Page 5 - John Hundley 2013

New Developments Update

Sharp Thinking

No. 84 Perspectives on Developments in the Law from The Sharp Law Firm, P.C. February 2013

Price Alone No Basis To Void Judicial Sale, Court Holds

Inadequacy of the sales price, standing alone, is not a sufficient reason to deny confirmation of a
judicial sale, a panel in the Appellate Court in Chicago held late last month.

Although NAB Bank v. LaSalle Bank, N.A., 2013 IL App (1st) 121147, arose under provisions of the
Illinois Code of Civil Procedure for confirmation of sales of real property to satisfy judgments other than
those obtained in mortgage foreclosure actions (735 ILCS 5/12-144.5), the court relied heavily on the
mortgage foreclosure statute and cases thereunder, and virtually obliterated any difference between the
two statutes in terms of the standards for confirmation of judicial sales.

Noting that both statutes say the sale is to be confirmed unless (i) required notice was not given, (ii)
the terms of sale were unconscionable, (iii) the sale was conducted fraudulently, or (iv) justice was
otherwise not done, the panel said a court’s discretion under the “justice” clause is “extraordinarily narrow”
and limited by judicial practices that predated the Illinois Mortgage Foreclosure Law
(735 ILCS 5/15-1101 et seq.). It said the justice clause “provides a narrow window
through which courts can undo sales because of serious defects in the actual sale
process,” but “[i]nadequacy of sale price is not a sufficient reason, standing alone,
to deny confirmation”. Noting the many reasons that a judicial sale might not realize
what critics would perceive to be the proper price, the panel said that when there is
no fraud or other irregularity in the proceeding “the price at which the property is sold is the conclusive
measure of its value.” But see Sharp Thinking No. 9 (June 2008), discussing case law suggesting courts
are vested with considerably greater discretion than NAB infers.

Will, Trust Contest Bars Don’t Affect 2 Interference Suits

The six-month statute of limitations of 755 ILCS 5/8-1(f), which applies to the bringing of a contest to
the validity of a trust that receives a legacy from a will admitted to probate, generally does not apply to a
separate tortious interference with inheritance expectancy suit, a panel in the Appellate Court’s First
District held recently.

The decision in In re Estate of Luccio, 2012 IL App (1st) 121153, applied in the context of a “pour
over” will the decision of the Supreme Court in In re Estate of Ellis, 236 Ill.2d 45 (2009), that the six-month
statute of § 8-1(a) respecting ordinary will contests does not apply to separate tortious interference claims
(see Sharp Thinking No. 26 (Nov. 2009)).

However, attempting to reconcile Robinson v. First State Bank of Monticello, 97 Ill.2d 174 (1983), the
Luccio court said its general rule will not apply where a trust contest is “available” to the litigant, “such that
he is ‘aware’ of his legacy and has an opportunity to contest the trust and to obtain complete relief, but
chooses not to, instead agreeing to take no action against the trust in exchange for a settlement”. A more
liberal interpretation of the availability rule was applied in Bjork v. O’Meara, 2012 IL App (1st) 111617, but,
as predicted in Sharp Thinking No. 56 (Jan. 2012), Supreme Court review of that decision was sought –
and granted.

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Sharp Thinking is an occasional newsletter of The Sharp Law Firm, P.C. addressing developments in the law which may be of interest. Nothing contained in Sharp
Thinking shall be construed to create an attorney-client relation where none previously has existed, nor with respect to any particular matter. The perspectives herein
constitute educational material on general legal topics and are not legal advice applicable to any particular situation. To establish an attorney-client relation or to obtain legal
advice on your particular situation, contact a Sharp lawyer at the phone number or one of the addresses provided on page 2 of this newsletter.