Real Estate Law

Catalan v. GMAC Mortgage Corp.

Federal 7th Circuit Court
Catalan v. GMAC Mortgage Corp.
Civil Court
Real Estate
Citation
Case Number: 
No. 09-2182
Decision Date: 
January 10, 2011
Federal District: 
N.D. Ill., E. Div.
Holding: 
Affirmed and reversed in part and remanded
Dist. Ct. erred in granting defendant-mortgage servicer's motion for summary judgment in action alleging violations under Real Estate Settlement Procedures Act (RESPA) where plaintiffs asserted that defendant failed to notify them that it had been assigned right to receive mortgage payments on plaintiffs' home and had given wrong information about status of plaintiffs' mortgage to credit bureau. While Dist. Ct. found that defendant was entitled to safe harbor provision under RESPA, defendant was not entitled to said provision since, although plaintiffs did not pay more than what was owed on their mortgage, defendant had failed to notify plaintiffs of errors relating to their account. On remand, Dist. Ct. must determine whether defendant satisfied its obligation to investigate and respond to plaintiffs' inquiries under RESPA. Dist. Ct. also erred in dismissing plaintiffs' breach of contract claim stemming from defendant's refusal to accept their payments on mortgage during temporary dispute concerning what plaintiffs' owed on mortgage since question of fact remained as to whether defendant's delay in applying plaintiffs' payments on mortgage was reasonable.

Gandy v. Kimbrough

Gandy v. Kimbrough
Illinois Appellate Court
Civil Court
Mortgages
Citation
Case Number: 
No. 1-10-0424
Decision Date: 
Wednesday, December 22, 2010
District: 
1st Dist.
Division/County: 
Cook Co., 3d Div.
Holding: 
Affirmed.
Justice: 
MURPHY
In consolidated actions regarding real estate, court properly found that an equitable mortgage, rather than a conveyance of title occurred, where buyer of residential property in Chicago and seller, who had lived in residence all her life and inherited it from her father, entered into transaction through connection at now-defunct "home loan" company, with significant sums of money from sale being distributed to unknown entities, and seller claiming that after sale she paid buyer, via certified check, $18,400 as prepayment for rent; in significant disparity in initial sale price and later sale to a third party. (QUINN and NEVILLE, concurring.)

Mortgage Electronic Registration Systems, Inc. v. Barnes

Mortgage Electronic Registration Systems, Inc. v. Barnes
Illinois Appellate Court
Civil Court
Mortgage Foreclosure
Citation
Case Number: 
No. 1-09-2345
Decision Date: 
Friday, December 3, 2010
District: 
1st Dist.
Division/County: 
Cook Co., 1st Div.
Holding: 
Affirmed.
Justice: 
LAMPKIN
(Court opinion corrected 12/9/10.) Court denied homeowner's petition to vacate foreclosure judgment and sale and to deny confirmation of the sale. Section 15-508(b) of the Foreclosure Law limits the court's discretion to refuse confirmation of judicial sale to four specified grounds, and is thus more restrictive than and inconsistent with, and prevails over, Section 2-1301(e) of Code of Civil Procedure. Foreclosure complaint was sufficient in that Plaintiff pled that it was the mortgagee and legal holder of the indebtedness, which was sufficient to allege standing. Standing argument was forfeited through Defendant's having defaulted after proper service of foreclosure complaint. Plaintiff MERS, as nominee for lender, had authority to enfoce the mortgage, per terms of mortgage. (HALL and PATTI, concurring.)

Gruwell v. The Illinois Department of Financial and Professional Regulation

Gruwell v. The Illinois Department of Financial and Professional Regulation
Illinois Appellate Court
Civil Court
Real Estate
Citation
Case Number: 
No. 4-09-0495
Decision Date: 
Tuesday, November 30, 2010
District: 
4th Dist.
Division/County: 
Sangamon Co.
Holding: 
Affirmed as modified.
Justice: 
KNECHT
IDPR adopted finding of Real Estate Disciplinary Board that Plaintiff had engaged in the unlicensed practice of real estate in violation of Real Estate License Act, and imposed a civil fine of $25,000. Plaintiff had worked as independent contractor for Central Illinois For Sale By Owner, which operated a web site hosting classified ads for a flat fee. Plaintiff's statements, in some ads, that she was not a real estate agent did not negate her conduct in holding herself out as an intermediary between seller and prospective buyers, and as listing homes for sale. The Act exempts parties to real estate transactions from licensing requirements when acting in their own behalf; this is to be interpreted narrowly, and does not include an agency requirement. Plaintiff's receipt of commission for each ad she sold, in connection with which she performed licensed activities, is sufficient to be "for compensation" as prohibited by the Act. Fine is overly harsh, considering that Central FSBO was fined $7500 for its violations, thus is reduced to $7500. (TURNER, concurring; APPLETON, dissenting.)

Napcor Corporation v. JP Morgan Chase Bank

Napcor Corporation v. JP Morgan Chase Bank
Illinois Appellate Court
Civil Court
Fraud
Jury Instructions
Citation
Case Number: 
No. 2-09-0179
Decision Date: 
Friday, November 19, 2010
District: 
2d Dist.
Division/County: 
Kane Co.
Holding: 
Affirmed.
Justice: 
HUTCHINSON
Jury verdict for $1.2 million against Defendant bank, for fraudulent misrepresentation in sale of industrial building to Plaintiff company. Jury specifically concluded that Plaintiff proved that Defendant's trust officer had intentionally made false statement that building came with "a new roof in 1994 (tear-off)", and that new roof came with a 10-year warranty. Trial court properly excluded evidence in purchase agreement that Plaintiff had agreed to accept building in "as is" condition; and properly refused jury instruction that Plaintiff had the burden to prove each element of its claim by clear and convincing evidence (IPI 800.02B), and instead gave different instruction (IPI 800.02A) about burden of proof. Even though court could have submitted either instruction as accurate statement of law, court had the discretion to decide which instruction to use. An as-is clause in a commercial or residential real estate contract cannot defeat a claim for fraud. (ZENOFF and McLAREN, concurring.)

House Bill 6951

Topic: 
Mortgage foreclosure
(Colvin, D-Chicago) makes numerous changes in foreclosure proceedings for residential property. (1) It requires that a plaintiff comply with any applicable federal, State, local, or contractual loss mitigation program before legal proceedings may begin. If there is no program applicable or does not result in a modification of the mortgage, the plaintiff must review the mortgage under any other programs it uses. (2) Creates “foundational requirements for affidavits used in foreclosure proceeding that includes a detailed description of the affiant's claimed personal knowledge. (3) If a note is not attached to the complaint, the plaintiff must file a detailed affidavit about the efforts to locate the note and the note's terms and riders. (4) Each foreclosure complaint must include a loss-mitigation affidavit describing what steps were taken by the plaintiff to assess the mortgage loan's eligibility for modification under designated federal programs. (5) A foreclosure judgment must include a finding by the court that the plaintiff complied with applicable federal, State, or local loss-mitigation requirements or that there are no such applicable requirements. If the plaintiff has not complied, the proceedings are stayed until the court determines compliance. House Bill 6951 may be heard in House Judiciary next week, and is an initiative of Attorney General Lisa Madigan.
View Full Text of Legislation

House Bill 5055

Topic: 
Mortgage Foreclosure Article
makes several changes to foreclosure law affecting notices and judicial sales. Governor Quinn amendatorily vetoed it to delay the effective date to Jan. 1, 2011, and the House accepted his amendatory veto yesterday. House Bill 5055 does the following. (1) Units of government are required under current law to publish on their websites or post at their main offices where notices of foreclosure and confirmation orders are to be sent to them for residential foreclosures. If a unit of government doesn't do this, House Bill 5055 creates a default procedure where these notices and orders may be sent by first-class mail to certain designated county or municipal officers. (2) For judicial sales, it allows a party to name the person who is to conduct the sale in the complaint or by separate δ 15-506(f) motion as a special matter in the judgment of foreclosure. If no person is appointed by a δ 15-1506(f) motion, the plaintiff may choose any person to conduct the sale who must be either (a) previously appointed in any matter under δ 15-1506(f) before this new law's effective date, (b) any judge, or (c) the sheriff in the county where the real estate is located. (3) For residential real estate, it requires a copy of the confirmation order to be sent by first-class mail to the last-known property insurer of the foreclosed property.
View Full Text of Legislation

The Township of Jubilee v. The State of Illinois

The Township of Jubilee v. The State of Illinois
Illinois Appellate Court
Civil Court
Quiet Title
Citation
Case Number: 
No. 3-09-0431
Decision Date: 
Wednesday, October 20, 2010
District: 
3d Dist.
Division/County: 
Peoria Co.
Holding: 
Affirmed.
Justice: 
McDADE
Township filed action to quiet title against State of Illinois, and court granted summary judgment in favor of Township, quieting title to a 2.5 acre parcel of land on "public square" on land where Jubilee College once stood. State converted College real estate, but not public square, from a state historic site to a state park. Court properly found that Township had obtained title via implicitly accepting the proper 1860 statutory dedication of the "public square", as all five statutory requirements were met, including that requisite stones were placed at the four corners of the public square, as is confirmed by the county surveyor's certification. Township's act of granting permission to change path of roadway evidences its assumption of ownership and control over the public square. State's mowing of grass on property was not sufficient to establish adverse possession. (WRIGHT and LYTTON, concurring.)

Bjork v. Draper

Bjork v. Draper
Illinois Appellate Court
Civil Court
Easements
Citation
Case Number: 
No. 2-09-1345
Decision Date: 
Wednesday, September 22, 2010
District: 
2d Dist.
Division/County: 
Lake Co.
Holding: 
Affirmed.
Justice: 
SCHOSTOK
Plaintiffs sued their neighbors, alleging that their alterations to their property (putting addition on residence, adding circle driveway, and adding plants and trees) violated conservation easement on Defendants' property, which was located in Lake Forest Historic District. After hearing, court ordered Defendants to remove a portion of the brick turnaround driveway and to remove certain trees. Appellate court's previous finding that Defendants' violations of easement were not intentional or culpably negligent became binding on all subsequent stages of litigation, and meant that trial court did not have discretion to reassess Defendants' actions. Court did not abuse its discretion in not ordering that Defendants remove any part of the addition to the house, as court found that removal would be greatly disproportionate to any minimal enhancement of the easement's purpose, and addition was not visible from Sheridan Road, from where tourists would view house. (BOWMAN and HUTCHINSON, concurring.)

Mandel v. Hernandez

Mandel v. Hernandez
Illinois Appellate Court
Civil Court
Real Estate Contract
Citation
Case Number: 
No. 1-09-3044
Decision Date: 
Thursday, September 23, 2010
District: 
1st Dist.
Division/County: 
Cook Co., 4th Div.
Holding: 
Affirmed.
Justice: 
GALLAGHER
Court properly denied request for relief consisting of both specific performance and estimated lost resale profits that were uncertain and not contemplated at the time of entering into contract for purchase of real estate to be renovated and resold. Court properly denied posttrial motion asking to amend pleadings to conform to the proofs at trial, as information supporting requested relief was available at time of original complaint. Court properly denied motion to amend pleadings to add a new cause of action, because amendments to a complaint postjudgment other than to conform to the proofs are not permitted. (O'MARA FROSSARD and NEVILLE, concurring.)