Page 2 - John Hundley 2016

marital home to pay off a note only the husband had signed. Citing 735 ILCS 5/12-112, the panel
recognized that holding title by the entireties generally “protects a spouse against having his or her
homestead property sold to satisfy the debts of the other spouse.”

However, the panel said, that rule does not apply to consensual liens created by both of the
spouses. “[T]he Cielaks granted a consensual lien on their real estate by mortgaging their property to
secure payment of the loan to Michael,” the court said. “Because both are obligated under the lien,
their real estate is not protected by their ownership of the property as tenants by the entirety.”

Short-Form Pleading Doesn’t Violate Due Process

A panel of the Appellate Court in Chicago has rejected a debtor’s argument that the Illinois
Mortgage Foreclosure Law (735 ILCS 5/15-1101 et seq.) violates due process through its use of the
short-form complaint which incorporates allegations set forth in the statute but not in the complaint.

In Well Fargo Bank N.A. v. Bednarz, 2016 IL App (1st) 152738,
the panel said the debtor lacked standing to make a facial challenge
to the law because he was not in immediate danger of sustaining a
direct injury as a result of enforcement of the statute. Regarding his
argument that the form complaint left debtors “unaware” of the
deemed allegations of 735 ILCS 5/15-1504(c), the panel noted he
had not alleged that he was misled by the procedure.

The panel also rejected Bednarz’ argument that the law violated constitutional separation-of-
powers principles. The essence of this challenge was the theory that the legislature invaded the
judiciary’s province by providing what would be sufficient in stating a claim. “A procedural statute
enacted by the legislature will be deemed an unconstitutional infringement upon the powers of the
judiciary only where that statute irreconcilably conflicts with a rule enacted by our supreme court on a
matter within the court’s authority,” the panel said, concluding that the Mortgage Foreclosure Law did
not “unduly encroach upon the judiciary’s function or conflict with any of the supreme court’s rules.”

Conclusory Pleading Of Capacity OK In Short-Form Complaint

A short-form mortgage foreclosure complaint is legally sufficient if it merely states in ¶ 3(N) that
the plaintiff is the mortgagee, two panels in the Appellate Court in Chicago have ruled. Wells Fargo
Bank, N.A. v. Mundie, 2016 IL App (1st) 152931; Deutsche Bank Nat’l Trust Co. v. Iordanov, 2016 IL
App (1st) 152656.

Moreover, two panels have said recently that the plaintiff adequately alleges capacity by attaching
to the complaint copies of the mortgage and note. Wells Fargo Bank, N.A. v. Mundie, 2016 IL App
(1st) 152931; OneWest Bank FSB v. Cielak, 2016 IL App (3d) 150224. See also Bank of N.Y. Mellon
v. Rogers, 2016 IL App (2d) 150712.
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