Page 30 - John Hundley 2014

selves merge with other banks or fail and are taken over by an existing financial institution
selected by the Federal Deposit Insurance Corporation. Simply put, the Illinois Mortgage
Foreclosure Law does not require the plaintiff to submit any specific documentation
demonstrating that it owns the note or the right to foreclose on the mortgage, other than the
copy of the mortgage and note attached to the complaint. Under section 3-301 of the
Uniform Commercial Code, the party holding the note is presumed to own it.

Illinois law allows servicers and agents to be foreclosure plaintiffs on behalf of the actual
mortgage holder. The assignment of the mortgage and note here shows that it was
assigned to Mortgage Electronic Registration Systems, Inc. as nominee for CitiMortgage.
Black’s Law Dictionary 1149 (9th ed. 2009) defines nominee as either “[a] person
designated to act in place of another” or “[a] party who holds bare legal title for the benefit of
others.” As a result, there is evidence that CitiMortgage was assigned the mortgage.

Owner Has No Right To Surplus Before Sale Confirmation

An owner who would like to recover a surplus due to a mistaken bid at a foreclosure sale may not rely
on § 15-1508(b) of the Mortgage Foreclosure Law (735 ILCS 5/15-1508(b)) if the bidder seeks to vacate
the sale prior to a motion to confirm being filed.

So held the Appellate Court Second District in ING Bank, FSB v. Tanev, 2014 IL App (2d) 131225.

While distinguishing a motion to vacate a sale from a motion to confirm one, the
opinion suggests that an owner hoping to realize the surplus from a sale should move
to have it confirmed. It says § 15-1508(b) does not limit such motions to those filed by
the plaintiff.

While § 15-1508(b) strictly limits the issues in a confirmation hearing, the court
says that prior to a motion to confirm the highest bid at a judicial sale is merely an offer
“the acceptance of which does not take place until the court confirms the sale, before
which there is no true sale in any legal sense.”

Property Still “Residential” Despite Multiple Other Uses

The presence of several non-residential uses on a parcel does not make the parcel non-residential
real estate for purposes of pre-judgment possession so long as there is one and only one dwelling unit on
the property, a panel in the Appellate Court’s Second District has held.

Ruling in BMO Harris N.A. v. Kautz, 2014 IL App (2nd) 140399, the panel distinguished parcels with
two or more dwelling units. Noting that IMFL § 15-1701(b)(1) separates a given dwelling unit from the
remainder of the property only if the real estate “consists of more than one dwelling unit,” the court said
that the presence of several non-residential uses was insufficient and that the entire 5.67-acre parcel was
made residential by the presence of one apartment occupied by the owner.

- John T. Hundley, Jhundley@lotsharp.com, 618-242-0246
W:\users\Brenda\SHARP THINKING\#121.pdf

●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●
THE SHARP LAW FIRM, P.C.

1115 Harrison, P.O. Box 906, Mt. Vernon, IL 62864 • Telephone 618-242-0246 • Facsimile 618-242-1170
www.thesharpfirm.com

Business Transactions • Litigation • Financial Law • Problem Finances • Real Estate • Corporate • Commercial Disputes
• Creditors’ Rights • Arbitration & Mediation • Estate Planning • Probate • Family Law

Terry Sharp: Tsharp@lotsharp.com; John T. Hundley: Jhundley@lotsharp.com;
Rebecca L. Reinhardt: Rreinhardt@lotsharp.com; Darren Taylor: Dtaylor@lotsharp.com

Advertising Material