JP Morgan vs. Bell
2020 IL App (3d) 190128
Wednesday, July 1, 2020
A review of the recent Will County, Illinois case JP Morgan vs. Bell 2020 IL App (3d) 190128 (2020) raises two issues:
- Whether a deceased mortgagor is a necessary party in a foreclosure proceeding.
- Whether a recorded release and satisfaction of mortgage agreement and later a recorded certificate of error as to a release and satisfaction by same entity creates a genuine issue of material facts.
The Illinois Code provides that the necessary parties to a foreclosure proceeding includes (1) the mortgagor and (II) other persons (but not guarantors) who owe payments of indebtedness or the performance of other obligations secured by the mortgage and against who personal liability is asserted. 735 ILCS 5/15-1501 (a) (West 2016). Under section 15-1501(h)(1), the court is not required to appoint a special representative for a deceased mortgagor for the purpose of defending the action, if there is a living person, persons, or entity that holds a 100% interest in the property, by virtue of being the deceased mortgagor’s surviving joint tenant or surviving tenant by the entirety. The code also provides that in no event may a deficiency judgment be sought or entered in the foreclosure case against a deceased mortgagor. The court resolved the second issue finding that the two recorded documents created a material issue of fact.