The Illinois Housing Development Authority has recently opened a new court-based rental assistance program. This program can be advantageous to both landlords and tenants if the parties are willing to continue working together through the process of eviction. Under the program, where an active eviction case exists, the program may award a tenant up to $15,000 in back rent. As a part of this award, the program can also award up 2 months rent in the future and $500 towards court costs.

It’s important to note that while the maximum award is $15,000, the amount is based entirely on the amount the tenant owes at the time funds are disbursed, as well as the potential amount for 2 months of future rent if the tenant owes less than the full award amount. Once a tenant fills out their application, the landlord is emailed asking to fill out an application as well. The application is relatively straight forward and just requires the landlord have its documentation as to a lease, ledger, as well as the file stamped Court Complaint and Summons. This is because only active eviction cases are eligible for the funding from this program. Landlords will also want to be sure to save their receipt for filing fees as the application process will request that if the landlord is seeking a reimbursement on court costs.

This applies to any active eviction case as well as new cases filed for the foreseeable future. However, it is not clear how long the funding will last, so if you have a tenant in arrears that you’d like to get paid on, and are willing to work with the tenant as they are not a problem outside of the non-payment issue, it can be a great tool for a savvy landlord to see payment come in on an otherwise struggling income property. Additionally, if the tenant does not qualify for assistance for any reason, you’ll be already be in line in eviction court so you can proceed forward towards a final eviction order along with recovery of the rental property.

Attorney John Norkus is Of Counsel to DeBlasio Law Group and serves the firm on select client engagements.  Mr. Norkus has been practicing law for over 10 years, primarily focusing on real estate issues, both through litigation and transactional matters, as well as working with small businesses on a variety of litigation-related issues that may appear in their day-to-day operations.  For information on scheduling a consultation, call DeBlasio Law Group at (630) 560.1123, or you may reach us through our firm’s website at www.DGLLC.net/contact.

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The Court granted the TRO to prevent the demolition and destruction of the leased property and also awarded mandatory injunctive relief directing the landlord to restore the keypad codes to the building entrances to ensure our client’s right of access to, and quiet use and enjoyment of, the leased office premises, which were critical to its business operations.

Attorney Antonio DeBlasio has been selected by Super Lawyers® in 2008 and in each year from 2014 through 2025.  No more than 5% of Illinois attorneys receive this distinction.  Mr. DeBlasio has over 30 years of experience as an Illinois attorney, representing businesses, individuals, employees, employers, estates and beneficiaries of estates in Illinois.  To reach Mr. DeBlasio, you may call (630) 560-1124.  For more information on the firm, visit www.DGLLC.net.

The post DuPage County Court Grants Emergency TRO and Mandatory Injunctive Relief to Our Client Against Commercial Landlord appeared first on DeBlasio Law Group, LLC.

Antonio DeBlasio, the firm’s founding partner, added that “not all probate and estate planning attorneys can say they have the litigation experience to take a case to a jury.  We do.”

Antonio DeBlasio’s law firm is headquartered in Oak Brook, Illinois, focusing on business and civil litigation, including probate and estate litigation.  With over 27 years of experience representing businesses, individuals and estates in Illinois, the firm has represented hundreds of clients in federal court, Cook County Circuit Court, DuPage County Circuit Court, and the courts in Lake County and Will County.

To discuss your probate and estate planning needs, please contact Antonio DeBlasio at (630) 560-1123.

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In their motions for summary judgment, both Bank of America and the Stuarts claimed that the contractor’s mechanic‘s  lien fraudulently stated that the contractor completed all the work required under the construction agreement by September 12, 2009, when in fact, the contractor did not even begin construction on the Stuarts’ house until sometime in October or November of 2009.  The Stuarts further claimed that the contractor’s mechanic‘s lien falsely stated that they owed plaintiff $46,200 as of September 12, 2009, when the first payment under the parties’ retail installment contract was not due until November 1, 2009.  The contractor did not dispute these allegations, but instead, claimed that the false statements in its mechanic‘s lien amounted to nothing more than “erroneous overcharges and overstatements” and that the record does not support the circuit court’s finding that it recorded the mechanic‘s lien with the intent to defraud defendants. The Court disagreed.

Section 7 of the Illinois Mechanic’s Lien Act provides that: “No such lien shall be defeated to the proper amount thereof because of an error or overcharging on the part of any person claiming a lien therefor under this Act, unless it shall be shown that such error or overcharge is made with intent to defraud.” 770 ILCS 60/7.  Intent to defraud may be inferred from documents containing overstated lien amounts combined with additional evidence. The requirement that there be intent to defraud is designed to protect an honest lien claimant who makes a mistake rather than a dishonest claimant who knowingly makes a false statement. When there is evidence, however, that the lien claimant knowingly filed a lien claim containing false statements the claim will be defeated because the effect of such a lien claimant’s claim is to give the appearance of a greater encumbrance on the property than that to which he is entitled. Thus, not only will Illinois courts invalidate a mechanic‘s lien on the basis of actual fraud, but also on the basis of constructive fraud. The additional evidence required to establish constructive fraud may, however, come in the form of an affidavit, signed by an agent of a contractor’s company, which is attached to the mechanic‘s lien claim, and which falsely attests to the truth of overstatements and overcharges made by the contractor. 

In the Stuart case, the Court ruled that there was “no room for doubt over whether [the contractor], at the very least, committed constructive fraud. The allegations of fraud were not merely based on overstatements or overcharges, but rather on patently false statements that plaintiff used to establish its right to a mechanic‘s lien in the first place.   First, the plaintiff’ contractor’s mechanic‘s lien, recorded on September 17, 2009, falsely stated that all the work required under the construction agreement, including the construction of the garage, basement, and deck, was completed by September 12, 2009. This statement was proven false by plaintiff’s own admission that “it completed work at the subject property in or about June, 2010.” Plaintiff must have known that it had not completed all the work required under the construction agreement as the Department of Buildings only issued a building permit on September 10, 2009.  Likewise, the “completion certificates,” which plaintiff had the Stuarts sign as the project progressed, clearly indicate that plaintiff knew that as of September 17, 2009, it had not constructed any of the land improvements (the garage, deck, and basement) required under the construction agreement.

Beyond providing a fabricated completion date, plaintiff’s mechanic‘s lien also stated falsely that the Stuarts owed plaintiff $46,200 as of September 12, 2009. This statement was proven false by the clear and unambiguous terms of the parties’ retail installment contract, under which the Stuarts were not required to make the first installment payment until November 1, 2009.

Finally, plaintiff attached to its mechanic‘s lien the signed and sworn affidavit of the president of plaintiff’s company, falsely attesting to the truth of the overstatements and overcharges made in its mechanic‘s lien claim.  On appeal, the Court ruled that the circuit court could reasonably infer that plaintiff knew that its mechanic‘s lien contained false statements.  As such, the Court ruled that it “had no choice but to conclude that plaintiff’s mechanic‘s lien, based on patently false statements, constituted constructive fraud.”

DeBlasio Law Group’s founding member, Attorney Antonio DeBlasio, has been selected by Super Lawyers® for Business Litigation in 2008 and in each year from 2014 through 2025. Only 5% of attorneys in Illinois receive this distinction.  Contact Mr. DeBlasio at (630) 560-1123 or via our website, www.DGLLC.net/contact.

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Background

In 2004, Cruz and Juan Calderon purchased a condominium in Chicago. The purchase was financed by a promissory note for $69,800 that Cruz and Calderon executed in favor of Olympus Mortgage Company (Olympus), AAM’s predecessor in interest.  The note was executed on October 22, 2004, and it was secured by a second mortgage on the condominium, executed on the same day.   Although the note’s maturity date is November 1, 2034, section 4 of the note provides for acceleration in the case of default, as follows:

“(B) Notice from Note Holder

If I do not pay the full amount of each monthly payment on time, the Note Holder may send me a written notice telling me that if I do not pay the overdue amount by a certain date, I will be in default. That date must be at least 10 days after the date on which the notice is mailed to me or, if it is not mailed, 10 days after the date on which it is delivered me.

(C) Default

If I do not pay the overdue amount stated in the notice described in Section 4(B) below [sic], I will be in default. If I am in default, the Note Holder may require me to immediately pay the full amount of principal which has not been paid and all the interest that I owe on that amount.”

Under the heading “Giving of Notices,” the note states:

“Any notice that must be given to me under this Note will be given by delivering it or mailing it by certified mail addressed to me at the Property Address above [i.e., the condominium]. A notice will be delivered to me at a different address if I give the Note Holder a written notice of my different address.”

The note expressly referenced the acceleration provision in Olympus’s mortgage on the condominium, as follows:  “In addition to the protections given to the Note Holder under this Note, a Mortgage, dated October 22, 2004, protects the Note Holder from possible losses which might result if I do not keep the promises which I make in this Note. That Mortgage describes how and under what conditions I may be required to make immediate payment in full of all amounts that I owe under this Note.”  The referenced text in the mortgage is a standard acceleration clause titled “Acceleration; Remedies” stating in bold print: “[U]pon Borrower’s breach of any covenant or agreement of Borrower in this Mortgage, including the covenants to pay when due any sums secured by this Mortgage, Lender prior to acceleration shall give notice to Borrower *** specifying: (1) the breach; (2) the action required to cure such breach; (3) a date, not less than 10 days from the date the notice is mailed to Borrower, by which such breach must be cured; and (4) that failure to cure such breach may result in acceleration of the sums secured by this Mortgage, foreclosure by judicial proceeding, and sale of the Property.”

Default in Payment

Cruz and Calderon ceased making payments on the note after July 5, 2005. In November 2005, the senior lender filed an action to foreclose on the condominium. Long Beach Mortgage Co. v. Ortiz, No. 05-CH-20399 (Cir. Ct. Cook County). A judgment of foreclosure and sale was entered, and the condominium was sold at a judicial sale in 2006. Olympus, as the junior lender, was named as a defendant in the foreclosure case but did not participate in the proceedings. After the condominium was sold, Olympus assigned the note to Ameriquest Mortgage Company, which assigned the note to AAM.

Demand Letters

Over the next several years, AAM sent four letters to Cruz demanding payment of the debt. None of the letters were sent by certified mail.

• The first letter, dated February 21, 2008, was sent from AAM’s counsel to Cruz and Calderon at the condominium address. The letter explained that AAM recently acquired the loan file and that “your account is seriously past due” with an unpaid balance of $69,587.60 (e., the entire outstanding principal). The letter also offered a “repayment plan,” under which Cruz and Calderon could pay $487.11 per month for six months to be reevaluated for another repayment or settlement plan, and a “settlement plan,” under which Cruz and Calderon could pay 60% of the principal balance to be forgiven of any remaining obligations. It provided that these offers were good for 60 days, after which AAM would “exercise all of its legal rights” under the loan.
• The second letter, dated May 5, 2008, was sent from an AAM loan counselor to Cruz at a California Avenue address in (Cruz claims he never resided there.) In the letter, the loan counselor recommended that Cruz call him to “work out a solution” with his debt. The letter did not state the overdue amount or provide a period for repayment.
• The third letter, dated January 21, 2010, was sent from AAM’s legal review department to Cruz and Calderon at the California Avenue address. It stated that AAM “has reviewed your account and is currently in the process of forwarding it to our legal ” Again, the letter did not state the overdue amount or provide a period for repayment.
• The fourth and final letter, dated April 23, 2013, was sent from AAM’s counsel to Cruz and Calderon at a Van Buren Street address in Chicago. It stated that Cruz and Calderon owed $69,587.60 in principal and $58,809.24 in accrued interest, for a total of $128,396.84. It further stated that Cruz and Calderon had 14 days in which to make payment in full if they wished to resolve the matter without a lawsuit.

The Lawsuit

In 2013, plaintiff, Associates Asset Management, LLC (AAM), brought a breach of contract action against Cruz, seeking payment on the promissory note with a maturity date of November 1, 2034. The complaint sought the full amount due plus interest, as if the note had been accelerated.

Cruz filed an answer in which he alleged, as an affirmative defense, that AAM failed to give him notice of its intent to declare a default and accelerate the note, which he claimed was a “condition precedent” (e.g., contingency) to filing a lawsuit against him. Cruz stated that under the plain language of the note, AAM was required to send him a pre-default notice, giving him a 10-day grace period in which he could cure the missing payments to avoid default.  He claimed that AAM could not sue him until this was done.

At trial, the court found that personal service of the complaint (lawsuit) on Cruz constituted sufficient notice of both default and acceleration, and  entered judgment for AAM in the amount of $120,402.86, representing the entire principal amount, interest accrued from the date of service until the date of judgment, and attorney fees.

Cruz appealed that ruling and the Illinois Appellate Court agreed, holding that AAM’s suit was premature, that it failed to give proper notice of default and acceleration under the note, and that the mere filing of the lawsuit was not sufficient notice under the terms of the promissory note.  An absolutely devastating outcome for AAM, and a terrific win for the homeowner.

The Winning Arguments on Appeal

On appeal, Cruz argued that AAM’s suit was premature because AAM did not fulfill the contractual conditions precedent to declaring default and accelerating the note. He further argued that the trial court erred when it found that service of process was sufficient to satisfy those requirements.

AAM argued that, because the note provided that “the Note Holder may send … a written notice”, it is permissive rather than mandatory and, therefore, sending such a notice was not required.  The Appellate Court held that while AAM was “technically” correct, concomitantly, the note holder is not required to try and collect any outstanding debt either. The note holder may forbear pursuing its rights in case of nonpayment. But considering the note as a whole, the court ruled that if the note holder wishes to declare default (as AAM clearly did), the only contractual mechanism for doing so was by following the procedure set forth in sections 4(B) and (C). Thus, the Appellate Court agreed with Cruz that, under the plain language of the note, notice is a contractual condition precedent to default.  The Court also ruled that the note required AAM to give a preacceleration notice as described in the “Acceleration; Remedies” clause of the mortgage.

Condition Precedent

The Court next turned to the central issue of this case, namely, whether the trial court erred in concluding that AAM satisfied the note’s predefault and preacceleration notice requirements. Cruz argued that AAM’s notices were inadequate and AAM’s suit was therefore premature. AAM did not dispute that it failed to strictly comply with the note’s notice requirements, but it argues that it gave Cruz the “essential information” to advise him that payment under the note was long overdue.

Under Illinois law, a “condition precedent” is an act that must be performed or an event that must occur before a contract becomes effective or before a party is required to perform.  Accetturo, 2016 IL App (1st) 152783, ¶ 32.  As discussed, the note in this case sets forth conditions precedent to both default and acceleration. Cf. Credit Union 1 v. Carrasco, 2018 IL App (1st) 172535, ¶ 15, 424 Ill. Dec. 302, 107 N.E.3d 1021 (satisfaction of mortgage’s preacceleration notice requirement was a condition precedent to suit); Accetturo, 2016 IL App (1st) 152783, ¶ 33 (same). Where a contract contains express conditions precedent, strict compliance with those conditions is required, and “[c]ourts will enforce express conditions precedent despite the potential for harsh results for the noncomplying party.” Midwest Builder Distributing, Inc. v. Lord & Essex, Inc., 383 Ill. App. 3d 645, 668, 891 N.E.2d 1, 322 Ill. Dec. 371 (2007) (citing Dodson v. Nink, 72 Ill. App. 3d 59, 64, 390 N.E.2d 546, 28 Ill. Dec. 379 (1979) (“It is well established that where a contract contains a condition precedent, the contract does not become enforceable or effective until the condition is performed or the contingency occurs.”)).

On this issue, the Appellate Court ruled that all four of AAM’s demand letters were severely deficient in substance. The first letter did not state the overdue amount, much less give Cruz a 10-day period to pay that amount to avoid default. Rather, it stated that Cruz owed the entire outstanding principal, as if the note had already been accelerated. The second and third letters were even more deficient: they referred generically to “this debt” and “your account” but made no reference to the amount of the debt and did not provide any grace period for repayment. The fourth letter, like the first, described the note as already having been accelerated since it asserted that the entire outstanding principal was “due and owing” and demanded that Cruz pay the entire sum (not just the overdue payments) within 14 days to avoid litigation. These are not mere technical deficiencies; rather, AAM failed to provide most of the information required under the contract. Thus, it ruled that AAM’s letters, whether viewed separately or together, were insufficient to meet the contractual conditions precedent to default and acceleration.

Similarly, it ruled that AAM’s complaint was deficient as a notice of default and acceleration since it neither advised Cruz of the overdue payment amount nor gave a grace period to pay that amount, but sought the full accelerated balance from him.  Thus, it held that the trial court’s finding that the complaint complied with the conditions precedent in the note was against the manifest weight of the evidence. Moreover, it held that AAM’s failure to provide Cruz with the contractually required notices prior to default and acceleration divested AAM of the right to file this breach of contract action, citing Midwest Builder Distributing, 383 Ill. App. 3d at 668 (“[c]ourts will enforce express conditions precedent despite the potential for harsh results for the noncomplying party”).

All in all, this was a tremendous victory for the homeowner who stuck to the plain language of the contract which required notice of default and notice of acceleration before he would be found in default.

DeBlasio Law Group’s founding member, Attorney Antonio DeBlasio, has been selected by Super Lawyers® for Business Litigation in 2008 and in each year from 2014 through 2025. Only 5% of attorneys in Illinois receive this distinction.  Contact Mr. DeBlasio at (630) 560-1123 or via our website, www.DGLLC.net/contact.

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By way of example, the monthly payment for one such rental property was $605.58, including $490.13 for principal and interest and $115.45 for the escrow deposit.  When Homeward took over the servicing of the loans in October 2009, it sent McGinnis a welcome letter that said McGinnis’s payment on that one loan for November 2009 was $843.58, without explaining the basis for the increase.  In December 2009, Homeward sent McGinnis an escrow analysis showing a present payment of $843.58, including $490.13 for principal and interest and $353.45 for the escrow deposit. No explanation was given for the high percentage increase in the escrow deposit portion of the payment. The statement described McGinnis’s new monthly payment beginning February 1, 2010 as $680.08. McGinnis disputed the accuracy of these communications.

On January 15, 2010, Homeward sent McGinnis a letter explaining that the escrow analysis on her loan could have reflected an escrow error and directing her to disregard the December analysis and continue making payments at the previous amount. On February 20, 2010, Homeward sent a second escrow statement that described McGinnis’s present payment as $843.59 through March 2010 and her new payment, effective April 1, 2010, as $638.32. Homeward treated the past payments of $605.58 as partial, and held the funds in a suspense account until there were enough funds to pay off the oldest past-due monthly payment. The interest and late fees continued to mount and Homeward frequently contacted McGinnis and her son by phone and mail demanding payment.

On May 19, 2010, McGinnis sent Homeward a fax explaining that the correct payment for November 2009 through March 2010 should have been $605.58 and providing her own escrow analysis, which was identical to Homeward’s analysis with respect to payments after April 2010. The only difference was the $843.58 that McGinnis refused to pay for November 2009 through March 2010 and associated late fees. Homeward failed to explain or retract the $843.48 amount and the issues persisted throughout 2010. McGinnis continued to pay $605.58 until January 2011 when she began paying the $638.32. From February through May 2011, Homeward returned McGinnis’s payments. On March 22, 2011, Homeward sent a formal notice of foreclosure on and finally foreclosed on July 7, 2011.

At trial McGinnis testified that the experience traumatized her. Her clinical psychologist testified that the events leading up to the foreclosure were a major cause of depression for McGinnis as well as of physical symptoms that included projectile vomiting.  McGinnis, who was retired and relied on her rental properties for income, described the effect of the foreclosure at trial: “I am too old to start over. They have taken my life away from me.” McGinnis also presented at trial a letter that her son had sent to Homeward on December 17, 2009 describing the undue stress Homeward’s constant demands had caused him and his mother. At trial, McGinnis also presented recordings of phone conversations with Homeward in which her son mentioned his and his mother’s frustration with Homeward’s repeated demands for payment and refusal to explain the increase. Homeward’s only witness, a default case manager at Homeward, insisted that McGinnis was obligated to pay any amount Homeward demanded whether reasonable or in error.

In this case, the court agreed that Homeward’s conduct caused McGinnis physical and emotional harm in addition to economic harm; demonstrated an indifference to McGinnis’s health; knew that McGinnis was financially vulnerable; involved repeated actions of misconduct; and found Homeward’s use of the suspense account also involved intentional malice, trickery, or deceit.

The court also agreed that the jury was free to conclude that Homeward knew its conduct was substantially certain to cause McGinnis emotional harm because of four pieces of evidence:  (1) Homeward’s knew its escrow analysis was incorrect yet proceeded to demand payment repeatedly without explanation and proceeded to foreclose; (2) Homeward’s use of the suspense account in which it held her monthly payments in suspense, failed to apply any of those payments to her balance, charged late fees and interest that were not due all the while increasing her monthly escrow by over 300 percent (making the late fees and interest not due); (3) the jury could infer that Homeward knew its conduct was almost certain to cause McGinnis emotional harm from the sheer volume of adversarial communications and threats of foreclosure, the fact that her son told Homeward of the undue stress the errors were causing his mom; and (4) Homeward’s offer to allow McGinnis to avoid foreclosure by giving in to all of its demands, including paying all unexplained monthly payment increases and all late fees and penalties, showed a specific intent to harm.

The court found also observed that Homeward’s conduct as a servicer were “not typical” and went well beyond ordinary threats of foreclosure because Homeward never retracted or justified its demands for payment despite repeated attempts by McGinnis to correct the errors.  Homeward continued to send demands for payment that literally stacked 5 feet high, even though it knew those demands were unreasonable and that its demands were causing McGinnis harm.

Antonio DeBlasio is the founding member of the DeBlasio Law Group.  He has been selected by Super Lawyers® for Business Litigation in 2008 and in each year from 2014 through 2025. Only 5% of attorneys receive this distinction. 

This blog post was co-authored by Casey Delury; Pre-law student at Elmhurst College

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Background Facts: Our client and Sam were friends for several decades and lived together in a house in Chicago.  They did practically everything together; cooking, cleaning, laundry, doctors’ visits and vacations.  When Sam was diagnosed with terminal cancer, our client took care of Sam and his everyday needs.   In a gesture of deep gratitude, Sam executed a deed making our client a co-owner of the house they lived in.  Unfortunately — and you hear this all the time — Sam did not have an estate plan, such as a basic will. So — not surprisingly — when Sam passed away, his nephew from another State filed a citation to recover assets in an effort to take the house back from our client.

The Law: For a deed to pass title from the grantor to the grantee, there must be “delivery” of the deed by the grantor.  In re Estate of Shedrick, 122 Ill. App. 3d 861, 864 (1^st Dist. 1984).  Whether a deed has been “delivered” is a question of the grantor’s intent only, and a manual delivery is no longer required by Illinois law.  Dunn v. Heasley, 375 Ill. 43, 48 (1940); Creighton v. Elgin, 395 Ill. 87, 96 (1946).  Illinois courts do not attach as much importance to the mere manual possession of the deed as they do to the intention of the grantor, as gathered from the whole evidence, in regard to the vesting of title. Vaughn v. Vaughn, 272 Ill. 11, 24 (1916).  If the intention of the grantor to pass title to the grantee is made out by the proofs, Illinois courts have sustained such transfers, even in cases where the manual possession of the deed remained with the grantor.  Id.

In most cases, delivery of a deed is to be inferred from the facts and circumstances which by their very nature are equivocal and depend upon the subjective state of mind of the grantor.  In re Estate of Key, 22 Ill. App. 3d 265, 271 (5^th Dist. 1974).  Whether the requisite intent to make delivery existed, and whether the grantor executed his intention to pass title by a sufficient delivery, are both questions of fact and generally for the jury to decide at a trial.  Id.  Therefore, in such cases, delivery becomes a question of fact and cannot be determined as a matter of law without a trial (i.e., such as by a motion for summary judgment).  Id.

In our client’s case, we successfully argued to the court that whether the decedent actually intended to deliver the deed to our client to pass ownership of the home to our client was a question for the jury to decide at trial and could not be determined in a pre-trial motion for summary judgment.[1]  In re Estate of Key, 22 Ill. App. 3d 265, 271 (5^th Dist. 1974).

Under Illinois law, a grantor’s acknowledgment of delivery is strong evidence of delivery, especially where the certificate of acknowledgment in the deed recites in express terms that the grantor delivered the instrument.  Dunn v. Heasley, 375 Ill. 43, 48 (1940).  As in Dunn, the Deed in our client’s case contained a certificate of acknowledgement reciting in express terms that the grantor (the friend who died of cancer) delivered the deed to our client  The second page of the deed even contained a certification stating that the decedent “acknowledged that he signed, sealed and delivered the instrument [Deed].”  We argued that by itself, this certificate was sufficient reason to deny the motion for summary judgment and proceed to trial. 

Delivery to one joint tenant is sufficient as delivery to all.   We also argued to the Court that delivery of a deed to one of several grantees is equivalent to delivery to all.  McClugage v. Taylor, 352 Ill. 550, 559 (1933); Creighton v. Elgin, 395 Ill. 87, 96 (1946); Klouda v. Pechousek, 414 Ill. 75, 81 (1953).  In our case, the deed named two grantees – the decedent and our client – as joint tenants.  Ex. B-1.  The decedent signed the deed expressly declaring that it was delivered. He also had the deed notarized and kept the deed in the house where he and our client lived. Accordingly, we argued that this evidence showed that the deed was delivered to at least one of the grantees (the decedent), which is, as a matter of law, equivalent to delivery to all the grantees, including our client.

The grantor’s words and acts show that the Deed was delivered.   Illinois law also holds that whether a deed has been delivered is a question of the grantor’s intent only, and a manual delivery is no longer necessary.  Dunn v. Heasley, 375 Ill. 43, 48 (1940).  A formal delivery of the deed is not required.  Baker v. Hall, 214 Ill. 364, 369-70 (1905).  Instead, delivery may be by acts without words, or by words without acts, or by both.  Id.    

In many ways, this case is very similar to another case where the Illinois Supreme Court found a deed had been delivered even though the grantee did not manually receive the deed until after the grantors had passed away.  In Baker v. Hall, 214 Ill. 364 (1905), a mother and father executed a deed conveying land to their daughter.  The deed stated that the mother and father reserved the right “to hold full possession until the deaths of each of the grantors, when the grantee is to have full possession in her own right.”  Baker v. Hall, 214 Ill. 364, 367 (1905).  The deed also stated that it was in consideration of one dollar to them in hand paid and “also in consideration of faithful services rendered” by the daughter in caring for her parents.  Id.  After the deed was signed, it was notarized.  The notary handed the deed back to the father who kept the deed in their home where the daughter also lived.  Id. at 370-72.  The mother died several months later.  There was no evidence that the deed was physically delivered to the daughter, or that the daughter even knew of the existence of the deed before her mother died.  Id. at 369.  Several months after the mother died, the deed was filed with the county recorder’s office.  A suit was then filed seeking to void the deed to the daughter on the grounds that the deed was not delivered to her while her mother was still alive.       

The Supreme Court in Baker agreed that the deed to the daughter was a valid conveyance.  Baker, 214 Ill. at 371-72.  The court reasoned that although the deed was not manually delivered to the daughter, the grantor intended to retain possession of the property during her lifetime, and therefore, her retention of the deed in her home during her lifetime did not undermine the presumption of a valid conveyance.  Id.  Furthermore, the grantor had the deed notarized, and it was held by one of the grantors until the mother died in the house where the daughter also lived with the grantors.  Id. at 370-72. 

The deed is valid even if the grantor retained the deed.   It is not essential to a valid delivery that there should be a manual transfer of the deed from the grantor to the grantee.  Vaughn v. Vaughn, 272 Ill. 11, 23 (1916); Baker v. Hall, 214 Ill. 364, 368 (1905); Dunn v. Heasley, 375 Ill. 43, 48 (1940).  Even if the grantor retains the deed, the weight of authority is decidedly in favor of its validity, unless there are other circumstances, besides the mere fact of his retaining it, to show that it was not intended to be absolute.  Id.  The grantor’s intention to vest title in the grantee is regarded as of more importance than the mere manual possession of the deed.  Id. 

In Vaughn, the father of several adult children executed a deed conveying a farm to one of his sons.  272 Ill. at 23.  The father had the deed notarized, but he never recorded the deed and retained possession of it until his death without ever physically delivering it to the son.  Id. at 27.  After his death, the father’s other children filed a claim against the grantee alleging that the deed was invalid because it was never delivered to the grantee.  The Supreme Court affirmed the finding that the deed was a valid conveyance and that the grantee was the owner.  The Supreme Court ruled that although the father retained possession of the deed before he died, there was no evidence but that the father intended to give the full and complete ownership and title to the farm to the son.  Id. 

Moreover, Sam retained an interest in the House because the deed was to himself and Frank as joint tenants.  Ex. B-1; 765 ILCS 1005/1(b) (a joint tenancy is an estate with right of survivorship).  Where a grantor reserves an interest in the property and its possession and control, the retention of the deed is not inconsistent with the idea that delivery was intended and that the deed is operative.  Hill v. Kreiger, 250 Ill. 408, 414-15 (1911); Baker v. Hall, 214 Ill. 364, 371 (1905); Childress v. Childress, 298 Ill. 185, 191 (1921); Buck v. Garber, 261 Ill. 378, 382 (1913) (the reservation of a life estate in a deed to the grantors creates a presumption that it was intended the deed should take effect immediately as a conveyance to the grantee, for otherwise there would be no reason for such reservation).

The Court agreed with our law firm that the decedent’s retention of the deed in the house where he lived (with our client) is not inconsistent with the idea that the decedent intended to “deliver” the Deed to our client, and that a trial was necessary. 

Where the deed is beneficial to the grantee, it is presumed that he accepted delivery of it.   We also pointed to Illinois law which holds that if a deed of voluntary conveyance is beneficial to the grantee, it will be presumed that he accepted delivery of the deed, even though he had no knowledge of the existence of the deed until after the death of the grantor.  Baker v. Hall, 214 Ill. 364, 367-69 (1905); Dunn v. Heasley, 375 Ill. 43, 48 (1940); Mclugage v. Taylor, 352 Ill. 550, 558 (1933).  In this case, our client did have knowledge of the deed before his friend died.  But, even if he did not, the law holds that it must be presumed that our client accepted the deed as a matter of law because the deed was a voluntary conveyance for our client’s benefit and also because our client promptly had the deed recorded after his friend’s death.  See Vaughn v. Vaughn, 272 Ill. 11, 23 (1916) (deed was a valid conveyance even though grantor retained possession of the deed and it was not recorded until after the grantor’s death). 

In cases like this, the law presumes there was delivery of the deed. Baker v. Hall, 214 Ill. 364, 367 (1905); Mclugage v. Taylor, 352 Ill. 550, 558 (1933); Waters v. Lawler, 297 Ill. 63, 70 (1921).  At trial, the burden of proof is on the grantor, or those claiming through him (i.e., the Petitioner nephew), to show by clear and convincing evidence that the grantor (the friend who passed away) did not intend to convey title to our client.  Baker, 214 Ill. at 367-69 & 371; Waters, 297 Ill. at 70; Vaughn v. Vaughn, 272 Ill. 11, 22-23 (1916).   The presumption of the law is in favor of delivery, especially where the parties have a great degree of confidence in each other.  Baker v. Hall, 214 Ill. 364, 367 (1905).  Furthermore, the presumption of the law is in favor of delivery, especially where the transfer is voluntary, instead of part of a sale.  Baker v. Hall, 214 Ill. 364, 367-68 (1905); Mclugage v. Taylor, 352 Ill. 550, 558 (1933); Walters v. Lawler, 297 Ill. 63, 70 (1921); Vaughn v. Vaughn, 272 Ill. 11, 22 and 26 (1916).

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For example, if you are obtain a judgment against a former employer (e.g., company) for past due wages or commissions and you serve a citation on the company, the company generally cannot pay anyone before the company pays you first.

So in this example, the company cannot use any of its money to pay for its rent, or the wages of its current employees, before the company pays you.

The attorneys at our firm used the citation tool against a company that owed our client over $3 million.  That company could not pay its employees payroll without satisfying our judgment first.

Citation can also be used by commercial landlords and residential landlords in eviction cases.  Often times, when the landlord gets an eviction order, the court will give the tenant time to move out.   And most tenants know how to “play the game” to buy as much time as possible before they have to vacate the premises.

But a savvy landlord that obtains an eviction order and a money judgment against a tenant can perhaps force the clock to move more quickly by serving the tenant with a citation to discover assets.  Once the citation is served, it acts as a lien on the tenant’s assets and likely will force the tenant to cut a deal on the past due rent along with an agreement to voluntarily move out of the property long before he or she is required to.  The reason?  The tenant wants that lien released as soon as possible and the shrewd landlord will be glad to do so after the tenant vacates the property and pays some or all of the past due rent.

Our law firm used this strategy for a commercial landlord who obtained an eviction order and money judgment against a dry cleaning business tenant that was still operating its business.  As soon as we served the citation to discover assets on the dry cleaner, he vacated the premises many days before he was required to under the eviction order.

The lawyers at DeBlasio Law Group have the experience you need to face the most difficult challenges in court, including the DuPage County Courthouse located in Wheaton, Illinois, the federal and state courts in Chicago and other collar counties.  Strategically located in Oakbrook Terrace, Illinois, our office is minutes from all courts in the Chicagoland area and surrounding collar counties.  Call us for a consultation on any business related litigation matter at 630.560.1123.  www.DGLLC.net.

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According to the plaintiff in Gagnon v. Schickel, two parties agreed to buy real property together and share in its costs and profits.  But, the defendant never recorded a deed transferring half of the property even though the plaintiff had paid for half of the purchase price, utilities, taxes and improvements. 

The plaintiff attached a copy of a letter to the complaint, which plaintiff alleged was evidence of a conditional gift – the condition being that defendant must make plaintiff co-owner of the property.  But, the letter referred to the plaintiff’s payment of half the purchase price as “a bona fide gift with no obligation expected or implied[.]”  Therefore, the trial court refused to enforce the alleged “oral agreement” and the appellate court affirmed, leaving the Plaintiff high and dry and the defendant with everything.

According to the appellate court, the letter contradicted an essential term of the alleged oral contract, and where a complaint’s allegations and an exhibit conflict, the exhibit controls.  Thus, because of the way the plaintiff pled his case which conflicted with the exhibit attached to his complaint, the court held that the plaintiff had gifted his interest in the property to defendant.

Before you sign a contract or file a lawsuit on your own, you should contact an experienced attorney.  Or else you could be left with nothing, like the plaintiff in the Gagnon case.

The trial lawyers at DeBlasio Law group are experienced litigation attorneys committed to securing the rights of their clients.  To speak with one of our attorneys, callus at (630) 560-1123 or visit our website at www.DGLLC.net/contact.  We are here to help.

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The unit owner filed suit and the trial court ordered the Condo Association to turn over its records because the ordinance is a valid exercise of the City’s home rule powers.  The trial court also ordered the Condo Association to pay the plaintiff’s attorneys’ fees as the “prevailing party” under the ordinance dispute.

The Association appealed all the way to the Illinois Supreme Court, which also ruled in favor of the plaintiff.  The Supreme Court found that the conflict between the City ordinance and the state statute did not render the ordinance invalid.  The Supreme Court stated: “The legislature has not specifically denied the City’s exercise of home rule power or required its exercise of that power to be consistent with statutory provisions.  If the General Assembly wishes to deny or restrict a City’s home rule authority, it may enact a statute expressly providing for that action at its next session.”

Condo owners and Condo associations in Chicago should be familiar with both local ordinances and state statutes, and our attorneys can help.  To speak with one of our attorneys, call us at (630) 560-1123 or visit our website at www.DGLLC.net/contact.  We are here to help.   

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