MEGHAN GORMAN-DAHM, as Administrator of the Estate of Kathleen Gorman, Deceased, Plaintiff-Appellant,
BMO HARRIS BANK, N.A.; STEPHAN G. DADAY; and KLEIN, DADAY, ARETOS and O'DONOHGHUE, LLC, Defendants-Appellees.
from the Circuit Court of Kane County, No. 16-CH-293
Honorable David R. Akemann, Judge, Presiding.
JUSTICE BURKE delivered the judgment of the court, with
opinion. Justices McLaren and Schostok concurred in the
judgment and opinion.
1 Plaintiff, Meghan Gorman-Dahm, as administrator of the
estate of Kathleen Gorman, deceased, filed a complaint
against defendants, BMO Harris Bank, N.A. (BMO); Stephan G.
Daday; and Klein, Daday, Aretos and O'Donohghue, LLC,
consisting of five counts: count I, for slander of title;
counts II and IV, for punitive damages; count III, for abuse
of process; and count V, for partition. The trial court
granted defendants' motion to dismiss all counts, finding
that (1) the absolute litigation privilege barred counts I
and III, (2) there was no separate cause of action for
punitive damages (counts II and IV), and (3) the partition
claim in count V was at issue in another case, the underlying
foreclosure complaint pending in the same circuit. Plaintiff
contends that the trial court erred in dismissing counts I,
III, and V of her complaint. We affirm.
2 I. FACTS
3 A. Underlying Foreclosure Complaint
4 The underlying foreclosure complaint arose from a mortgage
loan made by Amcore Bank, N.A. (Amcore), BMO's
predecessor in interest, to Kathleen's husband, John P.
Gorman (deceased), on November 30, 2007, in the amount of
$750, 000, which was secured by property commonly known as
760 Church Street, Batavia, Illinois. The property had been
owned by John and Kathleen, as tenants in common, prior to
her death on July 3, 2006.
5 John defaulted on the loan and Amcore filed the foreclosure
complaint on January 20, 2010 (No. 10-CH-266), in Kane
County, naming both John and Kathleen as defendants.
6 The mortgage attached to the complaint showed that only
John had granted a security interest in the property.
7 A judgment of foreclosure and sale on the property was
entered on June 11, 2012. The judicial sale occurred on
August 14, 2014. Later, the parties to the foreclosure
action, BMO, John, and plaintiff (who was granted leave to
intervene on October 14, 2014), agreed that the notice of
sale indicated that the property to be sold was an
"undivided half interest" in the property. It was
also undisputed by the parties that an undivided half
interest was the only interest that could be sold at the
judicial sale. BMO was the successful bidder, in the amount
of $112, 399. The report of sale and distribution did not
indicate that only an undivided half interest was sold.
8 On April 2, 2015, the trial court vacated the judicial sale
of August 14, 2014. On April 28, 2015, the trial court
granted BMO's motion to amend the complaint to conform to
the proofs and its motion to amend the judgment of
foreclosure and sale nunc pro tunc to reflect that
the mortgaged real estate consisted of an undivided half
interest in the property. The trial court also expunged the
deed, which had not described the property as an undivided
half interest. Another judicial sale took place, and a deed
was issued to BMO for an undivided half interest in the
property. A motion to confirm the sale was granted on January
9 B. Plaintiff's Complaint
10 On August 11, 2016, while the foreclosure case was still
pending, plaintiff filed her complaint in the present
proceedings, alleging the following.
11 John executed the loan and the mortgage in his individual
capacity only. When he borrowed the money for the mortgage,
he did not know that he owned only an undivided half interest
in the property and that Kathleen's estate owned the
other half interest. John proceeded under the assumption that
he held title to the property in joint tenancy with Kathleen
and, therefore, had mortgaged the entire property. The
complaint in the foreclosure case sought the entire property,
not just an undivided half interest. And, at least as of the
date of being served with John's answer, defendants knew
that the loan was secured by only an undivided half interest
in the property. Despite that knowledge, defendants sought
foreclosure on the entire property.
12 Defendants proceeded to obtain a judgment of foreclosure
against the entire property. Upon entry of the judgment,
defendants caused to be published a notice of sale that
provided for the sale of only an undivided half interest in
the property. At the judicial sale, however, defendants
caused the sheriff to sell the entire property. BMO was the
successful bidder at the sale, having bid a price of $125,
000. After the sale, defendants filed a motion for approval
of the sale and distribution, reflecting the sale of the
entire property. The court approved the sale of the entire
property, and a sheriff's deed was issued and recorded by
13 During the pendency of the foreclosure proceeding, John
proposed a settlement of a negotiated amount toward the loan
in return for a release of the mortgage. He tried to fund the
proposal by obtaining a reverse mortgage against the
property, the proceeds of which were to be paid to BMO.
During this process, he discovered through a title search
that the property was held by him and Kathleen as tenants in
14 Plaintiff filed a petition to intervene in the foreclosure
proceeding and ultimately prevailed in having the foreclosure
court expunge the sheriff's deed. A second judicial sale
occurred. BMO was the successful bidder again, but this ...