adverse claim in Illinois

2011The trial court granted Cotsirilos' motion for an adverse claim, finding that although the advance payment retainer agreement "failed to include certain language," it was "in substantial compliance with the Dowling test." Hannafan filed this timely appeal. ¶ 7 ANALYSIS ¶ 8 Hannafan contends that the trial court erred in granting Cotsirilos' adverse claim because the advance payment retainer agreement between Cotsirilos and Bloom does not fully conform to the requirements set forth in Dowling v. Chicago Options Associates, Inc., 226 Ill.2d 277 , 314 Ill.Dec. 725 , 875 N.E.2d 1012 (2007).

2011The trial court granted Cotsirilos' motion for an adverse claim, finding that although the advance payment retainer agreement "failed to include certain language," it was "in substantial compliance with the Dowling test." Hannafan filed this timely appeal. ¶ 7 ANALYSIS ¶ 8 Hannafan contends that the trial court erred in granting Cotsirilos' adverse claim because the advance payment retainer agreement between Cotsirilos and Bloom does not fully conform to the requirements set forth in Dowling v. Chicago Options Associates, Inc., 226 Ill.2d 277 , 314 Ill.Dec. 725 , 875 N.E.2d 1012 (2007).

2007App. 3d at 1072 . "[A] quiet title action does not lie where the defendant has not made an adverse claim to an interest in the plaintiff's property." Rieger, 329 Ill.

2007App. 3d at 1072 . “[A] quiet title action does not lie where the defendant has not made an adverse claim to an interest in the plaintiffs property.” Rieger, 329 Ill.

2003Coupon Redemption, Inc. v. Ramadan, 164 Ill.

2003Coupon Redemption, Inc. v. Ramadan , 164 Ill.

2000The Brookens court stated, “The answer lies in the oil-and-gas lease and supplemental agreement.” (Emphasis added.) Brookens, 11 Ill. 2d at 325 , 143 N.E.2d at 27 .

2000The Brookens court stated, “The answer lies in the oil-and-gas lease and supplemental agreement.” (Emphasis added.) Brookens, 11 Ill. 2d at 325 , 143 N.E.2d at 27 .

1990And, while the banks had the burden of proving they were bona fide purchasers, lacking notice and acting in good faith, at trial ( Erlich v. Nyberg (1979), 78 Ill.

1990And, while the banks had the burden of proving they were bona fide purchasers, lacking notice and acting in good faith, at trial (Erlich v. Nyberg (1979), 78 Ill.

1942Bank v. Reilly, [ 124 Ill. 464 ]) but where the transaction itself indicates that the use is a personal one the depository should no longer indulge such presumption as to that transaction,” and that (p. 506) “A bank may properly make payments on checks properly drawn unless the bank has some notice of an adverse claim or that the same are improperly drawn or in payment of the receiver’s personal indebtedness, otherwise there would be no safety for a bank receiving deposits of trust funds to be paid out on a checking account.

1937Bank v. Reilly, supra, [ 124 Ill. 464 ]) but where the transaction itself indicates that the use is a personal one the depository should no longer indulge such presumption as to that transaction.” And the court further said (pp. 506-7): “A bank may properly make payments on checks properly drawn unless the bank has some notice of an adverse claim or that the same are improperly drawn or in payment of the receiver’s personal indebtedness, otherwise there would be no safety for a bank receiving deposits of trust funds to be paid out on a checking account.

2022Notably, a quiet title action will only be actionable when the defendant makes “an adverse claim to an interest in the plaintiff’s property.” Id. ¶ 29 Here, there is no dispute, the bank made an adverse claim to the property at issue by claiming the Marion County mortgage was not satisfied because Schroeder’s guaranty for the WAAL Investments promissory notes remained valid and the Marion County mortgage provided for additional “secured debt” beyond the real property located in Marion County.

2017The trial court granted the motion to intervene on October 1, 2015, and, further, gave Byron and Rockford seven days to file their claims. 1 Subsequently, as noted below, Midwest asserted that, pursuant to a December 2014 forbearance agreement between it, JCI, and 1 Midwest filed its own responsive brief in this appeal. -3­ 2017 IL App (2d) 160371 Briargate, Briargate began transmitting directly to Midwest the rents on the JCI-owned properties subject to Midwest’s mortgages. ¶ 10 Second, on October 8, 2015, Byron moved to intervene, to assert an adverse claim on rents Briargate held.

1993(Lagger v. Mutual Union Loan & Building Association (1893), 146 Ill. 283, 300 , 33 N.E. 946, 950 .) Although the issue of whether this principle applies to contingent remainder holders has not yet been decided, presumably it would apply, as in the case of a warranty deed, where the holder of a contingent remainder deceives the mortgagee by pretending to have a fee simple interest.

1993(Lagger v. Mutual Union Loan & Building Association (1893), 146 Ill. 283, 300 , 33 N.E. 946, 950 .) Although the issue of whether this principle applies to contingent remainder holders has not yet been decided, presumably it would apply, as in the case of a warranty deed, where the holder of a contingent remainder deceives the mortgagee by pretending to have a fee simple interest.

1993(King v. King (1905), 215 Ill. 100, 114 , 74 N.E. 89, 94 .) Thus, where a mortgagor signs such a mortgage, representing he has a fee simple interest in the property, when in fact, he does not, if he subsequently acquires title to the property, that title enures to the mortgagee, and the mortgagor is estopped from denying the mortgage or maintaining an adverse claim.

1993(King v. King (1905), 215 Ill. 100, 114 , 74 N.E. 89, 94 .) Thus, where a mortgagor signs such a mortgage, representing he has a fee simple interest in the property, when in fact, he does not, if he subsequently acquires title to the property, that title enures to the mortgagee, and the mortgagor is estopped from denying the mortgage or maintaining an adverse claim.

1991Plaintiff cites McClellan v. Kellogg (1856), 17 Ill. 498, 504 , which held that “possession must be with such circumstances as are capable in their nature of notifying to mankind that he is upon the land.” But we note that the McClellan court deemed defendant’s actual possession of the land three years earlier the first “fact or change *** that could *** itself, possibly afford the slightest notice to the neighborhood, of any assertion of an adverse claim of title.” 17 Ill. at 504 .

1991Plaintiff cites McClellan v. Kellogg (1856), 17 Ill. 498, 504 , which held that “possession must be with such circumstances as are capable in their nature of notifying to mankind that he is upon the land.” But we note that the McClellan court deemed defendant’s actual possession of the land three years earlier the first “fact or change *** that could *** itself, possibly afford the slightest notice to the neighborhood, of any assertion of an adverse claim of title.” 17 Ill. at 504 .

1987App. 3d 319, 325 , 372 N.E.2d 1043 ) or the wilful -withholding of the evidence (Haynes v. Coca Cola Bottling Co. (1976), 39 Ill.

1987App.3d 39, 46 , 350 N.E.2d 20 ). • 6 The trial court here did not state its reasons for disregarding plaintiff's computerized chargeback sheets as evidence of defendant's debt other than to note that plaintiff had not produced the original manufacturers' notices of rejected coupons because it had "too short notice of the trial date." As such, the record does not support the conclusion that the court applied an adverse presumption against plaintiff because its excuse for nonproduction of those notices was unreasonable or because it had wilfully withheld them.

1987Moreover, the adverse presumption arising from the nonproduction of available evidence depends on the lack of a reasonable excuse for such nonproduction (Berlinger’s, Inc. v. Beef’s Finest, Inc. (1978), 57 Ill.

1987Moreover, the adverse presumption arising from the nonproduction of available evidence depends on the lack of a reasonable excuse for such nonproduction ( Berlinger's, Inc. v. Beef's Finest, Inc. (1978), 57 Ill.

1982Where an adverse presumption might arise from a party's failure to call a witness at trial, that party is entitled to explain why the witness is unable to testify. ( Warth v. Loewenstein & Sons (1905), 219 Ill. 222 , 76 N.E. 379 .) If there is a plausible explanation for a party not testifying, or if a party is not a competent witness, no unfavorable presumption is warranted. ( In re Estate of McVicker (1963), 39 Ill.

1982App.2d 389 , 188 N.E.2d 731 .) It remains, however, within the province of the trial court to determine if such a plausible explanation has been proved by credible and competent evidence. • 15 Here, there was no evidence that Mrs. Zack was not competent to testify.