Results

In our litigation practice, we have tackled the latest and most critical legal issues confronting the mortgage servicing industry and have helped define and shape the law in many areas of mortgage lending and servicing. Here are some of our results.

JP Morgan Chase Bank v. Fankhauser
No. 2-07-0140 --- N.E.2d ----, (Ill. App. Ct. 2nd Dist. June 4, 2008) reversing trial court's confirmation of sale to a third party for $32,212.40 on the grounds that confirmation in those circumstances may be unconscionable where the holder of a second mortgage in the amount of $301,000.00 was defaulted.
Homecomings Financial Networks, Inc. v. Hayden, et al.
4-06-1013 (Ill. App. Ct. 4th Dist. February 1, 2008) returning case to trial court where lender, who acquired parcel through foreclosure which was landlocked following tax sale of adjacent parcel, sought a prescriptive easement by necessity; the court finding that losing access to the property for non-payment of taxes was not misconduct warranting a denial of an easement.
Doss v. Saxon Mortgage Services Inc., et al.
06 CV 6170 --- (N.D. Ill. April 17, 2007) dismissing action requesting that a mortgage be rescinded due to a purported TILA violation because the plaintiff had previously deeded his interest in the property to a third party. The court ruled that the action of the plaintiff constituted a sale of the property which terminated the borrower's claim of rescission and therefore failed to state a cause of action for rescission.
U. S. Bank v. Phillips
1-05-1829 (Ill. App. Ct. 1st Dist. June 26, 2006) throwing out fraudulent attempt by mortgagors to "pay" or redeem their loan from foreclosure by "Bonded Bills of Exchange" or other such documents. While not expressly characterizing the mortgagor's efforts as fraudulent, the Illinois Appellate Court determined that such a document was neither a negotiable instrument nor was it drawn on a bank.
React Financial v. Long
2006 WL 1476263 (Ill.App. Ct. 3rd Dist., May 25, 2006) reversing a lower court ruling that a senior mortgagee must first "redeem" a junior mortgage before being allowed to foreclose its own. In holding that junior mortgagees possesses no right of redemption under Illinois law, the opinion superseded the prior rule which made foreclosure by the junior mortgagee dependent on redemption.
Jeffries v. Dutton, et al.
No. 05-CV-4249 (N.D. Ill. May 11, 2006), confirming among other things that: (1) the Fair Credit Billing Act does not apply to closed-end credit transactions; and (2) only section 1681s-2(b) of the Fair Credit Reporting Act provides private right of action in connection with allegedly inaccurate furnished information.
H&H Investments v. Green Tree Fin. Serv. Corp.
No. 3-04-0777 (Ill. App. Ct., 3rd Dist., Nov. 3, 2005), notice sent by real estate tax purchaser to one of mortgagee's offices, but not to mortgagee's registered agent, was not sufficient to support purchaser's application for tax deed as to underlying real estate.
U.S. Bank, N.A. v. Clark
(EquiCredit Corporation of America v. Johnson), 2005 WL 2298183 (Ill. Sup. Ct., Sep 22, 2005), defeating borrower's claim that mortgage loan charges exceeded state-law limitation on "points." The borrowers argued, among other things, that Illinois overrode Section 501 of DIDMCA by amending its usury statute in the early 1990's. Although the appellate court ruled in favor of the borrowers, the Illinois Supreme Court overturned that ruling and invalidated the "points" limitation in Illinois.
King v. First Capital Fin. Serv. Corp.
(Outland v. Mortgage Lenders Network USA, Inc.), 208 Ill. 2d 538, 809 N.E.2d 1287 (2004), defeating putative class action alleging unauthorized practice of law in connection with the charging of document preparation fees. The trial court's decision was upheld by the appellate court, and again by the Illinois Supreme Court.
Manufacturers and Traders Trust Company v. Hughes
2003 WL 21780956 (N.D. Ill. 2003), entering summary judgment on behalf of assignee on borrower's consumer fraud affirmative defenses and counterclaims to a foreclosure action because assignees are not liable for the originator's fraud.
Clark v. Fairbanks Capital Corp., et al.
2003 WL 21277126 (N.D.Ill. 2003), throwing out the borrower's TILA claim against a mortgage loan servicer, the district court accepted the servicer's argument that common law principles of agency do not override TILA's servicer exemption.
In re Smith (Elbert Smith v. First Union National Bank)
Case No. 00 B 06713, 2002 WL 731133 (N.D. Ill. 2002), upholding bankruptcy court's decision that purported state-law "points" limitation was preempted under Section 501 of DIDMCA.
Dowdy v. 1st Metropolitan Mortgage Co. and EMC Mortgage Co.
2002 WL 745851 (N.D. Ill. 2002), rejecting borrower's attempt to raise state-law consumer fraud claim against assignee under HOEPA. The court accepted the theory proposed in our briefs that although HOEPA provides that an assignee is subject to all claims and defenses of the originator, that provision only negated assignee's holder-in-due-course defense, and does not provide the borrower with a cause of action that it did not otherwise possess.
U.S. Bank N.A. v. Whitfield
(Appellate Case No. 1-03-2288), upholding trial court's ruling that it had jurisdiction over mortgagor in the foreclosure proceeding who was previously adjudicated incompetent by a probate court.
The Provident Bank v. Wright
2001 WL 777054 (N.D. Ill. 2001), dismissing borrower's Equal Credit Opportunity Act affirmative defense that failure to provide adverse action notice invalidated the underlying debt.
Associates Home Equity Services, Inc. v. Scott
(U.S. Bankruptcy Court for the Northern District of Illinois, Case No. 00 B 19614 (March 21, 2001)), finding for mortgagee that tax deed was moot because tax purchaser failed to have the stay modified before perfecting tax deed.
Associates Home Equity Services, Inc. v. Armstrong
(Appellate Case No. 01-00-4148), upholding trial court's finding that prior mortgagee's lien securing a revolving credit lien was not extinguished where successor-mortgagee's title company failed to provide instructions to close the account.