February 17, 2021 - .NET Framework

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Real Estate Case Law Update

Elizabeth FaberATG

Chicago

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Real Estate Case Law UpdateFebruary 17, 2021

Presented by: Elizabeth L. FaberEscrow Department Manager and Claims CounselAttorneys’ Title Guaranty Fund, Inc.


Elizabeth FaberATG

Chicago


Cases

Appraisals Condominiums Contracts

– Authority– Breach of Contract– Specific Performance

Discovery Mortgage Foreclosure Search Tax Deed – Take Notice

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Elizabeth FaberATG

Chicago


Appraisals


Elizabeth FaberATG

Chicago


Appraisals Fact Pattern

Sellers listed home for sale at asking price of $1.495M.

Zillow’s website listed the home’s Zestimate at $1,333,350.

Sellers asked Zillow to either remove the Zestimate price or increase it.

Zillow did not comply.

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Elizabeth FaberATG

Chicago


Is a Zestimate an Appraisal Under Illinois Law?

Patel v. Zillow, Inc., 915 F.3d 446 (2019)– Illinois Real Estate Appraiser Licensing Act

225 ILCS 458/1

– Illinois Uniform Deceptive Trade Practices Act 815 ILCS 510/1 - 510/7

– Sampen v. Dabrowske 222 Ill.App.3d 918, 165 Ill.Dec. 314, 584 N.E.2d 493

(1st Dist. 1991)

– Hartigan v. Maclean Hunter Publishing Corp. 119 Ill.App. 3d 1049, 75 Ill.Dec. 486, 457 N.E.2d 480

(1st Dist. 1983)


Elizabeth FaberATG

Chicago


Condominiums

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Elizabeth FaberATG

Chicago


Condominium Fact Pattern

Condo Declaration– Required prior written consent before altering unit.– Prohibited Structural element alternations.

Unit owner removed a beam partially located in their unit.

Association filed an injunction action demanding beam be replaced.

Parties settled. Condo Association invoiced unit owner for remediation

work. Unit owner filed a motion to reconsider.


Elizabeth FaberATG

Chicago


Was the new evidence previously available?

Bradenberry Park Condo. Ass’n v. Taleb, 2020 IL App (1st) 200442– Landeros v. Equity Property and Development

321 Ill. App. 3d 57 (2001)

– Young v. Alden Gardens of Waterford, LLC 2015 IL App (1st) 131887

– U.S. Bank National Association v. Randhurst Crossing LLC 2018 IL App (1st) 170348

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Elizabeth FaberATG

Chicago


Contracts

Authority

Breach of Contract

Specific Performance


Elizabeth FaberATG

Chicago


Authority Fact Pattern #1

Unrecorded quitclaim deed from Wife to Wife and Husband jointly.

Husband assisted with listing property.

Only Wife signed contract.

Husband refused to convey his interest.

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Elizabeth FaberATG

Chicago


Did Wife breach the contract?

The John Franklin and Dorothy Bickmore Living Trust v. Nanavati, 2020 Ill. App (2d) 190710– Crum v. Krol

99 Ill. App. 3d 651, 54 Ill.Dec 864, 425 N.E.2d 1081 (1981)

– Academy Chicago Publishers v. Cheever 144 Ill. 2d 24, 161 Ill.Dec. 335, 578 N.E.2d 981 (1991)


Elizabeth FaberATG

Chicago


Authority Fact Pattern #2

Teamsters Union and an LLC entered into an LPA.

The secretary-treasurer of Teamsters Union signed LPA.

Consent Document

Teamsters Union went into emergency trusteeship before LPA terms were met.

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Elizabeth FaberATG

Chicago


Did the Secretary-Treasurer have authority?

1550 MP Road LLC v. Teamsters Local Union No. 700, 2019 IL 123046, 433 Ill.Dec. 60, 131 N.E.3d 99 (2019)– 765 ILCS 115/0.01 et seq. (West 2010)

– Illinois State Bar Ass’n Mutual Insurance Co. 355 Ill. App. 3d, 290 Ill.Dec. 394, 821 N.E.2d 706 (2004)


Elizabeth FaberATG

Chicago


Knowledge Fact Pattern

First-time homebuyers bought property adjacent to Longmeadow Parkway.

Longmeadow Parkway expansion and improvement

Buyers file breach of contract claims against sellers, broker, and seller’s attorney.

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Elizabeth FaberATG

Chicago


Were Seller’s representations/omissions discoverable?

Cosentino v. Kunkle 2019 IL App (2d) 181001-U, 2019 WL 4318750– Common Law Fraud Elements

False statement of material fact

The defendant knew that the statement was false.

The defendant intended that the statement induce the plaintiff to act.

The plaintiff relied upon the truth of the statement.

The plaintiff incurred damages resulting from relying on the statement.


Elizabeth FaberATG

Chicago


Were Seller’s representations/omissions discoverable?

Cosentino v. Kunkle 2019 IL App (2d) 181001-U, 2019 WL 4318750– Breach of Contract Elements

A valid and enforceable contract between the parties

The plaintiff performed the contract.

The defendant breached the contract.

The plaintiff was injured as a result of the breach.

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Elizabeth FaberATG

Chicago


Specific Performance Fact Pattern

V Land agreed to sell Lobo three properties so that Lobo could take advantage of Section 1031 of the Internal Revenue Code.

Paragraph 3 of Contract– Purchase Price Adjustment

Paragraph 8 of Contract– Permanent Loan

Paragraph 5 of Contract– Title Evidence


Elizabeth FaberATG

Chicago


Was Lobo entitled to specific enforcement?

Lobo IV, LLC v. V Land Chicago Canal, LLC,2019 IL App (1st) 170955 (2019)– Specific Performance Elements

The existence of a valid, binding, and enforceable contract.

Compliance by the plaintiff with the terms of the contract, or proof that the plaintiff was ready, willing, and able to perform the terms of the contract.

The failure or refusal of the defendant to perform its part of the contract.

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Elizabeth FaberATG

Chicago


Discovery


Elizabeth FaberATG

Chicago


Discovery Fact Pattern

Property was a 10-acre parcel used as a dumping site for debris.

Rule 214(a)

Owner argued that the request violated the 4th

Amendment.

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Elizabeth FaberATG

Chicago


Can an owner object to Supreme Court Ruel 214(a) on constitutional grounds?

The People of the State of Illinois ex rel. Lisa Madigan v. Stateline Recycling, LLC, 2020 IL 124417– Illinois Supreme Court Rule 214(a)

– The Carle Foundation v. Cunningham Township, 2017 IL 120427


Elizabeth FaberATG

Chicago


Mortgage Foreclosure

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Elizabeth FaberATG

Chicago


Mortgage Foreclosure Fact Pattern #1

Borrower made two separate payments to cure default loan.

Bank said payments were insufficient and late.


Elizabeth FaberATG

Chicago


Was there a genuine issue of material fact?

Deutsch Bank National Trust Company v. Berrera, 2020 IL App (3d) 180419– 735 ILCS 5/2-610(b) (West 2014)

– 735 ILCS 5/2-103(b) (West 2014)

– Illinois Supreme Court Rule 303(a)(3)

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Elizabeth FaberATG

Chicago



Section 15-1503(b)

Prior to August 16, 2019– Noncompliance was grounds for dismissal, without prejudice.

After August 16, 2019– Noncompliance would result in the proceeding being stayed.

Incomplete address on notice sent before August 16, 2019


Elizabeth FaberATG

Chicago


Is an amendment to Section 15-1503(b) retroactive?

Bank of New York Mellon v. Sperekas, 2019 IL App (1st) 191168– Landgraf v. USI Film Products

511 U.S. 244 (1994)

– People v. Hunter 2017 IL 121306

– Substantive or Procedural Change to the Law?

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Elizabeth FaberATG

Chicago



Loan modification for defaulted mortgage

Motion to stay the sale and leave to file a counterclaim

Foreclosure court confirmed the sale and lender issued a deed.


Elizabeth FaberATG

Chicago


Were the plaintiff’s claims barred under Section 15-1509(c)?

Adler v. Bayview Loan Servicing, LLC, 2020 IL App (2d) 191019– 735 ILCS 5/15-1509 (c) (West 2018)

– RESPA and Fraud Act violations

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Elizabeth FaberATG

Chicago



Borrower filed a motion to quash the day after court approved sale.

Borrower not served at her residence.

Mortgage company made attempts at other addresses.


Elizabeth FaberATG

Chicago


Was service of process by publication appropriate?

Deephaven Mortgage LLC v. Jones, 2020 IL App (1st) 191468– 735 ILCS 5/2-206 (West 2018)

– Cook County Cir. Ct. R. 7.3 (Oct. 1, 1996)

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Elizabeth FaberATG

Chicago



Foreclosing lender argued that it was superior to other mortgages.– Harris

– Homecoming

Subrogation by paying off loans


Elizabeth FaberATG

Chicago


Was the plaintiff’s lien subrogated to the Harris and Homecoming lien?

Wilmington Savings Fund Society, FSB v. Zarkhin, 2016 IL App (2d) 180439 (2019)– Conventional Subrogation

Express agreement to the effect that the party paying the debt on behalf of the third party will be able to assert the rights of the original creditor.

The loan proceeds were used to refinance the mortgage(s) as to which the lender seeks subrogation.

No harm will come to an innocent third party if the lender is granted priority.

There has been no gross negligence.

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Elizabeth FaberATG

Chicago



Property located in DuPage County.

Property owner served in Cook County.

Service return showed the address and zip code, but not the county.

Property foreclosed and new purchaser bought the property.


Elizabeth FaberATG

Chicago


Is the current owner a bona fide purchaser?

JPMorgan Chase Bank, N.A. v. Robinson, 2020 IL App (2d) 190275– 735 ILCS 5/2-1401(e)

(West 2018)

– Boundary lines of Chicago and DuPage County

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Elizabeth FaberATG

Chicago



Foreclosed owner served via substitute service.

Eight years after the foreclosed owner was served and current owner took title, foreclosed owner filed a petition to vacate the judgment of foreclosure and sale.


Elizabeth FaberATG

Chicago


Was defendant properly served?

BankUnited, National Association v. Giusti, 2020 IL App (2d) 190522– 735 ILCS 5/2-201(a) (West 2010)

– 735 ILCS 5/2-1401(e) (West 2018)

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Elizabeth FaberATG

Chicago


Search


Elizabeth FaberATG

Chicago


Search Fact Pattern

“Carroll V. Raines” or “Carrol V. Raines”

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Elizabeth FaberATG

Chicago


Did the misspelling make the lien undiscoverable?

United States v. Z Investment Properties, LLC, 921 F.3d 696 (2019)– Internal Revenue Code, 26 U.S.C. Section 6323

– 26 C.F.R. Section 301.6323(f)-1


Elizabeth FaberATG

Chicago


Tax Deed – Take Notice

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Elizabeth FaberATG

Chicago


Tax Deed – Take Notice Fact Pattern

First Take Notice– 2014

Second Take Notice– 2014 (2013 incld)


Elizabeth FaberATG

Chicago


Was there strict compliance?

In re Application of the County Collector (Blossom63 Enterprises v. Devonshire, LLC), 2020 IL App (1st) 191464– Article 22 of the Property Tax Code (35 ILCS 200/22-5)

– DG Enterprises, LLC-Will Tax, LLC v. Cornelius 2015 IL 118975

Documents

February 17, 2021 - .NET Framework