News & Updates

By Robert M. Gomberg

For many years, borrower’s attorneys have claimed that the statutory short form mortgage foreclosure complaint authorized by the Illinois Mortgage Foreclosure Law, 735 ILCS-5/15-1101, et. seq. (“IMFL”), is flawed, defective and subject to dismissal on its face. However, in a recent clear and concise opinion, the Appellate Court of Illinois for the First District settled the matter and found no fault with the statutory foreclosure complaint provided for by the IMFL.

In Wells Fargo Bank vs. Bednarz, Wells Fargo filed its complaint in a form authorized by 735 ILCS-5/15-1504(a) seeking to foreclose on Chester Bednarz’s residential real estate. After being served with Wells Fargo’s summons and complaint, Bednarz filed a motion to dismiss arguing that the form of the foreclosure complaint violates the procedural due process guarantees of the United States Constitution and the separation of powers doctrine of the Illinois Constitution.

Wells Fargo responded that Bednarz lacked standing to challenge the constitutionality of the form foreclosure complaint, that the form complaint did not violate due process and that the IMFL was not an infringement on the power of the judiciary.

Judge Michael Otto of the Circuit Court of Cook County’s Mortgage Foreclosure Section denied Bednarz’s motion to dismiss and subsequently entered summary judgment and judgment of foreclosure and sale in favor of Wells Fargo.  Bednarz appealed.

The Appellate Court first stated that all statutes are presumed to be constitutionally validated, and the Appellate Court has a duty to construe all statutes in a manner upholding their constitutionality, citing People ex rel. Ryan vs. World Church of the Creator, 198 Ill 2d 115, 120 (2001).

The Appellate Court then reviewed the “deemed and construed” allegations of the form complaint specified in the IMFL. According to the Appellate Court, the “deemed and construed allegations take a number of normally innocuous and uncontested issues out of play, and, therefore, help form a balance between a lender’s interest that a foreclosure case not be bogged down by formalistic proofs over noncontroversial matters, and a mortgagor’s interest in preserving his property” (citing Wells Fargo Bank, N.A. vs. Simpson, 2015 Ill App. (1st) 142925).

After finding that the defendant lacked standing to raise a facial challenge to the Complaint provisions of the IMFL, the Appellate Court then went on to discuss the constitutionality of the “deemed and construed” allegations of a standard foreclosure complaint. The Appellate Court conducted a thorough analysis of IMFL as its related to the United States Constitution and Illinois Constitution and declared that the “procedural provisions of Section 15-1504 of the Foreclosure Law are not an unconstitutional legislative encroachment upon the rulemaking power of the judicial branch of government.” Therefore, Bednarz’s appeal was denied.

Although it appears that at least one standard defense of the mortgage foreclosure defense bar is no longer applicable—at least for the time being—we all know that there still will be more challenges to the IMFL in the future. For now, the statutory complaint for foreclosure as prescribed by statute is safe from alteration.

If you have questions about mortgage foreclosures or real estate, please contact Robert Gomberg at (312) 332-6194×25 or any other the other attorneys at Gomberg, Sharfman, Gold & Ostler.

By Kim Padjen.

How does one serve a summons on and who represents the deceased borrower? In 2010, the Illinois Supreme Court clarified how to foreclosure a mortgage against a deceased borrower, in ABN AMRO v McGahan, 237 Ill. 2d 526 (2010). The Court addressed the issue of obtaining jurisdiction over a deceased borrower by requiring the foreclosing lender to appoint a special representative to investigate the estate of the deceased.

Recently, Cook County Circuit Court entered a series of General Administrative Orders (GAO) relating to the appointment, payment, responsibility and duties of the special representative in a foreclosure action. GAO 2015-02 states that the purpose for the change is to “reflect the acknowledgement in Supreme Court Rule 113(i) that appointees “stand in the place of “ deceased mortgagors and the further acknowledgement in Section 13-209(b)(1) of the Code of Civil Procedure that such appointments are “for the purposes of defending the action.” Ill.S.Ct.R. 113(i). 735 ILCS 5/13-209(b)(1) (2015).

GAO 2015-02 specifies the minimum amount of information that the lender must provide in its petition to appoint a special representative. The lender must verify that there is no filed petition for letters of office for the deceased mortgagor and that the heirs of the decedent have been notified of the petition or attest that no heirs exist. Also, the lender cannot seek the appointment of a specific special representative. Instead, the GAO provides that the special representative will be selected by the judge from a list of court approved individuals and sets forth the minimum requirements for individuals seeking to be appointed as a special representative.

February 2016 GAO 2016-02 and April 2016 GAO 2016-04 tweak the previous GAO and specify the duties of the special representative. No longer will the special representative file a report that explains his attempts to locate heirs and receive payment of an agreed upon fee. Effective immediately, the reports are eliminated and the fees are to be approved by the Court. Now, the GAOs require the special representative to take a more active role in the proceedings, i.e. to appear in court and litigate the case as attorney for the deceased. Anticipating that court appearances will increase the fees of the special representative, the GAOs set an hourly fee of $200.00 per hour, with total fees not to exceed $1,000.00 unless good cause is shown. The special representative is now required to file a petition for fees which includes a time and task affidavit. Plaintiff is still responsible for the payment of the fees and filing costs of the special representative.

In keeping with its stated purpose in GAO 2015-02, the subsequent GAOs detail the duties of the special representative, provide the application and discuss the submission process for those wishing to be appointed as a special representative. Applications are being accepted until May 31, 2016.