Page 1 - John Hundley 2015

Mortgage Law Roundup

Sharp Thinking

No. 125 Perspectives on Developments in the Law from Sharp-Hundley, P.C. January 2015

Plaintiff Must Show Due Inquiry Before Publication

Three attempts to serve process at approximately the same hour over a four-day period do not
“demonstrate a well-directed effort to ascertain the whereabouts of defendant by inquiry ‘as full as
circumstances permit’” and hence fail the law’s preconditions for resort to publication service, a panel of
the Appellate Court in Chicago has ruled.

Ruling in JPMorgan Chase Bank, N.A. v. Ivanov, 2014 IL App (1st) 133553, the court said that a
mortgage foreclosure judgment based upon publication service which in turn was based upon such
insufficient service efforts was void.

Characterizing the plaintiff’s efforts to find and serve the owner as “casual, routine, and spiritless,” the
court said 735 ILCS 5/2-206 requires the plaintiff to file a sufficient affidavit before service by publication is
justified and “a defendant is not required to file affidavits in order for the trial court to find a plaintiff’s
affidavits insufficient.”

Eviction Statute Does Not Trump IMFL On Possession

No provision of law allows a junior lienholder to trump the rights of the mortgagee under the Illinois
Mortgage Foreclosure Law (IMFL) and hence a lienholder which had gained possession via a forcible
entry and detainer action must yield possession to a mortgagee entitled to possession under 735 ILCS
5/15-1701.

So has held a panel of the Appellate Court’s First District. Urban Partnership Bank v. Winchester-
Wolcott, LLC, 2014 IL App (1st) 133556.

The adverse claimant in Urban was a condominium association, which argued that because it (not
the mortgagor) was in possession, the possession rules of IMFL § 15-1701 did not apply. The court
rejected that argument.

Surplus May Not Be Allocated To Post-Sale Tax Payment

A putative surplus at a foreclosure sale may not be awarded to the plaintiff-purchaser to reimburse it
for a real estate tax payment made after the sale, a panel of the Appellate Court’s Second District has
held.

Ruling in Bank of America, N.A. v. Higgin, 2014 IL App (2d) 131302, the panel invoked provisions of
the Illinois Mortgage Foreclosure Law (IMFL) as well as the general principle that a foreclosure bidder
takes subject to all liens.

The plaintiff-purchaser argued it had bid too much because it mistakenly thought it had paid the taxes
before the sale.

●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●
Sharp Thinking is an occasional newsletter of Sharp-Hundley, 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-Hundley lawyer at the phone number or one of the addresses provided on page 2 of this newsletter.