raise meritorious defense to underlying foreclosure complaint. Record does not show that Bank prevented Defendant from raising meritorious defense of fraud, or that "justice was not otherwise done". (CARTER and LYTTON, concurring.)

Bank sought judgment of foreclosure of $3.5 million; request did not include $500,000 tax payment Bank had made one month prior. Court granted judgment, and property went to sheriff's sale, at which Bank was sole bidder, bidding amount equaling judgment plus subsequently accruing costs, leaving no deficiency. Court properly denied Bank's request to collect deficient judgment for prejudgment tax payment from Defendant-guarantors. Sheriff conducted sale according to judgment of foreclosure, and Bank could have but did not amend judgment, to include tax payment, prior to sale. Section 15-1512 of Mortgage Foreclosure Act does not state that mortgagee is always entitled to reimbursement for prejudgment tax payments, but discusses order in which sale proceeds will be applied. (McLAREN and ZENOFF, concurring.)

Lack of standing is an affirmative defense to mortgage foreclosure case. Court erred in striking affirmative defenses at pleading stage, as that prevented Defendants from taking discovery on possible defenses. Defendant homeowners were improperly denied opportunity to mount meaningful defense to foreclosure action because plaintiff bank failed to produce records relied on by bank's vice-president of loan documentation, who signed affiidavit in support of bank's motion for summary judgment, and bank refused to produce affiant for deposition. (NEVILLE, concurring; LIU, dissenting.)

Bank filed foreclosure action, after sending homeowners acceleration letter. Court properly denied homeowners' Section 2-619 motion to dismiss, as acceleration notice was sufficient, under terms of acceleration clause in mortgage. Amount owed on loan changes daily due to interest accrual, and omission of specific dollar amount owed is unavoidable consequence of ability of borrowers to cure default during 30-day window of time, rather than only on specific day.(CUNNINGHAM and CONNORS, concurring.)

In mortgage foreclosure action, court erred in granting bank's motion for summery judgment. As Defendant homeowner claims that his property was used as his primary residence and required notice was not given, genuine issue of material fact must be decided. Protections of Section 15-1502.5 of Mortgage Foreclosure Act are the same when multiple-dwelling structure has 6 or fewer units being used as residential units and when owner uses one unit as his primary residence.(PALMER and REYES, concurring.)

Plaintiff, who was guarantor of note, and mortgagor were found in default on mortgage; property was then foreclosed, and bank took possession of property. Plaintiff filed complaint for conversion and replevin, alleging that bank refused to allow Plaintiff to take possession of pharmaceutical manufacturing equipment that remained on property after bank took possession of it. Plaintiff's claims and foreclosure claim are essentially unrelated so that there can be no bar by prior judgment. Nothing in foreclosure judgment gave bank possessory interest in equipment superior to Plaintiff's interest.(BIRKETT and SPENCE, concurring.)