Articles Posted in Real Estate & Property Law

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The Real Estate Settlement Procedures Act, 12 U.S.C. 2605 (RESPA), requires that a loan servicer, no later than 30 days after receiving a borrower's “qualified written request” for information, take one of three specific actions and provides a private right of action for actual damages resulting from violations. Wis. Stat. 224.77 prohibits mortgage brokers from violating "any federal or state statute.” Terrence purchased his house in 2006 with a Deutsche Bank mortgage, serviced by Wells Fargo. His wife, Dixie, used an inheritance to help buy the house but was never named on the title, mortgage, or promissory note. Despite a forbearance plan and two loan modifications, Terrance defaulted. Deutsche Bank filed a second foreclosure action. In 2012, the Wisconsin court entered a foreclosure judgment. Terrance filed for Chapter 13 bankruptcy, resulting in an automatic stay. In 2015, the parties entered into a third modification. Terrance again failed to make payments and converted to a Chapter 7 bankruptcy, triggering another stay. In 2016 the bankruptcy court entered a discharge. The sheriff’s sale was rescheduled. In August 2016, Terrance sent Wells Fargo a letter, asking 22 wide-ranging questions about his account. Wells Fargo confirmed receipt immediately, indicating that it would respond on September 30. Two days before the RESPA deadline for response, the owners moved to reopen the foreclosure case and obtained another stay. They also filed a federal suit under RESPA and state law. The Seventh Circuit affirmed dismissal. Dixie lacked standing. Terrance failed to show that he suffered out-of-pocket expenses as a result of any alleged RESPA violation. View "Moore v. Wells Fargo Bank, N.A." on Justia Law

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The Seventh Circuit affirmed the district court's grant of summary judgment for Shellpoint in an action alleging that Shellpoint discriminated against plaintiffs based on race when it prohibited them from assuming the loan of a home that they had purchased. The court held that no reasonable jury could find that Shellpoint discriminated against plaintiffs based on their race where their only evidence was vague and speculative. Furthermore, the requirement that plaintiffs satisfy the outstanding loan payment was consistent with the loan agreement, which conditions assumption on Shellpoint's determination that its security would not be impaired. The court also held that plaintiffs did not point to evidence countering the Shellpoint representative's statement that they never produced a complete application. View "Sims v. New Penn Financial LLC" on Justia Law

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In 2006, plaintiffs purchased a 400-acre Barrington horse farm with Amcore financing. In 2009, Amcore filed for foreclosure in Illinois state court. Amcore failed and the FDIC became its receiver. BMO bought Amcore’s loan assets at a discount from the FDIC and took over the foreclosure action. To cut its losses on the loan, BMO assigned the note to the Forest Preserve for $14 million. The Forest Preserve made the (winning) credit bid of about $14.5 million at the foreclosure sale. The foreclosure court entered a deficiency judgment of $6 million. The Illinois Appellate Court later reversed the foreclosure judgments. There is apparently no current judgment in that action. The original owners have filed five lawsuits, in addition to raising affirmative defenses and counterclaims in the foreclosure action. The Seventh Circuit affirmed the dismissal of their suit that alleged unconstitutional takings, fraud, and derivative claims for conspiracy and aiding and abetting. The court rejected arguments that the Forest Preserve violated the takings clause by passing an ordinance converting the estate into a forest preserve; by buying the mortgage and taking over the foreclosure action; and by physically entering the estate and installing Forest Preserve signs at the estate entrances. Derivative conspiracy and aiding-and-abetting claims fall with the three theories. View "Squires-Cannon v. Forest Preserve District of Cook County" on Justia Law

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In 2006 Conway contracted to sell land in Broadview to Donahue, who assigned the contract to Chicago Joe’s Tea Room, LLC. Chicago Joe’s sole manager applied for the required special-use permit. Broadview denied the application in 2007. The land sale contract never closed and the planned strip club never opened. The LLC and Conway filed suit in 2007 alleging that Broadview violated the First Amendment. Broadview amended its ordinances multiple times during the lawsuit. One amendment led District Judge Gottschall, to conclude that Broadview’s amendment to its adult-use setback ordinance was “aimed solely at Chicago Joe’s.” After the case was transferred to Judge Lee, the parties litigated renewed summary judgment motions. Judge Lee granted Broadview summary judgment on Chicago Joe’s declaratory judgment and injunction claims, but denied summary judgment on the damages claim. The Seventh Circuit concluded that the claim for injunctive relief that established interlocutory appellate jurisdiction is actually moot, and affirmed its dismissal. At every stage of the process, Chicago Joe’s has proposed a use of property prohibited by then-current local law, so it has no vested rights. Since 2007, Chicago Joe’s has proposed to use the property in a way prohibited by Illinois statute, without challenging that statute. View "Chicago Joe's Tea Room, LLC v. Village of Broadview" on Justia Law

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In 1995, Orchard purchased the Warmke Parcel, 13 acres of wetlands, for residential development. Orchard requested a determination from the Army Corps of Engineers that the wetlands were not jurisdictional “waters of the United States” under the Clean Water Act, 33 U.S.C. 1251(a). Before 2015, the Corps defined waters of the United States to include waters “subject to the ebb and flow of the tide,” “rivers” that could be used for interstate recreation or commerce, “tributaries” of such waters, and “wetlands adjacent to” other waters of the United States, including tributaries. The Warmke wetlands are surrounded by residential development. The closest navigable water, Little Calumet River, is 11 miles away. In between the Warmke wetlands and Little Calumet River are man‐made ditches, sewer pipes, and Midlothian Creek—a tributary of the Little Calumet River. The Warmke wetlands drain, via sewer pipes, to Midlothian Creek. While the Warmke issue was pending, the Supreme Court decided that a wetland’s adjacency to a tributary of a navigable‐in‐fact water is alone insufficient to make the wetland a water of the United States, “the Corps’ jurisdiction over [such] wetlands depends upon the existence of a significant nexus between the wetlands in question and navigable waters in the traditional sense.” The Seventh Circuit reversed the Corps’ claim of jurisdiction, finding that the Corps has not provided substantial evidence of a significant nexus to navigable‐in‐fact waters. View "Orchard Hill Building Co. v. United States Army Corps of Engineers" on Justia Law

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Geraci owns and lives in a unit at Union Square. After an incident in a Union Square’s elevator, involving another individual and several dogs, Geraci sought psychological treatment and was diagnosed with post‐traumatic stress disorder (PTSD). Geraci’s accommodation request was denied by Union Square. Geraci sued, alleging failure to accommodate her handicap and retaliation by the association, citing the Fair Housing Act (FHA, 42 U.S.C. 3617), because Union Square’s Board published litigation updates and held an open forum to update owners about the status of the lawsuit. Over Geraci’s objection, Union Square presented testimony of the psychiatrist who had previously conducted a court-ordered FRCP 35 examination; the testimony contradicted the diagnosis of Geraci’s treating psychologist, diagnosing her with three separate mental conditions, none of which were PTSD. The jury returned a verdict in favor of Union Square. The Seventh Circuit affirmed. Geraci fails to point to any conduct that a person of normal fortitude would view as coercive, intimidating, threatening, or interfering with the exercise of her protected right under the FHA and the court did not abuse its discretion in allowing testimony by the psychiatrist. View "Geraci v. Union Square Condominium Association" on Justia Law

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Landlord sued in 2005, contending that Joliet had interfered with the way in which it set rents apartments under the mark-to-market program for rates at subsidized apartments and violated the Fair Housing Act (FHA), 42 U.S.C. 3601–31. While an appeal was pending, Joliet filed an eminent-domain suit, proposing to add the land to a public park. The Seventh Circuit held that a recipient of federal financing is not immune from the power of eminent domain. The condemnation trial ran for 18 calendar months; compensation was set at $15 million. The Seventh Circuit affirmed, rejecting the FHA claim. The district judge dismissed Landlord's original suit. The Seventh Circuit affirmed, rejecting Landlord’s argument that the judge should have put the condemnation action on hold, reserving its FHA suit for a jury trial. The Seventh Circuit had directed it to resolve the condemnation suit first because Joliet professed concern about crime and deterioration at the property. Landlord was free to reserve the FHA claim for this suit, where it would have been entitled to a jury trial. Its FHA claim was resolved in a bench trial only because Landlord insisted on presenting it earlier. Landlord wanted the FHA to be treated as a defense to condemnation, and the district court acquiesced. That choice is responsible for the fact that a judge rather than a jury resolved the FHA claim. View "New West, L.P. v. City of Joliet" on Justia Law

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HH intended to open an Indianapolis retail establishment, “Hustler Hollywood,” entered a 10-year lease, and applied for sign and building permits. HH’s proposed store was located in a zoning district that prohibited “adult entertainment businesses.” The Department of Business and Neighborhood Services determined that HH was an adult entertainment business; the Board of Zoning Appeals affirmed. HH sought a declaratory judgment that the ordinance violated its First and Fourteenth Amendment rights. The district court denied HH’s motion for a preliminary injunction. On interlocutory appeal with respect to its as-applied First Amendment claim, the Seventh Circuit affirmed. HH’s speech has not been silenced or suppressed; HH has only been told that it cannot operate in a particular commercial district. The ordinance is “content-neutral” and the city’s interest in reducing the secondary effects of adult businesses is a sufficient or substantial interest. Application of the ordinance resulted only in an incidental restriction on HH’s speech in a particular location. HH presented no evidence that officials displayed any bias or censorial intent in their determinations; the city was under no constitutional obligation to inspect the property or allow HH to open conditionally before making its determination. View "HH-Indianapolis, LLC v. Consolidated City of Indianapolis" on Justia Law

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Linderman bought an Indianapolis house in 2004 and lived there with her ex-husband, their children, and her parents. In 2013, Linderman left and stopped paying the mortgage loan. The others left in 2014. The unoccupied structure was vandalized. U.S. Bank, which owns the note and mortgage, started foreclosure proceedings. The vandalism produced insurance money that was sent to the Bank. The city notified Linderman of code violations. Linderman hired a contractor. In 2015 the Bank disbursed $10,000 for repairs. The contractor abandoned the job. The house was vandalized twice more; a storm damaged the roof. Linderman has not hired a replacement contractor or asked the Bank for additional funds but inquired about the status of the loan and the insurance money. The Bank sent a response. Asserting that she had not received that response, Linderman sued under the Real Estate Settlement Procedures Act, 12 U.S.C. 2605(e)(1)(B). The Seventh Circuit affirmed the rejection of her claims. None of Linderman’s problems with her marriage and mental health can be traced to the Bank. Linderman does not explain how earlier access to the Bank’s record of the account could have helped her; some of her asserted injuries are outside the scope of the Act. The contract between Linderman and the Bank, not federal law, determines how insurance proceeds must be handled. Contract law also governs the arrangement between Linderman and the contractor. View "Floyd v. U.S. Bank National Association" on Justia Law

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Linderman bought an Indianapolis house in 2004 and lived there with her ex-husband, their children, and her parents. In 2013, Linderman left and stopped paying the mortgage loan. The others left in 2014. The unoccupied structure was vandalized. U.S. Bank, which owns the note and mortgage, started foreclosure proceedings. The vandalism produced insurance money that was sent to the Bank. The city notified Linderman of code violations. Linderman hired a contractor. In 2015 the Bank disbursed $10,000 for repairs. The contractor abandoned the job. The house was vandalized twice more; a storm damaged the roof. Linderman has not hired a replacement contractor or asked the Bank for additional funds but inquired about the status of the loan and the insurance money. The Bank sent a response. Asserting that she had not received that response, Linderman sued under the Real Estate Settlement Procedures Act, 12 U.S.C. 2605(e)(1)(B). The Seventh Circuit affirmed the rejection of her claims. None of Linderman’s problems with her marriage and mental health can be traced to the Bank. Linderman does not explain how earlier access to the Bank’s record of the account could have helped her; some of her asserted injuries are outside the scope of the Act. The contract between Linderman and the Bank, not federal law, determines how insurance proceeds must be handled. Contract law also governs the arrangement between Linderman and the contractor. View "Floyd v. U.S. Bank National Association" on Justia Law