Appeal from the Circuit Court of Kane County. No. 06-CH-943 Honorable Leonard J. Wojtecki, Judge, Presiding.
The opinion of the court was delivered by: Presiding Justice Burke
PRESIDING JUSTICE BURKE delivered the judgment of the court, with opinion. Justices Jorgensen and Hudson concurred in the judgment and opinion.
¶ 1 In two separate cases proceeding concurrently against the same property, the circuit court of Kane County entered orders of foreclosure of first liens in favor of two different mortgagees. In the action at issue here, the trial court granted plaintiff, The Bank of New York, as Trustee for the Holders of EQCC Asset-Backed Certificates, Series 2001-2 (BONY), an order of foreclosure (BONY foreclosure action). In a separate action, the trial court granted intervenor, JP Morgan Chase Bank, National Association, as the Purchaser of the Loans and Other Assets of Washington Mutual Bank, f/k/a Washington Mutual Bank, FA, from the Federal Deposit Insurance Corporation (JPM), an order of foreclosure (JPM foreclosure action). When JPM learned of the conflicting foreclosure order, it intervened in the BONY foreclosure action, claiming that its mortgage had priority. The trial court found that BONY's mortgage was superior. JPM claims on appeal that its mortgage has priority due to proper reliance on a forged release of BONY's mortgage. We disagree and hold that the recorded pending BONY foreclosure action gave JPM notice, actual or constructive, that BONY's mortgage was superior. We affirm.
¶ 3 Although this case has a fairly convoluted procedural history, we summarize the facts as simply as possible.*fn1 In 1999, GN Mortgage Corporation (GN) extended to defendant Vincent J. Langman a loan secured by a mortgage on the residential property located at 2311 Collins Court, Batavia, Illinois (the property). On August 16, 2000, a forged release of the GN mortgage was recorded; however, Langman continued to pay the loan to GN for over two years.
¶ 4 Meanwhile, on December 4, 2001, Langman obtained a mortgage on the property from Matrix Financial Services, Inc. (Matrix). Langman then defaulted on the Matrix loan. On December 9, 2002, Deutsche Bank, as assignee, commenced a foreclosure of the Matrix mortgage, but it did not name GN or BONY (which had been assigned the GN mortgage) as a party to the foreclosure action. A judgment of foreclosure was entered against Langman, and Deutsche Bank sold the property to defendants Abdul Rehman Hamidani and Joyce Hamidani on January 31, 2005. The Hamidanis then mortgaged the property to defendant TCF National Bank (TCF).
¶ 5 During the intervening time, Langman, who had continued to pay the GN debt in spite of the recorded forged release, defaulted on the GN mortgage in February 2003. In late March 2006, BONY learned through its agent, Select Portfolio Servicing, of the forged release of the GN mortgage. On June 29, 2006, BONY obtained an affidavit from GN confirming that the release was forged. BONY also learned that Langman had continued to pay monthly installments after the GN release was recorded, until January 1, 2003. BONY filed its complaint for foreclosure on July 10, 2006, and recorded a notice of foreclosure lis pendens on July 13, 2006.
¶ 6 Shortly thereafter, on August 1, 2006, the Hamidanis entered into a mortgage and a revolving line of credit with Washington Mutual Bank (WaMu). The Hamidanis defaulted and WaMu filed a foreclosure action on March 10, 2008. According to JPM, it acquired the Hamidani's mortgage on September 25, 2008, after WaMu was placed in receivership. The trial court entered an order of foreclosure and sale in favor of JPM on June 6, 2008.
¶ 7 Extensive litigation ensued in the BONY foreclosure proceeding to determine the state of title to the property. On July 24, 2008, the trial court granted summary judgment in favor of BONY, holding, in part, that the purported release of GN's mortgage was a forgery and that WaMu was not a necessary party to the foreclosure proceeding due to the recording of BONY's notice of foreclosure lis pendens. On December 19, 2008, the court entered a judgment of foreclosure and sale with the redemption period to expire on March 19, 2009. Neither the BONY foreclosure action nor the notice of foreclosure contained any mention of the forged release. At no time did GN or BONY record an affidavit of correction from GN or any other document confirming that the release of its mortgage had been forged.
¶ 8 When JPM heard of the BONY foreclosure action, it filed a petition to intervene on March 12, 2009, to obtain a ruling as to which mortgage had priority on the property. JPM argued that it should be allowed to intervene because its mortgage on the property created an enforceable interest in the property and a judgment of foreclosure and sale had been entered in its favor six months prior to the judgment of foreclosure and sale in the BONY foreclosure action. The trial court permitted JPM to intervene. JPM then filed a motion to determine mortgage priority, requesting an order to declare its mortgage, dated August 1, 2006, as prior and superior to BONY's mortgage. The trial court denied the motion and found that there was no just reason to delay enforcement or appeal.
¶ 9 We dismissed on the ground that there had been no final order adjudicating priority between the BONY and the JPM mortgages. Bank of New York v. Langman, 2011 IL App (2d) 101118-U.
¶ 10 Subsequently, the trial court found that the BONY mortgage had priority over the JPM mortgage. Essentially, the trial court concluded that JPM should have performed a reasonable inquiry, which would have revealed BONY's adverse interest. JPM timely filed a notice of appeal.
¶ 11 On appeal, JPM contends that (1) the Hamidanis, as bona fide purchasers for value, properly relied on the forged release and took title free of the GN mortgage when they mortgaged the property to WaMu; (2) alternatively, BONY is equitably estopped from asserting its lien interest, because it failed to record an affidavit of ...