REAL ESTATE CASE LAW UPDATE 2008

 

By Steven B. Bashaw

Steven B. Bashaw, P.C.

Suite 800

1500 Eisenhower Lane

Lisle , Illinois 60532

Tel.: (630) 322-9990

Fax.: (630) 322-9993

e-mail: sbashaw @bashawlaw.com

(Copyright 2008 - All Rights Reserved)

 

 

In addition to encouragement from the Illinois Institute of Continuing Legal Education and the Illinois State Bar Association’s Real Estate Section Council, it should be noted that Chicago Title Insurance Company helps underwrite the production of these real estate case law updates. Chicago Title is committed to the role of attorneys in real estate transactions and their continuing education in this area. Its staff attorneys are pleased to offer their view points on various developments in the law as set forth below from the perspective of a title company serving the public and the attorneys who represent their clients in real estate transactions.

 

 

EDITOR'S MEACULPA: Yes....I know, I know. It's been quite a while, and a good many have given up on the prospect of seeing the Keypoints renewed. But...all hope is not lost....never lose hope. In my professional life, a few cases won, and a few lost, and a good number resolved, leading me back to the pile of accumulated cases on my 'other desk' to read and get caught up...and there is just too much 'good stuff' not to share, so here are the first few of some of the cases we haven't shared over the past months. A fairly representative collection of the cases that came down affecting real estate practitioners will be collected in the materials presented at the upcoming IICLE 4th Annual Real Estate Short Course, February 12-13, 2008 , and the DuPage County Bar Association Mega Seminar, April 5, 2008 . I hope you can come out and see Joe Fortunato and I -- we like to hear you jeer and see thumbs up or down !

 

 

1.  CONDOMINIUM ASSOCIATIONS; TURNOVER AND DETAILED ACCOUNTING:

 

The number of times one hears about contentious issues that arise when a developer turns management of a condominium over to the unit owners far outnumber the instances where the turnover is without incident and routine. The Illinois Condominium Property Act provides that a “detailed accounting” is to be provided by developer within 60 days after election of the first unit owner board of managers; which is required to be within 60 days after 75% of the units are sold or three years after recording the declaration. (765 ILCS 605/18.2(b)(i) and 18.2(d)(2) ). In many situations, the issue becomes whether the developer has properly paid assessments on units during the development period. The Act requires that the developer pay assessments on unsold units beginning with the first conveyance and to collect assessments from owners of sold unit during the period from the first sale until turnover to the unit-owner controlled board. (735 ILCS 605/9(a) ) In Metropolitan Condominium Association v. Crescent Heights , (1st Dist., November 22, 2006 ), Ill.App.3d 995, 859 N.E.2d 271, 307 Ill.Dec. 271 http://www.state.il.us/court/Opinions/AppellateCourt/2006/1stDistrict/November/1060340.pdf, the unit-owner board filed a three count complaint against the developer, Crescent Heights and its property manager, (Sudler), for declaratory judgment and a “detailed accounting” pursuant to Section 18.2(d)(2). The developer contended that it had complied with the Act’s requirement of a detailed accounting due to the fact that it had employed Sudler as the management agent during development, and the unit-owner board continued on with Sudler as its manager following turnover; therefore having access through the management agent of all records and accounting on unit assessments. The unit owners argued that the information provided by the management agent was insufficient and that the Act’s requirement for a “detailed accounting” mandated “a breakdown of which units were sold, when they were sold, what assessments were paid for each unit, when the assessments were paid, and whether the Developer properly paid assessments for all units during the period prior to the initial sale.” The trial court granted the developer’s motion for summary judgment on the basis of that argument, and the Association filed this appeal.

Noting that “The purpose of this requirement [the detailed accounting of section 18.2(d)(2)] is to insure that the developer does not commingle funds received from the sales of units with money collected and used for the operation of the association. (Citing M. Perlstein, Condominium Management, IICLE, 2000)”, and that the Act provides that the account must set forth the “source” and “nature” of the receipts, the Appellate Court reversed the trial court. Holding that a “detailed accounting” under the act must include the sale dates of individual units, the assessments paid on each unit following the sale of the first unit, and the dates on which assessments were paid the Court found the agency relationship with both the developer and the unit owner board did not preclude the necessity for the detailed accounting by the developer. The purpose of permitting the unit owners to verify that the developer has complied with its duty to pay assessments on unsold units would otherwise be thwarted.  Additionally, while Sudler served as the management agent both prior to and after turnover, “the composition and interests of the condominium associations fundamentally change upon the turnover”,  and it can not be said that to manage for the developer is essentially the same as managing for the unit-owners in order to avoid an independent detailed accounting.  “Construing section 18.2(d)(2) to exempt a developer from complying with this statutory duty whenever a unit-owner-controlled board retains a property manager initially hired by a developer-controlled board would undermine this purpose.”

 

2.  FORCIBLE ENTRY AND DETAINER; JURISDICTION BY POSTING:

In Equity Residential Properties v. Nasolo, (1st Dist., March, 2006), 364 Ill.App.3d 26, 847 N.E.2d 126, 301 Ill.Dec. 467http://www.state.il.us/court/Opinions/AppellateCourt/2006/1stDistrict/March/1050610.pdf , the tenant, Nasolo, attacked the jurisdiction of the trial court to enter an order for possession based on posting notice, lost in the trial court, but won a reversal on appeal.

Nasolo’s primary contention on the appeal was that the landlord did not make sufficient effort at serving her personally before posting. The record indicated that after filing suit for non-payment of rent, the landlord placed summons with the Sheriff. The return of service revealed that four different deputies attempted to serve Nasolo at the rented apartment on four different occasions without success. The last return remarked that the reason the tenant was not served was “moved” and that the apartment appeared to be “vacant”. Based on this, the Plaintiff’s attorney filed an affidavit stating that Nasolo could not be found so that process could be served upon her, and that her place of residence “upon diligent inquiry cannot be ascertained.” The Forcible Entry and Detainer Act provides that if the plaintiff is unable to obtain personal service, an affidavit may be filed stating that on due inquiry the defendant cannot be found, the last place of residence, or if that place is unknown, that upon diligent inquiry it can not be determined, to support constructive notice by posting followed by mailing notices. Here a judgment for possession was entered ex parte based on this limited jurisdiction. (“The statute further specifies that notice by posting conveys limited jurisdiction to the court: ‘However, in cases where the defendant…is notified by posting…and the defendant…does not appear generally, the court may rule only on the portion of the complaint which seeks judgment for possession…” )

Nasolo’s argument was that she had been generally available for personal service at the apartment (except for the time during which she was working, 8:00 am to 8:00 pm weekdays and occasionally on weekends) and at her work address disclosed to the Landlord in the rental application she had provided.  She argued in the trial court that the Landlord could have and should have done more to serve her before resorting to posting notice.  The Landlord in turn argued that the numerous efforts by the deputies and its own management agents sufficiently demonstrated that Nasolo was not amenable to process and posting notice was necessary. The trial court agreed with the Landlord, but the First District Appellate Court thought otherwise.

“Every defendant…is entitled to receive the best possible notice of the pending suit and it is only where personal service of summons cannot be had, that substituted or constructive service may be permitted…Securing jurisdiction by constructive service ‘is a concession of the law to the hard circumstance of necessity…only allowable in certain limited cases, and then only after strict compliance with the statutes governing such service… The phrases ‘due inquiry’ and ‘diligent inquiry’ in that statute are not intended as useless phrases but are put there for a purpose…Superficial efforts at complying with the statute will not suffice…Instead the law ‘requires an honest and well-directed effort to ascertain to ascertain the whereabouts of a defendant by an inquiry as full as the circumstances can permit…Depending upon the particular circumstances of a case, inquiring with neighbors, inquiring with known counsel, checking court records, and investigating employment information may be part of a ‘due inquiry’ and ‘diligent inquiry’ required of a plaintiff intending to rely on constructive service.”  The party claiming jurisdiction by posting notice has the burden of proof of strict compliance with the statute to confer jurisdiction.  Here, the record suggested that the Landlord did not make due or diligent inquiry, and could have at least attempted service on the tenant at her known place of employment, but did not do so before resorting to posting.  While there were affidavits from agents of the Landlord’s management agent indicating that they had contacted Nasolo and she knew that she was in arrears on her rent, had mailed a certified letter to her at her work place, and contact with her during which she made partial tenders of her rent accompanied by promises to pay the balance, the Court viewed these inconsequential: “More importantly, a defendant’s actual knowledge that an action is pending or that service has been attempted is not the equivalent of service of summons and would not relieve the plaintiff of its burden or vest the court with jurisdiction.” Faced with two cases on this issue reaching different conclusions, (Household Finance v. Volpert, 227 Ill.App.3d 453, and First Federal Savings and Loan Ass’n v. Brown, 74 Ill.App.3d 901),  the Court’s decision here analyzes each case in some detail and determines that “the more analogous case is Brown, (citation), where the sheriff’s return of service suggested further investigation was warranted, but the plaintiff did nothing more…Instead of investigating…the mortgage lender [in Brown] sought constructive service by publication and obtained a default judgment order…[creating] a significant issue with respect to the truthfulness of the affidavit filed by the plaintiff’s attorney for service by publication…We find the circumstances are analogous to Brown’s and that an evidentiary hearing is warranted here”, and vacated the Order entered against Nasolo and remanded the case for hearing.

(Ed. Note: This decision, while within the context of Forcible Entry and Detainer,  notes that much of the precedent relied upon relates to constructive service by newspaper publication pursuant to Section 5/2-206 of the Code of Civil Procedure  in foreclosure and other types of proceedings, but specifically states that “this authority is nevertheless generally relevant here.”)

 

3.  HOME REPAIR AND REMODELING ACT: SUBCONTRACTORS AND QUANTUM MERUIT DEFENSES REJECTED:

 

Since coming into effect on January 1, 2000, and especially in the past two years, the Illinois Home Repair and Remodeling Act, (815 ILCS 513/1), has received a bit of attention and some significant comment from the Courts. (See Central Illinois Electrical Services, LLC v. Slepian, (3rd Dist., 2005), 358 Ill.App.3d 545, 831 N.E.2d 1169, and MD Electrical Contractors, Inc. v. Abrams, (2nd Dist., 2006), 369 Ill.App.3d 309, 859 N.E.2d 1070.) As a result, we know that where a contractor performs home repair, improvement or remodeling on residential real estate for a sum in excess of $1,000, a written contract signed by the home owner must be obtained, and a copy of the pamphlet “Home Repair: Know Your consumer Rights” must be provided to the owner, prior to the beginning of the work. In Slepian the Third District held that the Act applied as a bar to a mechanic’s lien claim, under some pretty extended circumstances. In Abrams, an electrical subcontractor sued a homeowner in quantum meruit to recover the balance due for a home improvement project, and the Second District found that since the Act does not apply to subcontractors, the failure to provide a written contract and consumer pamphlet was not a basis to dismiss and there was no violation of the Act.

The 2007 contribution to this body of law is Smith v. Bogard, (4th Dist., December 26, 2007 ), http://www.state.il.us/court/Opinions/AppellateCourt/2007/4thDistrict/December/4070240.pdf.  Dan R. Smith Building Services brought an action to recover for construction work on the Bogard’s home consisting of a living room addition to their existing home.  The Bogard's motion to dismiss based on violation of the Home Repair and Remodeling Act was granted by the trial court, and Smith appealed contending that the Act did not apply as a bar because (1) he was a subcontractor rather than a general contractor, and (2) his action claimed recovery under quantum meruit which was not equitably barred by the Act.  The Appellate Court affirmed, finding that Smith was not a subcontractor and “the Act does apply to Smith and his violations of the act preclude his recovery …under… equitable theories.”

Smith contracted directly with the Bogards and communicated directly with them through out the project,. There was no specific general contractor, and nothing in the record indicated that Smith was a subcontractor under the direction of a general contractor with only specific and limited duties.  “Unlike the court in Abrams, we need not decide the general issue of whether the provisions of the Act apply similarly to subcontractors as general contractors because under the specific facts of this case, Smith was ‘a person engaged in the business of home repair’ within the meaning of the Act.”

Moreover, the Court rejected the claim that recovery could be had under unjust enrichment or quantum meriut, noting that “Allowing a contractor a method of recovery when he has breached certain provisions of the Act would run afoul of the legislature’s intent of protecting consumers, would reward deceptive practices, and would be violative of public policy.”

 

 

4.  LANDLORD TENANT; Chicago RLTO & “OWNER OCCUPIED” EXEMPTION:

 

The Chicago Residential Landlord/Tenant Ordinance, (Chicago Municipal Code Section 5-12-020(a) ),  contains provisions so onerous and potentially punitive to landlords in their dealings with tenants, one can only wonder to what lengths landlords and their attorney would go to avoid application of the ordinance in their business relationships".  In Detrana v. Such , (1st Dist., November, 2006), 368 Ill.App.3d 861, 859 N.E.2d 142, 307 Ill.Dec. 142, http://www.state.il.us/court/Opinions/AppellateCourt/2006/1stDistrict/November/1051263.pdf , when sued for violations of the RLTO relating to the return of the security deposit and interest thereon, the landlords, (Jerry and Serifa Such), argued that their property was exempt under the Ordinance as “owner occupied”.  Jerry and Serifa lived elsewhere, but the basis of their contention was the fact that Serifa’s 78 year old father, Nasrulla Murtus, who was also a title holder by virtue of a quit claim deed to himself, Jerry and Serifa, resided and occupied the basement apartment of the premises. It was undenied that Murtus’ furniture and clothing were in the apartment, and that he received his mail there.  The tenant/plaintiff, Detrana, filed an affidavit stating that she never saw, communicated or met with Murtus at the property,  that there was no electric service, heat or telephone to his alleged basement apartment, and that the elder man did nothing concerning the management of the building and kept his ‘ownership’ secret”.  The trial court, finding that Murtus was a title holder,  but that there was an issue of fact relating to his occupancy, conducted a trial to determine the facts; and then entered judgment in favor of the landlord on the RLTO counts based on the building being “owner occupied” by Murtus. After the trial, the Suchs filed a petition for sanctions against Detrana’s attorney alleging that nine sanctionable filings or statements by the attorney. Not to be outdone, Detran also filed a petition for sanctions pursuant to Supreme Court Rule 137. The trial court sanctioned the Plaintiff’s attorney for “Taking a legal position that a titleholder is not an ‘owner’ of property” and for filing under the RLTO without a basis in fact and for the improper purpose of harassment.

On appeal, the First District rejected the argument that an “owner must exercise control of the property that is to be excluded” for the “owner occupied” exclusion of the Ordinance to apply. The Ordinance is clear and unambiguous in its definition of an “owner” as a person “in whom is vested all or part of the legal title to property, or all or part of the beneficial ownership and a right to present use and enjoyment of the premises.” This is not the same as the “owner-occupier-controlled” standard the tenant urged, and not the intention of the Chicago City Council in enacting the RLTO with its stated exemption for owner occupied property. In 1993, the Court in Meyer v.Cohen, (1st Dist., 1993), 260 Ill.App.3d 351, 632 N.E.2d 22, rejected an “actual occupancy” interpretation of the Ordinance as interjecting uncertainty subject to continual changes based on unintended distinctions “thus controverting the express purpose of the statute, i.e., to fix more clearly the rights and obligations which landlords and tenants have vis-à-vis each other.”

Turning to the sanctions issues, the court noted that the Plaintiff’s attorney’s argument was whether the ordinance’s exemption of “owner occupied” requires an element of control, and this was a proper legal argument; especially in light of the fact that no case law directly on point existed and the Court had considered another case on the Ordinance’s occupancy exemption in the Meyer case. Accordingly the trial court’s imposition of sanctions was an abuse of discretion.

 

 

5.  LIS PENDENS; DIVORCE PROCEEDINGS AND JUDGMENT LIENS:

The Vogas are a pretty litigious family, and the interaction between the father’s suit against his son and the son’s pending divorce create a tidy scenario for the application of the doctrine of lis pendens in Voga v. Voga (2nd Dist., November 5, 2007), 376 Ill.App.3d 1075, 878 N.E.2d 800, http://www.state.il.us/court/Opinions/AppellateCourt/2007/2ndDistrict/November/2070176.pdf .  The scenario begins with LeRoy Voga suing his son, Lyle Voga, to recover on three promissory notes in April, 1999. Things were not going well for Lyle that year, and in June, 1999, a dissolution of marriage case with his wife Teresa was filed, and a lis pendens relating to the dissolution was recorded. In July, 1999, LeRoy obtained a default judgment against Lyle in the action on the notes for $238,000, and records a memorandum of judgment against Lyle. A year later, in June, 2000, the court awards Teresa title to the marital home in the process of dissolving her marriage to Lyle. Prior to that, the title had been held by Lyle and Teresa as joint tenants. More than a year later, (the Court’s opinion notes “Thirty months after Leroy received the default against Lyle), LeRoy served Teresa with a notice of levy on the marital home to collect on the judgment. Teresa intervened in the levy case and filed a “Petition to Quash Levy” and a “Petition to Quiet Title”, alleging the since LeRoy took no action to enforce his 1999 judgment until after the dissolution of marriage judgment was entered awarding title to her, his judgment lien did not attach to the property. LeRoy’s argument countered that when he filed his memorandum of judgment, the marital property was still jointly owned by Lyle and Teresa, and was therefore subject to the levy to satisfy the judgment. The Court’s distinction was based on the doctrine of lis pendens. First, finding that a dissolution of marriage that deals with real estate as a marital asset is a proper subject of a lis pendens, the Court notes that LeRoy had actual and constructive notice of Teresa’s claim to the marital property at the time of the entry of his judgment, and was bound by the judgment of dissolution awarding the real estate to her. (Remember the judgment was entered and the memorandum recorded after the lis pendens, although before the dissolution.) The “memorandum of judgment gave LeRoy’s estate a lien not against the Sandwich property itself but, rather, against Lyle’s interest in the Sandwich property; i.e., his joint tenancy…and [one] who has constructive notice of the suit, is bound by the result of that litigation as if he had been a party from the outset…Therefore, as a matter of law, LeRoy was a subsequent purchaser who, when he obtained his memorandum of judgment on July 1, 1999, was already bound by whatever the trial court decided in the dissolution case. The judgment in that case extinguished Lyle’s interest in the Sandwich property. Once Lyle’s interest in the property ceased to exist, any lien that LeRoy had on that interest could not survive.” As a result the trial court was affirmed in quashing the levy and summary judgment quieting title in favor of Teresa.

(Our good friend, Dick Bales, of Chicago Title Insurance Company, noted in his comments on this case that “I really wonder if this decision will result in an increased number of family law attorneys recording lis pendens when they file dissolution actions for their clients. Hmmmm……)

 

6.  MORTGAGE FORECLOSURE; CONFIRMATION OF SALE AND THIRD PARTY BIDDERS- ONCE, TWICE, THRICE:

There were three significant cases in the arena of mortgage foreclosure litigation and the confirmation of sale over the last year or so. First, In Mortgage Electronic Registration Systems, Inc. v. Jerry Thompson, (1st Dist. November, 2006), 368 Ill.App.3d 1035, 859 N.E.2d 621, 307 Ill.Dec. 332, http://www.state.il.us/court/Opinions/AppellateCourt/2006/1stDistrict/November/1052720.pdf , the trial court’s decision not to confirm the foreclosure sale of property to a third party bidder was affirmed despite the argument that the effect would be to destabilize judicial sales. Then, in  Washington Mutual Bank v. Boyd, (1st Dist., December, 2006) 369 Ill.App.3d 526, 861 N.E.2d 1041, 308 Ill.Dec. 476,  http://www.state.il.us/court/Opinions/AppellateCourt/2006/1stDistrict/December/1060305.pdf., the resulting decision is diametrically opposed to the Thompson case, which decision is specifically referred to,  and which “reached the  opposite conclusion in a case involving nearly identical facts” just the month before.  Then, in May, 2007, the First District ruled in Household Bank v. Lewis , 373 Ill.App.3d 420, 869 N.E.2d 351, 311 Ill.Dec. 677, http://www.state.il.us/court/Opinions/AppellateCourt/2007/1stDistrict/May/1060517.pdf ,  that the trial court abused its discretion in refusing to confirm the sale, noting that the mortgagors’ redemption rights had expired, and their attempts to redeem after the judicial sale to a third party were without effect.

The Thompson’s residential mortgage was foreclosed and a sale held at which a third party bidder, Cronus Projects, Inc., was the successful bidder.  Nonetheless, the Thompsons entered into a contract to sell the real estate and obtained a payoff letter directly from their lender (without knowledge of the plaintiff’s attorney in the pending foreclosure), in the period between the sale and confirmation.  At the confirmation hearing, the trial court refused to approve the sale, finding that approval of sale would violate Section 15-1508 in that “justice would not otherwise be done”, ordered that the sale bid be returned to Cronus, and ordered that the third party be awarded damages; (later determined to be $1,000 for attorney’s fees and $940.00 representing interest on the bid during the time it was held by the sale officer).  The third party bidder appealed.

The facts further indicate that at the hearing to confirm the sale it was determined that the amount tendered by the Thompsons to the lender between the sale and hearing date was $32 less than the total amount due. Arguing that that sale and payoff occurred subsequent to the foreclosure sale and the lis pendens was recorded, the third party focused on the effect of the trial court’s decision in “destabilizing judicial sales”.  The First District’s focus, however, was on whether the refusal of the trial court to confirm the sale was an abuse of its discretion.  Noting that the trial court “acted consistently with the policy of Illinois foreclosure law that favors the protection of equity in the home of a mortgagor and allows redemption.”, and that the First District had previously held that “We recognize and acknowledge the need to promote stability in the conduct of a judicial sale. (citations)” The Court’s decision emphasizes: “However that policy can not be given ascendancy over the articulated purpose of the Illinois Mortgage Foreclosure Law to protect the equity of a mortgagor by permitting mortgage redemptions prior to forced sales and thereby to protect against the forced sale of property at prices well below fair market value.”  Further noting that the payoff of the mortgage by the Thompsons facilitated the satisfaction of two other liens on the real estate that would have been extinguished by the foreclosure sale and trial court balanced the interests of the Thompson’s purchasers in addition to the preservation of their equity, the Appellate court  stated: “Although we might not have come to the same conclusion as the circuit court in this case, we cannot say that it acted arbitrarily, without conscientious judgment or ignored principals of law resulting in substantial prejudice”; i.e., the trial court did not abuse its discretion.

Turning to the issue of the trial court’s award of damages to the sale bidder, the First District notes that the theories of tortuous interference with its rights and loss of prospective economic advantage were raised by the sale bidder for the first time on appeal and therefore waived. Nonetheless, noting that prior case law holds that “it is well established law that the high bidder’s ‘interest evaporates upon the trial court’s determination that the sale will not be confirmed [and]…What the trial court decides to do with the property once it determines the sale will not be confirmed is a matter in which the [high bidders] have no discernable interest. Citicorp, 269 Ill.App.3d 301.” the Appellate Court clearly signals how it would have ruled had the issue not been waived.  Likewise, the Plaintiff argued in its response brief that the trial court erred in its award of attorney’s fees and interest in favor of Cronus, but the Court declined to rule on this issue in that it  was not the subject of a cross appeal by the plaintiff,  and therefore also waived.

Another third party bidder at a foreclosure sale, Greenwich Investors XVI, LLC, was the instigator of an appeal of the trial court’s refusal to confirm a foreclosure sale in Washington Mutual Bank v. Boyd, (1st Dist., December, 2006) http://www.state.il.us/court/Opinions/AppellateCourt/2006/1stDistrict/December/1060305.pdf.; and was successful. The resulting decision is diametrically opposed to the Thompson case, which decision is specifically referred to, and which “reached the opposite conclusion in a case involving nearly identical facts” just the month before. (See MERS v. Thompson, (1st Dist., November 3, 2006 ), http://www.state.il.us/court/Opinions/AppellateCourt/2006/1stDistrict/November/1052720.pdf.  In the case before the Court here, Washington Mutual filed a foreclosure against Janice and Tommy Boyd relating to their residential real estate on South Lafayette Avenue in Chicago , Illinois . Tommy died shortly after the foreclosure complaint was filed, and Washington Mutual amended the complaint to name unknown heirs and devisees of Tommy Boyd. A judgment was entered which provided that the redemption period would expire on May 10, 2005 . Thereafter, a sale was held and Greenwich Investors XVI was the successful bidder for a bid of $66,000. On May 31, 2005 , the trial Court granted Boyce’s motion to vacate the foreclosure sale and granted 21 days to close a sale of the property. On July 8, 2005 , Florence Pittman, with financing from Argent Mortgage Company, LLC, purchased the property from Boyce for $110,000. Pittmand and Argent then intervened in the foreclosure case and argued that they had relied upon a payoff letter issued by Washington Mutual Bank in purchasing and did not have actual knowledge of the foreclosure sale. On November 23, 2005 , the trial court vacated the judgment and sale, finding it would be unjust to approve the foreclosure sale, and dismissed the foreclosure action. The First District reversed, specifically noting the recent, contrary decision in MERS v. Thompson. Premised upon the Illinois law that provides that after a sale there is no equitable right of redemption, and here all of the conduct relied upon by Pittman and Argent occurred long after the redemption period expired on May 10, 2005, the Court determined that a valid payoff could not occur because a foreclosure sale had already taken place, and therefore the trial court abused its discretion by refusing to confirm the sale. Although Courts in prior cited decisions appear to have reached a different result and had refused to confirm sales where there were payoffs or unjust results, (See Commercial Credit v. Espinoza, Fleet Mortgage v. Deale, and Citicorp Savings v. First Chicago), “These cases are not applicable to the case at bar because all of the events that led the courts to refuse to confirm the foreclosure sales occurred within the redemption periods, before the foreclosure sales, that is, before the deadlines”. Although the foreclosure sale here produced a significantly lower sale price, ($66,000 vs. $110.000), “sale price alone may not be enough to deny confirmation” and this “does not change the fact that the purported sale occurred after the deadline.” Pittman and Argent relied upon a Washington Mutual mortgage payoff letter, but that letter contained specific language that stated a foreclosure sale would occur unless the loan was resolved prior to the foreclosure sale date. Disagreeing with the reasoning in the decision in MERS v. Thompson, Justice Gieman here notes that the other “court ignored the fact that, as discussed above, the Illinois Mortgage Foreclosure law provides that, after a foreclosure sale, a mortgagor no longer has right of redemption. “Second, in referring to the purpose of Illinois foreclosure law, the Mortgage Electronic Registration System court quoted Fleet Mortgage Corp. but ignored the fact that Fleet Mortgage Corp. specifically provides that the articulated purpose is ‘to protect the equity of a mortgagor by permitting mortgage redemptions prior to foreclosure sales’.

The final stage in this saga is Household Bank v. Lewis, (1st Dist., May, 2007),  http://www.state.il.us/court/Opinions/AppellateCourt/2007/1stDistrict/May/1060517.pdf , where the Court holds that the trial court abused its discretion when it refused to confirm the sale to a third party because the mortgagors had sold the property at a private sale and in order to avoid a forfeiture. Citing both the Boyd and Thompson cases, the Court stated: “Although we recognize that the judicial sale yielded a lower price than the private sale to Addie Glenn Tate, this does not change the fact that the private sale occurred after the deadline. Accordingly, we find that the trial court abused its discretion by refusing to confirm the judicial foreclosure sale. In so finding, we disagree with the decision in Mortgage Electronic Registration Systems, Inc. where another division of this court ignored the fact that a mortgagor no longer has a right of redemption after a foreclosure sale, and relied on cases where the circumstances that led the trial court to refuse to confirm the foreclosure sales occurred before the expiration of the redemption periods, not afterwards, as here.