(June 2001)

By Steven B. Bashaw

Steven B.  Bashaw, P.C.

Suite 1012

1301West 22nd Street

Oak Brook, Illinois  60523

Tel.: (630) 974-0104

Fax.: (630) 974-0107

e-mail:  sbashaw

(Copyright 2001 - All Rights Reserved)



(Editor’s Note: 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 monthly production of these real estate law Keypoints. 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. This month, Dick Bales has some interesting thoughts on the numerous discussions we have seen recently on the ISBA Website relating to avoiding probate in real estate transactions through a “bond in lieu of probate”.)





The law enunciated by the Second District Appellate Court that a mortgage lender owes a duty of good faith and fair dealing in Voyles v. Sandia Mortgage Corp., (2nd Dist., 2000), 311 Ill. App. 3d 649; 724 N.E.2d 1276; 244 Ill. Dec. 192, has just now entered into the common parlance of real estate litigators; (in the last six months, I have cited this decision four times, and had it cited to me 3 times by defendants).  This month, however, the Illinois Supreme Court issued its decision reversing the Second District in Voyles v. Sandia Mortgage Corp., (May 24, 2001) -- leaving borrowers’ attorneys with an empty quiver in their arsenal.


You may recall the facts in this case; after a long period of dispute about a payment increase, refusal to accept payments from a tenant, credit reports affecting her ability to purchase another home, and foreclosure, Graceia Voyles first brought her mortgage current, and then brought an action in the Circuit Court of DuPage County against Sandia Mortgage Corporation seeking damages for its reports to credit agencies.  The trial court found that Sandia was negligent in submitting the credit reports and failing to correct inaccuracies, awarding her damages in the sum of $10,000.00.  The trial court refused to rule in favor of Ms. Voyles on her other theories of defamation, tortuous interference with prospective economic advantage, and breach of the implied duty of good faith and fair dealing, however.


On appeal, the Second District found that the lender had intended the consequences of its credit reports and therefore acted intentionally, reversing the trial court’s judgment in favor of the lender on the aspects of the case relating to defamation and tortuous interference.  Most emphatically, the Second District reversed the trial court, finding the lender breached its implied duty of good faith and fair dealing, giving the borrower a cause of action; and it is on this basis that the decision is most commonly cited.


The Illinois Supreme Court granted the lender’s petition for leave to appeal, and reversed the Appellate Court, affirming the judgment of the circuit court.  Importantly, the Supreme Court specifically ruled in favor of the lender’s argument that the Second District erred in recognizing an independent cause of action in tort for breach of an implied duty of good faith and fair dealing arising from the mortgage contract: “…we decline to recognize the cause of action in the circumstances of this case. Until the decision below, appellate court panels which had squarely addressed the question had consistently refused to recognize an independent tort for breach of the implied duty of good faith and fair dealing in a contract.”  The Court’s decision was based on three things it did not find present in the case: (1) it did not find that the lender intended to create a credit controversy, (2) it did not find that it is advisable to recognize a cause of action for breach of the implied duty of good faith and fair dealing in these cases, and (3) it did not find a need to expand the reach of the limited cause of action created in insurance policy duty-to-settle cases to mortgagor-mortgagee cases.


Lender’s counsel will especially appreciate the finding by the Court that the lender need not provide a detailed explanation of an increase in monthly mortgage payments; given the language of the mortgage. Sending a new payment booklet showing the increased payment was sufficient.  There was no ‘false statement’ in the reports to the credit agencies to support defamation. There was no intentional and unjustifiable interference to support the tort of interference with economic advantage.


The period during which it appeared that the Courts were going to take the side of borrowers who have suffered at the hands of less and less competent and responsive lenders and servicers seems to have been short lived.





There have been decisions declaring pleadings invalid when the parties’ attorneys do not sign the pleadings themselves, but resort to stamps or allow others to “sign” for them.  (See Bachmann v. Kent, (1st Dist 1997), 293 Ill.App.3d 1078, 228 Ill. Dec. 299, 689 N.E.2d 171, where a notice of rejection of an arbitration award was invalid under Supreme Court Rule 137 where it was signed by a secretary.)  The trial court in Knolls Condominium Association v. Czerwinski, (2nd Dist., May 10, 2001), refused to accept the 30 day notice plaintiff served upon the owner of a condominium unit to support its action for possession for unpaid assessments in a forcible entry and detainer case. The notice bore the stamped signature of the attorney, followed by a proof of service statement signed by the handwritten signature of another person, which was then notarized.  The trial court found that the notice was improper and dismissed the complaint, sua sponte, expressing doubt that a stamped signature is “authentic”, capable of being notarized, and therefore would not support the action.


Reversing, Justice Byrne’s decision notes that Section 9—102(a)(7) provides that a Condominium Association can file an action in forcible entry and detainer against an owner of a condominium unit for failure to pay their proportionate share of common expenses, and that Section 9—102(a)(7) requires a demand signed by the person claiming such possession, his or her agent, or attorney, as a prerequisite for the cause.  Requiring that the notice be “signed”, however, does not require that the signature be “subscribed” in handwriting:  Anything which can be reasonably understood to symbolize or manifest the signer’s intent to adopt a writing…” is sufficient, and “This may be accomplished in a multitude of ways, only one of which is a handwritten subscription.”  The decision notes that reported cases have held that endorsement stamps on checks for deposit and stamps of magistrate signatures on search warrants have not invalided those documents, and, most recently, the Electronic Commerce Security Act, 5 ILCS 175/1—101 et seq., contains a clear statement that alternative forms of signatures, (electronic signatures), are legally acceptable in trade and commerce.  Accordingly, using a stamp to indicate the intent to “sign” the 30-day notice to the unit owner was sufficient, and plaintiff’s complaint should not have been dismissed.





The Illinois Property Code, 35 ILCS 200/1—1 et seq., provides that an “occupant” or real property must be served with notice of the expiration of the period of redemption as a prerequisite to obtaining a tax deed.  In Ex Sites, L.L.C. v. First Union Bank of North Carolina, (1st Dist., April 25, 2001), the issue was whether the adult daughter of the owner of the property who was living on the property was an “occupant” under the Code, and therefore the tax deed was invalid without service upon her as argued by the bank. The Court held that she was not. Although the daughter permanently resided on the property since 1991, and had not been served with any notices of the tax sale proceedings, there was no evidence that she had any right to exercise any control of the property or had any possessory rights. The trial court found that the tax deed petitioner had used due diligence in attempting to find and serve her, (she was not listed in the telephone directory, not a registered voter, a “For Sale” sign was on the property, there were no names on the mailbox, and no one answered the door or contacted the person who inspected the property and left a card taped to the front door.). Her father and the bank were both found and diligently served, and therefore the deed ought not be vacated.





In April, 2001, we reported the case of Prince v. Rosewell, (1st Dist, March 16, 2001), to illustrate the case law applying specific facts to the provisions of the Property Code allowing an owner to recover the loss occasioned by the issuance of a tax deed on their residence their “without fault or negligence”.  Mr. Prince was not able to recover in that case despite the fact that he was 72 years old, blind in one eye, partially blind in the other, suffered from high blood pressure, diabetes, a pinched nerve, heart attacks and sclerosis of the liver, an amputated right leg and had no formal education beyond the fifth grade.  The “other side of the coin” is evident in this month’s case applying the same statute to arrive at a far different substantive result, (but also affirming the trial court’s determination).  In Hedrick v. Bathon, Madison County Treasurer, (5th Dist., March 21, 2001),  the County Treasurer argued that Ms. Hedrick failed to pay her property taxes when due because of her “inability to manage her own affairs due to mental illness” and not due to her own fault or negligence. She admitted that she received the notice that the taxes were due, but “just put them away to deal with later” because of an anxiety disorder, and that her principal method to cope with stress was by drinking. The trial court heard testimony from a clinical psychologist diagnosing Ms. Hedrick with avoidant personality disorder, among other illnesses. The Court rejected the County’s theory that it is an essential element under the statute that the petitioner plead and prove that they are barred from bringing an action for the recovery of the property in order to be compensated from the fund. The decision notes that the statute to allows compensation to a real estate owner who resides in property containing four or less dwelling units when the trial court that issued the deed determines they are equitably entitled to just compensation.  The payment comes from the fund generated from fees charged to tax buyers.  Accordingly, the petitioner need not show that she was without fault or negligence under the statute, but only need prove that she resided in the residential property and is “equitably entitled to relief”.  Here, Ms. Hedrick met the criteria of the statute. She was the owner, the property contained four or fewer dwelling units, and she lived there at the expiration of redemption.  She need not prove that she was barred from attacking the tax deed, and “a trial court has broad discretion in determining whether an owner is entitled to compensation, and its conclusions will not be disturbed on appeal absent an abuse of that discretion.”


The only apparent way to reconcile the results in these two cases is to recognize the deference paid to the trial court’s determination of when an owner is “equitably entitled to just compensation”; Ms. Hedrick was, Mr. Prince wasn’t.





Now that summer is upon us and we and our clients are buying backyard barbeques and swimming pools, there is certainly going to be at least one telephone call or cocktail party conversation about the liability your neighbor may be undertaking by purchasing that trampoline that hangs invitingly, although menacingly, from the ceiling of the local warehouse club.  The issue, of course, is whether the dangers associated with these trampolines are “open and obvious”, thereby obviating a homeowner’s duty to warn guests.  If you have been reading the reported cases over the last few years carefully, you may have seen Ford ex rel Ford v. Nairn, (4th Dist., 1999), 307 Ill.App.3d 296, 717 N.E.2d 525, where the Court held that a trampoline in a backyard is an open and obvious danger, granting summary judgment in favor of the property owner and manufacturer on the issue of liability.  The trial court in Sollami v. Eaton, (5th Dist., March 21, 2001), followed the decision in Ford ex rel Ford v. Nairn and granted summary judgment in favor of the defendant homeowner based on application of the “open and obvious” theory.  On appeal, the Fifth District reversed, and respectfully disagreed with the Fourth District’s opinion.  Noting that several sections of the trampoline assembly and user’s manual stressed the fact that the equipment should only be used under strict supervision of instructors, (United States Gymnastics Federation certified instructors, no less), and provided warning placards to be attached to the trampoline by wire ties, (which Mr. Eaton failed to reattach after he found them on the ground), Justice Maag concluded that certain risks of harm associated with jumping on the trampoline, (such as the “rocket jump” that caused this injury), were not open and obvious to a teenager such as the Plaintiff.  Mr. Eaton, the owner, had access to the warnings and instructions for use in the owner’s manual, the Court held. Accordingly, whether the teenager should have known of the hazard, whether the home owner should have warned of the hazard, and whether the home owner’s knowledge of the danger were superior, thereby requiring warnings, are issues of fact, and summary judgment was inappropriate.


The Illinois Premises Liability Act, (740 ILCS 130/2) provides that a landowner’s duty to entrants onto his property is one of reasonable care under the circumstances. They are not required to foresee and protect their guests against injury from conditions that are “open and obvious”.  The duty of the owner to warn and protect are based upon superior knowledge of the condition, (Mr. Easton read the assembly and user’s manual warnings), and his liability was an issue of fact.


Justice Welch dissented.  He stated his belief that the potential danger of using a trampoline was “open and obvious”, and agreed with the law set forth in Ford ex rel Ford v. Nairn.


Accordingly, whether a trampoline is an appropriate addition to your client or neighbor or your own backyard depends on your judicial geography and still remains to be seen.





An action under quo warranto is a statutory process (735 ILCS 5/88-101) that is the only appropriate vehicle for challenging a completed annexation of land, and was filed by two groups of Plaintiffs against the Village of Lake Bluff in People ex rel Graf v. The Village of Lake Bluff, (2nd Dist. May 7, 2001), .

A complaint in quo warranto, if leave to file is granted,  requires a defendant  explain by what authority it acts, and seeks to have the court determine whether the exercise of authority by the challenged body was beyond its powers or jurisdiction. This case presents some of the common issues raised in these cases, and good background for those who have not ventured into these waters before.


The first group of plaintiffs was residents of the Village of Lake Bluff who alleged they had standing as taxpayers adversely affected by the annexation because of the increased cost in providing governmental services to the area being annexed. This was held to be speculative and insufficient to meet the requirement that only where one can show a direct, substantial, and adverse impact does one have standing to challenge the annexation. Mere status as a resident is an insufficient basis to raise a challenge. The residents had no standing, and the trial court correctly denied their application for leave to file a complaint in quo warranto.  The other Plaintiff was a resident of the parcel annexed, who alleged that he was adversely impacted due to the fact that he was required to purchase vehicle stickers from the Village, was assessed with Village property taxes, and was required to pay for garbage removal regardless of whether he used it or not. This was a sufficient direct, substantial and adverse impact to confer standing upon him, and the Court then turned to his contention that the annexation was void because the property annexed was not “contiguous” to the Village as required by the Municipal Code (65 ILCS 5/7—1—4). Holding the requirement that the land annexed by the Village be contiguous to the annexing municipality is a jurisdictional prerequisite rather than a mere issue of fact, the Court trial court’s denial of leave to file the complaint for quo warranto as to this plaintiff was reversed and remanded. The decision also notes that the limitation period of one year set forth in 65 ILCS 5/7—1—46 is specifically excepted where the annexed land is not contiguous at the time of annexation and when the complaint is brought, and that an absence of contiguity is jurisdictional which can not be waived by a failure to object during the annexation proceeding.  Finally, Judge Grometer’s opinion ends with a reflection that may be telling of his recent elevation from the trial courts in Kane County to the Second District:  “However, in determining whether to grant leave to file a quo warranto action, the trial courts possess broad discretion…which may consider all surrounding circumstances and conditions, the motives of the petitioner in having the proceeding instituted, and whether the public interest will be served by permitting the action.” (Citations omitted).





A reading of People ex rel Graf v. The Village of Lake Bluff might lead one to believe that all municipalities can only annex properties that are contiguous to their boundaries.  This is the law, however, only in Cook County, the “collar counties” surrounding Cook County, and the St. Louis metro-east area. Elsewhere, contiguity is not required, as is pointed out in The City of Springfield v. Judith Jones Dietsch Trust, (4th Dist., April 13, 2001).  This case focused on a conflict between the City of Springfield and the Village of Chatham relating to jurisdiction over a 36-acre parcel of land owned by the Judith Jones Dietsch Trust.


In 1988, Springfield adopted a comprehensive land development plan pursuant to the Illinois Municipal Code, (65 ILCS 5/11-12-5), and asserted jurisdiction over unincorporated contiguous property within 1.5 miles of its boundaries.  In 1998, the Trust decided to develop the property for sale of single family lots, and, rather than submitting its plans for subdivision to the City of Springfield, it entered into an annexation agreement with the Village of Chatham. Springfield filed a complaint seeking declaratory judgment that the development was within its jurisdiction by virtue of the 1998 comprehensive plan.  Chatham argued that its annexation agreement with the landowner superseded the Springfield’s plan.  Springfield countered with the argument that since the parcel was contiguous to Springfield and more the 1.5 miles from Chatham, (i.e., not contiguous to Chatham), the annexation agreement was illegal;  (citing Village of Lisle v. Action Outdoor Advertising Co., (2nd Dist., 1989) 188 Ill.App.3d 751, 544 N.E.2d 836.).


The Fourth District affirmed summary judgment in favor of Chatham.  Noting that the Municipal Code, (65 ILCS 5/11-15.1-2.1), grants jurisdiction to a municipality over territory to be annexed without regard to contiguity except in Cook County, its collar counties and the metro-east area, the Court’s decision perceives that “Essentially, Springfield asks us to treat Chatham as if it were part of Cook county….and require that annexation agreements may only be entered with property owners of land contiguous to Chatham.”  The legislature specifically limited its prohibition of annexation of non-contiguous land to the areas it perceived municipalities engaged in “predatory annexation”, but this prohibition does not apply to the Village of Chatham.  “Based on our review of the Municipal Code, nothing precluded the execution of the annexation agreement at issue here….The legislature has provided for annexation agreements, and we are unable to discern any intent on the party of the legislature to prohibit such agreements where the property is within 1.5 miles of another municipality, with the exception of those counties specifically listed.”





Guillen v. Potomac Insurance Company, (1st Dist., May 24, 2001),  is a case that appeals primarily to personal injury and insurance defense lawyers because of the intricacy of its duty to defend, indemnification, and coverage issues.  The case has one important lesson for real estate lawyers, however.


The insured was sued for lead based paint poisoning by a minor daughter of a tenant in one of their buildings.  The initial insurance policy obtained by the landowner contained no lead exclusion provision, but later renewals did have an exclusion that denied coverage for bodily injury arising out of the ingestion, inhalation, absorption or exposure to lead.  Potomac refused to deny coverage when the claim was filed and refused to defend the action brought against the landowner. The insured entered into a settlement agreement with the plaintiff to pay $600,000, to be satisfied solely through the assignment of the owner’s rights under the policy, (Can you see this coming?)….  and then the plaintiff filed an amended complaint for declaratory judgment against Potomac.  The insurance company responded with an affirmative defense that it had provided written notice of the addition of the lead exclusion to its insured to the renewal policy and therefore there was no coverage, no duty to defend, and no obligation to indemnify. The plaintiff responded that proper notice of the lead exclusion was required according to the provisions of the Illinois Insurance Code mandating that the insurer maintain proof of the mailing of notices on a recognized U.S. Post Office form or other commercial mail delivery service, (215 ILCS 5/143.14(a), and noting that prior case law from the Illinois Supreme Court had held that “There is no alternative method of providing compliance with the proof of mailing requirements other than to maintain the proof of mailing.” In these circumstances. The insurance company, of course, could not provide the proper proof of mailing, and the Court affirmed the trial court’s ruling that the exclusion never became a part of the policy because the insured were not given property notice of the lead hazard exclusion.  The result was that the plaintiff’s won not only the declaratory action on the policy, but prevailed on the issues of breach of the duty to defend, was estopped from raising any policy defenses to coverage, and had a duty to indemnify.  The only issue remanded to the trial court was whether the settlement amount, which exceeded the policy limits, was reasonable.


The lesson for real estate lawyers is clear: don’t just read the policy; get some good counsel from a practitioner who knows and understands the issues of insurance law, coverage, notice, and policy issues.





(Ed. Note:  Dick Bales and I both subscribe to and participate in the ISBA website discussion groups.  The real estate discussion is combined with the estate planning and transactional lawyers on the “Transactional Law” site, (, The site acts much like a bulletin board on which members can post questions or inquiries to the group, and the members can post replies or answers.  The result is that the collective knowledge of the group is available to members for suggestions and solutions to problems.  Recently, there were several postings relating to the use of “bonds in lieu of probate” to clear title to real estate of decedents. Dick has this to say on bonds in lieu of probate as a member of the title insurance industry:)




The ISBA real estate email list server is an invaluable learning tool. Attorneys can pose questions on a myriad of topics, and any subscriber can submit an answer.


If this list server is any indication, what is somewhat inaccurately called the "bond in lieu of probate" seems to be quite popular now.  This is a process wherein seller's counsel gives the title company an affidavit of heirship, a copy of one or more death certificates, a copy of one or more wills--if the decedent(s) died testate--a personal information affidavit, a personal undertaking, and an additional title premium (but not a bond).  In return, the title company can insure title through the estate of a decedent with no requirement that the estate be probated.  Generally speaking, seller's counsel will obtain deeds from all heirs of the decedent and all legatees named in the will, if one exists.


But it is important to keep in mind that this procedure is useful only if all heirs and legatees are available and cooperative.  In situations involving unknown, unavailable, or recalcitrant parties, the probate of an estate may be the only way to pass insurable title.  And probate may be simpler in the long run.  If you don't think so, just ask some grizzled attorney or title examiner what life was like in the days before independent administration!


Dick Bales, Chicago Title, Wheaton





A recent decision from the Second District in favor of a subcontractor directing the release of funds held by Lake County for excavation on a public sewer project provides both a good overview of the provisions of the Mechanic’s Lien Act relating to public funds, (770 ILCS 60/23), and illustrates the authority of the trial court to distribute funds when the county deposits the balance of money on hand with the Clerk of the Court.  In Westcon/Dillingham Microtunneling v. Walsh Construction Company, (2nd Dist., March 30, 2001), Glenbrook Excavating intervened in an action filed by Westcon/Dillingham pursuant to Section 23.  Westcon’s complaint was filed in two counts. It sought $266,484.85 for payment under the base contract, and $1,048,581.61 for additional work required by virtue of the fact that it encountered unusually difficult subsurface conditions during excavation.  Prior to Glenbrook intervening, Westcon was paid its based contract sum from the funds deposited with the Clerk with the agreement of the then parties, pursuant to order of the trial court, and reserving its right to seek compensation for the additional work. Glenbrook was also a subcontractor, and alleged that it was owed $427,323.31 for its work on the sewer system when it intervened.  Lake County petitioned the trial court to deposit the balance of the amount due on the original contract with the Clerk. This was $769,395.97. Westcon objected to Glenbrook’s motion to release $427,323.31 from this fund as the sum due under its subcontract, arguing that Section 23 required the county deposit an amount sufficient to satisfy all liens, and noting that the funds were insufficient to satisfy both its additional work and Glenbrook’s liens. The trial court indicated that it considered the earlier payment to Westcon as a waiver of any objection to Glenbrook’s request for payment of its base contract amount, and allowed Westcon 30 days to return these funds to be added to the balance on hand with the Clerk to be distributed proportionately.  Westcon did not return the funds, and after 30 days, Glenbrook’s motion to release funds was granted with the Court noting that Westcon’s remaining claim related to additional compensation outside of the original contract. Since it had been paid in full under the original contract, this additional compensation would come from a separate fund should it be successful in its claim. Glenbrook was asking for nothing more than Westcon had itself received by the prior distribution, and Westcon was “judicially estopped” to take a position inconsistent with its prior petition for payment.


The majority opinion by Justice Grometer reviews the purpose of Section 23 to allow a subcontractor working on a public improvement project to assert a lien against payments due to the general contractor, noting that once a lien is perfected, the public body must withhold sufficient funds to pay the amount of the lien.  The subcontractor must then file a suit for an accounting within 90 days, and the public body must either withhold the sum claimed until final adjudication of the litigation or may the sum to the clerk of the court in which the suit is pending to be distributed according to the judgment or other court order. (770 ILCS 60/23(b))  Here, Lake County chose the second alternative by depositing the balance of funds with the Clerk. Because the protection offered by the Act is in derogation of common law, strict compliance with the technical and procedural requirements of the act is necessary.  Once this compliance has occurred and the lien perfected, however, the Act is “remedial” in its impact and to be liberally construed to accomplish its goal of protecting one who, in good faith, has furnished labor and materials for construction of public improvements. “Accordingly, once a lien exists, a court has discretion in shaping a remedy for claims brought under section 23….courts may consider the relative benefits and hardships to the parties in crafting an appropriate remedy.”  Finding that Westcon had received payment for what was due under the original contract and was now claiming compensation for additional extraordinary work, the Appellate decision affirms the trial court noting that Westcon still had an alternative remedy under its contract action and would not be prejudiced by payment to Glenbrook.  Glenbrook, on the other hand, would have suffered hardship by not having received payment on its base contract otherwise.


Justice McClaren specially concurred, emphasizing that Westcon was “judicially estopped” by taking the distribution on this base contract to oppose the same request by Glenbrook.  “Although I agree with the majority opinion, I feel that the patent deficiency of the appellant’s inconsistent position is also dispositive.”


(EDITOR’S NOTE:  Each month I get a good number of telephone calls inquiring about issues and cases discussed in the current and prior month’s articles. It is heartening to know that so much of what we cover actually are “keypoints” to real estate practitioners, but sometimes I am not available, or you, like me, find time to think about pending cases at the oddest hours.  In those events, you will find these “Keypoints”, archived by month with brief topic descriptions, on my website, (, as my “thanks” for your support and encouragement. Please logon to the website, feel free to browse, read, copy the materials and e-mail us there.  As an “added bonus” to those of you who have trouble opening the attachments you receive from me, if you go to my website, and then to the “Publications” section, where you will be able to download the Microsoft Word Viewer.  This will solve all of your problems! We also have the Microsoft PowerPoint Viewer and the Adobe Acrobat Reader download links for your convenience and future use.)