Underlying foreclosure case not germane to eviction suit

In a case handed down by the Illinois Appellate Court for the Third District, the court determined that a dispute about the validity of a mortgage foreclosure judgment is not germane in an eviction action brought by the foreclosing party against an occupant of the foreclosed real estate.

In the case, Wells Fargo Bank, N.A. v. Cecil W. Watson, Wells Fargo sought to evict an occupant in the real estate acquired by the bank after a foreclosure.  Wells Fargo was granted summary judgment in the eviction procedure and the defendant appealed claiming that issues of material fact existed as to whether or not Wells Fargo had standing in to file the foreclosure case.

Eviction cases are special in that, because the law wants them to advance “quickly” (although not as fast as any landlord would like!), the parties to an eviction can only raise matters “germane” to the plaintiff’s right of possession.  The appeals court ruled that the dispute over the foreclosure case was not germane to the issue of possession and instead constituted an attack on the foreclosure judgment and affirmed the eviction order of the lower court.

While the case is not groundbreaking, it does stand for the proposition that defendants in eviction cases arising out of a foreclosure cannot use defects in the foreclosure case as a defense to an eviction.

About Richard Magnone

Co-founding member of Reda | Ciprian | Magnone, LLC, attorney at law and Illinois licensed lawyer since 1996.
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