Litigation Law Roundup Sharp  Thinking No. 197   Perspectives on Developments in the Law from Sharp-Hundley, P.C.   June 2021 Elements For Preliminary Injunction Fiercely Debated By John T. Hundley, Sharp Thinking Editor Litigation over the validity of Governor J.B. Pritzker’s eviction moratoria has given rise to a fierce debate in the Appellate Court’s Third District over…

Banking Law Roundup Sharp  Thinking No. 186  Perspectives On Developments In The Law From Sharp-Hundley, P.C.  August 2020 One-Year Statute Controls TILA Rescission Suit A debtor’s right to file suit to rescind a mortgage under § 1635 of the federal Truth-In-Lending Act (“TILA”) (15 U.S.C. § 1635) should be subject to a one-year statute of…

It’s a common practice in transactions involving big corporations and large sums of consideration.
To alleviate concerns about whether a party has authority to conduct the transaction, sophisticated
parties often ask for an opinion of counsel that the opposing entity has such authority and that all
required prerequisites have been met.

The bona fide error defense – a long standing but rarely successful part of the Fair Debt Collection Practices Act (15 U.S.C. §§ 1692 et seq.) – had new life breathed into it by the Seventh U.S. Circuit Court of Appeals last month.

Seemingly settled practice regarding the interplay of bankruptcy and foreclosure law was turned on its head late last month when the U.S. Court of Appeals for the Seventh Circuit held that a state court in a foreclosure case has jurisdiction and authority to enter a deficiency judgment against a debtor with a pending bankruptcy.

The wage deduction provisions of the Illinois Code of Civil Procedure leave a circuit court with no discretion to deny a request for a wage deduction order on grounds of extreme hardship, a panel of the Appellate Court in Chicago held recently.

Just as decades of apparently settled law governing post-judgment collection methods were turned on their heads by a decision of the Appellate Court in Chicago last fall (see Sharp Thinking No. 160 (Oct. 2018)), decades of apparently settled law governing eviction jurisdiction were upended by that same court just as fall turned to winter last month.

A circuit court has jurisdiction to enforce its discovery orders despite the case having been closed and the usual 30-day jurisdictional period having passed, a panel of the Appellate Court’s Second District ruled recently.

The use of course-of-dealing practices to define contractual commitments is statutorily established in sales-of-goods cases governed by the Uniform Commercial Code (810 ILCS 5/1-303(d)-(g)), but may a party rely on such evidence in a case involving services not covered by the UCC?

Decades of apparently settled law governing post-judgment collection methods apparently were turned on their heads by a decision of the Appellate Court in Chicago last month.

Officers of a bank holding company “had no right – much less a duty – to pursue a course of action that directly contradicted” their Board of Directors’ “clear instructions.”

In manager-managed limited liability companies, the manager “alone” is responsible for the “management and conduct of the company’s business,” and he, “exclusively,” decides any matter relating to the company’s business.

Neither Supreme Court Rule 183 nor the rules on e-filing permit a court to backdate a filing when the lapse of the 30-day period under Supreme Court Rule 303 and 735 ILCS 5/2-1203(a) means that the Court has lost jurisdiction.

It is not necessary for the court in a foreclosure action to appoint a special representative for a deceased mortgagor when that mortgagor transferred all interest in the property to another before his death, a panel in the Appellate Court in Chicago has concluded.

A process server who is told flatly by the defendant’s spouse that the defendant does not live at an address need not make repeated attempts to serve the defendant at that address, a panel of the Appellate Court in Chicago has ruled.

Applicants for the bar exam routinely are taught to distinguish between the creation of a security interest and its perfection, and that the resolution of competing claims will depend upon when perfection occurs.

Client waivers of concurrent conflicts of interest are ineffective if a lawyer cannot reasonably believe that he will be able to provide competent and diligent representation to each affected client, the Seventh U.S. Circuit Court of Appeals has held.

“A bargain to refrain from disclosing to a third person, to whom a duty of disclosure exists, information of value or interest to him is illegal.”

In newly-enacted legislation that went into effect January 1, 2018, additional protections were added for individuals who purchase their home on an installment sales contract.

First Mortgage Co. v. Dina, 2014 IL App (2d) 130567, holding that the issuance of a home mortgage by an entity that is not registered under the Residential Mortgage License Act (205 ILCS 635) voids the mortgage (see generally Sharp Thinking No. 116 (June 2014)), has been overturned.

The absence of significant common ownership between the alleged predecessor and successor dooms a creditor’s attempt to hold the latter responsible for the debts of the former under the “mere continuation doctrine,” a panel of the Appellate Court in Chicago has held.

Financial institutions subject to citations to discover assets had best not enter into loan agreements
with entities affiliated with the judgment debtor until the citation proceedings have been resolved

The Appellate Court in Chicago last month issued an opinion that sets the stage for widespread
condoning of supplementary proceeding respondents’ ignoring of supplementary proceedings papers.

Believing that “frivolous motions or appeals are more likely to be found in the mortgageforeclosure context” than in other areas of the law, a panel in the Appellate Court’s Third District has
issued a call that “it is incumbent upon the courts, both trial and appellate, to impose sanctions for . . .
frivolous conduct designed to help defendants remain in their home, with little regard for the law.”

No circumstances ever justify an attorney filing a bankruptcy petition, including its related schedules and statement of financial affairs, “without first obtaining a debtor’s actual signature on the documents,” a bankruptcy judge from the Central District of Illinois recently held

Mortgagees and their counsel had better pay close attention to the acceleration terms of their
mortgages before foreclosing as a result of a recent decision of the Appellate Court in Chicago.

The three-year statute of limitations of Uniform Commercial Code § 4-111 (810 ILCS 5/4-111) applies
to a lawsuit pleaded as a common-law breach-of-contract case if the claim is related to banking transactionsinvolving negotiable instruments, a panel of the Appellate Court in Chicago has reiterated.

The Appellate Court recently confronted a novel issue over whether a successor agent under apower of attorney owes a fiduciary duty to the principal before he becomes the attorney-in-fact.

Nothing prevents an amended complaint from naming as respondents in discovery persons who had been named as defendants in the original complaint, according to a 2-1 decision of a panel of the Illinois Appellate Court in Chicago.

Rejecting a contrary Federal Reserve Board regulation and cases thereunder, the Eighth Circuit U.S.
Court of Appeals has held that it does not violate the Equal Credit Opportunity Act (15 U.S.C. § 1691 et seq.)
(ECOA) for a lender to require wives to guarantee debts of their husbands’ businesses.

The common intent to benefit friendly creditors by not listing them in one’s bankruptcy papers is sufficient intent to support denial of a bankruptcy discharge, the Seventh Circuit U.S. Court of Appeals has ruled.

It’s a curious practice: Foreclosure plaintiffs file a complaint seeking a personal deficiency judgment against the mortgagor, but provide in the order confirming sale that the deficiency judgment is “in rem”. In rem, of course, means that the judgment is against the thing – the property which, by the terms of the order of confirmation, is transferred to the purchaser at the foreclosure sale (or its assignee).

Contractual ambiguity may allow consideration of extrinsic evidence to clarify those portions of “integrated” contracts that are unclear, but it does not open the flood gates for consideration of parol evidence on other points or to establish entirely new terms.

Three attempts to serve process at approximately the same hour over a four-day period do not “demonstrate a well-directed effort to ascertain the whereabouts of defendant by inquiry ‘as full as circumstances permit’” and hence fail the law’s preconditions for resort to publication service, a panel of the Appellate Court in Chicago has ruled.

A “void after 90 days” notation on a check does not constitute a stop-payment order under Uniform Commercial Code (UCC) § 4-403(a) (810 ILCS 5/4-403(a)) and “is not a reasonable means by which to direct a bank to stop payment on a check”, the Appellate Court in Chicago has ruled.

A land trust which is not an obligor on a loan but which gave a mortgage to secure the loan cannot seek rescission under the Truth In Lending Act, 15 U.S.C. § 1601 et seq. (TILA), a panel in the Appellate Court’s First District has held.

A plaintiff claiming breach of a confidentiality agreement cannot merely rely on the existence of such an agreement and its breach, the U.S. Court of Appeals for the Seventh Circuit has held.

A plaintiff seeking to foreclose on a single-family owner-occupied residence should specifically allege
that the 30-day grace-period notice of 735 ILCS 5/15-1502.5 was sent, and had better attach proof of that
sending to the complaint.

A sales representative contract which was terminable only by the mutual agreement of the parties was a contract of indefinite duration and hence terminable at will, a panel of the Appellate Court in Chicago has ruled.

Illinois home buyers do not waive their rights under the Residential Real Property Disclosure Act (765 ILCS 77) by closing the transaction despite omissions on sellers’ disclosure form, a panel in the Appellate Court’s Fourth District has held.

When requests to admit are served by mail, the four-day effectiveness provision of Illinois Supreme Court Rule 12(c) must be taken into account in determining when responses must be served to avoid binding admission of those requests, a panel in the Appellate Court’s First District has held.

The Employee Classification Act (820 ILCS 185) has been amended to address the defects found
in Bartlow v. Shannon, 399 Ill.App.3d 560 (5th Dist. 2010), and, as amended, has been sustained by
the Illinois Supreme Court. Bartlow v. Costigan, 2014 IL 115152.

Neither share ownership nor officer status is required for Illinois courts to apply the doctrine of piercing
the corporate veil, a panel in the Appellate Court’s First District held this month.

Predatory lending may give rise to a defense preventing foreclosure on a mortgage loan, the Supreme
Court of Arkansas held recently.

A bankruptcy court may not order that a debtor’s exempt assets be used to pay administrative expenses incurred as a result of the debtor’s misconduct, the U.S. Supreme Court has held.

An Appellate Court panel in Chicago has issued a valuable primer on when liquidated damages clauses will be deemed permissible and impermissible under Illinois law.

A trial court need not conduct an in camera review of the subject communications in order to hold that they are subject to the crime-fraud exception to the attorney-client privilege, the Illinois Supreme Court has reiterated.

A party must read the actual notice of lis pendens and may not rely upon an erroneous summary
thereof provided by a recorder of deeds, a panel in the Appellate Court’s First District has held.

A mortgagor who is properly served, who receives notices of the default, the judgment of foreclosure and the sale, who participates in the proceedings, but who waits 10 months after the default judgment before seeking to vacate same and to raise pleading defects, may not have the judgment and sale vacated even under the liberal rules of 735 ILCS 5/2-1301(e), the Illlinois Supreme Court held recently.

A complaint which alleges wrongs against multiple defendants collectively, without details about who did what, fails the requirement of plausibility which Supreme Court cases have imported into Federal Rules of Civil Procedure 12(b)(6), the U.S. Court of Appeals for the Seventh Circuit has held.

A respondent that has frozen an account in response to a citation to discover assets is entitled to unfreeze that account upon receipt of an order “the most reasonable reading of which” unfreezes the account, the U.S. Court of Appeals for the Seventh Circuit has held.

Just because an organizational employer is in financial trouble does not absolve its managers of potential personal liability under the Illinois Wage Payment and Collection Act, 820 ILCS 115 (“IWPCA”), if they “have discretion to pay plaintiff but cho[o]se to allocate resources elsewhere,” according to a recent decision of the Appellate Court’s Second District.

Look for increased attempts to discover those intake forms used by bankruptcy practitioners – and also fee information for all lawyers – as a result of a recent decision by the Seventh Circuit U.S. Court of Appeals.

A mortgagee’s violation of 735 ILCS 5/15-1508(d-5) and of the Housing Affordable Mortgage Program
(“HAMP”) rules may require denial of confirmation of a foreclosure sale held in violation of those rules, a
panel in the Appellate Court’s Second District has held.

A “mortgage rescue” victim’s argument that an apparent warranty deed should be construed as an equitable mortgage should have gone forward to a full trial, a panel of the Appellate Court’s First District has held.

Mere withdrawal when a client persists in utilizing false material evidence, without disclosure thereof to the tribunal in a civil matter, ordinarily is improper even if the lawyer had no role in creating or presenting the false evidence, an Illinois State Bar Association committee has opined.

Because judicial estoppel is concerned with protecting the integrity of the courts from the appearance and reality of manipulative litigation conduct, courts considering that doctrine have the “freedom to consider the equities of an entire case” and can even impose the estoppel where the party estopped and the party which committed the underlying conduct are not perfectly identical, the U.S. Court of Appeals for the Seventh Circuit has held

Service of process upon a person known to have been adjudicated incompetent to manage his affairs violates due process, a panel in the Appellate Court’s First District has held.

The term “defalcation” in § 523(a)(4) of the Bankruptcy Code includes a culpable state of mindrequirement involving knowledge of, or gross recklessness in respect to, the improper nature of the
fiduciary behavior, the U.S. Supreme Court held recently.

A business owner does not have a duty to make voluntary capital contributions to his financially-troubled business in order to avoid personal liability for its wage payment obligations, a bankruptcy judge in Northern Illinois has held.

Illinois residential real estate that has been abandoned now is subject to “fast track” judicial foreclosure procedures aimed at minimizing the blight effects which abandoned houses have been having during the usual foreclosure process.

Those cross-collateralization clauses common in commercial mortgages are enforceable and put subsequent lenders on inquiry notice of other debts brought within the scope of the mortgage by such clauses, the Seventh Circuit U.S. Court of Appeals ruled last week.

Insufficient efforts to locate and serve the defendant before seeking and effecting publication service may be attacked by that defendant even after judgment by default has been entered, a panel in the Appellate Court’s Third District has ruled.

A buyer of property by quitclaim deed generally may not claim breach of contract when it learns that the seller did not have fee simple title, a panel in the Appellate Court’s Third District has held.

Illinois’ statute on citations to discover assets (see Sharp Thinking No. 1 (Nov. 2007), No. 68 (July
2012)) has been significantly amended.

The General Assembly has increased the sanctions for custodial parents who violate visitation orders.
Effective August 21, 2012, the legislature added to 625 ILCS 5/7-701 (a statute previously reserved
for parents who failed to pay child support) language making the violation of a visitation order grounds fordriver’s license suspension. In P.A. 97-1047, it also toughened other enforcement mechanisms for
visitation abuse as set forth in 750 ILCS 5/607.1.

Another panel of the Illinois Appellate Court has come down on the side of putting teeth into Illinois Supreme Court Rule 216 on requests to admit (see Sharp Thinking No. 39, Nov. 2010).

Forbearance agreements, including waivers of defenses and other concessions which the lender
sought in exchange for forbearing, are legally enforceable, even against consumers, a panel of the
Illinois Appellate Court has ruled.

The Federal Deposit Insurance Corp. (FDIC) has broad powers to banish bank officials from the industry, a recent decision by the United States Court of Appeals in Chicago demonstrates.

A court may hold that a new corporation is liable for the debts of a predecessor corporation where the
common shareholders are sufficient to exercise control of the new corporation, an Appellate Court panel in Chicago has ruled, rejecting an argument that the ownership of the two corporations had to be identical.

A credit card holder who uses the card after receipt of original or amended standard terms thereby agrees thereto for purposes of that transaction, an Appellate Court panel ruled recently.

Defendants in mortgage foreclosure cases must raise challenges to the plaintiff’s standing early in the
litigation or those challenges are waived, a panel in the Illinois Appellate Court has reiterated. Rejecting challenges to Mortgage Elec. Reg. Systems, Inc. v. Barnes, 406 Ill.App.3d 1 (2010),

Violations of the restraint provisions of citations to discover assets justified a finding of contempt of
court and the appointment of a receiver to investigate the defendant-judgment debtors’ financial affairs, a panel of the Illinois Appellate Court has held.

On its face, the Illinois Collection Agency Act (225 ILCS 425) threatens violators with significant
criminal, administrative and other sanctions for violations of the myriad provisions summarized in Sharp
Thinking Nos. 65 and 66 (June 2012). Less obvious, but equally real, is the threat of civil lawsuits by the
debtors subject to collection activity.

In addition to requiring registration with the Department of Financial & Professional Regulation (see harp Thinking No. 65 (June 2012)), the Illinois Collection Agency Act (225 ILCS 425) contains a plethora
of provisions regulating collection agencies’ conduct. Some of these regulate the agency’s relations with its principal/creditor, but others regulate how agencies may go about attempting to collect the debts assigned to them. We will focus on the latter as they are more likely to result in claims of concern to Sharp Thinking readers.

A judgment obtained by a collection agency that sues in its own name without registering under the Collection Agency Act (225 ILCS 425) is void, an Illinois Appellate Court panel has ruled. However, when registered and holding a written assignment separate from the contract listing the debt with the agency, a
collection agency may sue to collect in its own name, even though it is only an assignee for collection,
another panel has ruled.

As noted in the last two issues of Sharp Thinking, the Fair Debt Collection Practices Act (15 U.S.C.
§§ 1692 et seq.) (“FDCPA”) contains numerous provisions which threaten liability for debt collectors in
the collection of consumer debt. In this issue we address remedies for violations of that Act and
affirmative defenses which can allow collectors to prevail despite a violation.

Individuals who are mistakenly dunned by debt collectors have standing to seek relief under the
Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 et seq. (“FDCPA”), a federal appeals court ruled recently. However, debts not arising from consensual consumer transactions for goods or services are
not “debts” covered by that act, another appeals court has ruled.

The Obama Administration’s Home Affordable Mortgage Program (“HAMP”) does not contain a
federal private right to sue for violation of its terms, but it also does not preempt otherwise viable state law claims which incorporate terms and standards of the federal program, a federal appeals court in
Chicago ruled last month.

The Illinois Mortgage Foreclosure Law, 735 ILCS 5/15-1101 et seq . (“IMFL”), has been amended to
require mortgagees to say aye or nay to requests that they approve “short sales” of residential real
estate that is in foreclosure.

The murky waters surrounding alleged “promissory fraud” and “letters of intent” received
noteworthy explications from the U.S. Court of Appeals for the Seventh Circuit recently.

The judicial estoppel doctrine, which has emerged as one of the most potent weapons against bankruptcy fraud in federal courts, finds equally fertile ground in Illinois’ state courts, a recent Appellate Court decision shows

The effect of broad authority-granting clauses in powers of attorney (“POAs”) for property has been called into question by a recent decision of the Illinois Appellate Court.

Lawyers who accept checks and then promptly wire-transfer part of the funds to clients or others out of
the country are exposed to substantial losses, a series of recent federal court cases in Northern Illinois
demonstrates.

The federal “Defense of Marriage” Act, Pub. L. 104-199, 110 Stat. 2419, codified in pertinent part at 1
U.S.C. § 7 (“DOMA”), has received an unpleasant welcome from an unexpected quarter – the nation’s
bankruptcy courts.

Persons who share privileged information with others as part of a business transaction may find that they have waived the privilege as to all communications on the subject matter of the shared information, a
panel of the Illinois Appellate Court ruled late last month.

In the 30 years since the Illinois Supreme Court first recognized an action for retaliatory discharge
(Palmateer v. Int’l Harvester Co., 85 Ill.2d 124 (1981), that tort has had a checkered past.

An assignee’s claim for compensation under an Assignment for Benefit of Creditors (“ABC”) trumps even a
properly-perfected security interest under the Uniform Commercial Code (810 ILCS
5), a panel of the Illinois Appellate Court ruled recently.