Real Estate Law

A private detective agency must be properly licensed before it may act as special process server, and if it was not, then service was improper and court properly granted Section 2-1401 motion for relief from judgment, and set aside foreclosure judgments as void for lack of personal jurisdiction. Defense of laches inapplicable, as bank failed to show material prejudice. (JORGENSEN, concurring.; BIRKETT, specially concurring.)

Plaintiff bought residence from company which had acquired titled, by agreement, from Defendant homeowners. Relocation company had homeowners complete Residential Real Property Disclosure Form, which company provided to buyer prior to purchase. Buyer sued Defendants in small claims court, alleging they falsely represented on form that they were unaware of flooding or recurring leakage problems or water problems. Residential Real Property Disclosure Act does not exempt persons who have resided in the home and who are in position to provide prospective buyers with actual notice of known defects. Section 15(7) of Act precludes liability for entity that never resided in or had management responsibilities for home and took title solely to assist with seller's relocation.(LYTTON and HOLDRIDGE, concurring.)

(Supplemental opinion entered 10/27/14.) Court entered judgment of foreclosure and sale in favor of bank. There were no affirmative defenses before court at time of summary judgment hearing. Court properly denied Defendants' motion to file amended answer and affirmative defenses after summary judgment was entered. Rescission is an affirmative defense which must be specifically pleaded. All claims for rescission are extinguished three years after consummation of transaction or upon sale of property, whichever occurs first, per Section 1635(f) of Truth in Lending Act. Appellate court imposed sanctions sua sponte per Supreme Court Rule 375. Defendants and their law firm each sanctioned $5,000 in attorney's fees and $1,752 in costs, for frivolous appeal, as Defendants attempted to relitigate merits of issues previously raised.(O'BRIEN and SCHMIDT, concurring.)

(Court opinion corrected 10/22/14.) Court improperly struck Respondent property owner's redemption under protest, as Petitioner, who filed petition for tax deed as to Respondent's property, failed to comply with notice provisions of Property Tax Code in attempting to obtain a tax deed. Although Petitioner purportedly extended redemption period, it did not have any interest in property at the time, and thus the extension it filed was a nullity and did not extend redemption period. Because Petitioner did not strictly comply with Section 22-10 of Property Tax Code, Petitioner was not entitled to a tax deed, which was proper basis to sustain Respondent's protest.(BURKE and BIRKETT, concurring.)

(Modified upon denial of rehearing 10/7/14.) Court entered summary judgment for condo association and against Bank which purchased condo unit at judicial sale, and ordered Bank to pay outstanding balance of assessments due, including assessments incurred prior to Bank's purchase of condo unit, and late fees. A lien created under Section 9(g)(1) of Condominium Property Act for unpaid assessments by a previous owner is not fully extinguished after judicial foreclosure and sale until purchaser pays assessments incurred after the sale, to confirm extinguishment of that lien. (PIERCE, concurring; LIU, dissenting.)

(Court opinion corrected 9/30/14.) In mortgage foreclosure action, if a grace period notice was sent but Plaintiff did not wait 30 days to file its suit, judicial sale cannot be confirmed, and any judicial sale must be vacated per Section 15-1508 of Foreclosure Law, and case must be dismissed. If grace period notice was sent and Plaintiff waited 30 days before filing suit, then judicial sale may be confirmed. (PALMER and McBRIDE, concurring.)

(Court opinion corrected 10/7/14.) Court erred in entering order confirming sale of condominium in mortgage foreclosure action. Court failed to obtain personal jurisdiction over Defendant because Plaintiff failed to meet statutory prerequisites for service by publication under Section 2-206 of Code of Civil Procedure. Plaintiff bank failed to demonstrate well-directed effort to ascertain whereabouts of Defendant by inquiry as full as circumstances permitted. Defendant met burden of showing that he could have been found upon due inquiry, and court erred in disregarding Defendant's two affidavits as to his personal knowledge of his residence. Thus, service by publication is quashed. (PALMER and TAYLOR, concurring.)

Under Mortgage Foreclosure provisions, a plaintiff can recover fees and costs through the end of proceedings, but only up until time of sale, as payments after protect the buyer's interests, not the mortgagee's interests. Sale surplus should thus be granted to Defendants. (JORGENSEN and SPENCE, concurring.)