Illinois Official Reports
Appellate Court
First Mortgage Co. v. Dina, 2014 IL App (2d) 130567
Appellate Court
Caption
FIRST MORTGAGE COMPANY, LLC, Plaintiff-Appellee, v.
DANIEL DINA and GRATZIELA DINA, Defendants-Appellants
(Unknown Owners and Nonrecord Claimants, Defendants).
District & No. Second District
Docket No. 2-13-0567
Filed
Modified upon
denial of rehearing
March 31, 2014
May 22, 2014
Held
(Note: This syllabus
constitutes no part of the
opinion of the court but
has been prepared by the
Reporter of Decisions
for the convenience of
the reader.)
The summary judgment for foreclosure entered for plaintiff mortgagee
and the order confirming the sale of defendants’ property were
vacated where plaintiff was not a licensed lender under the Residential
Mortgage License Act, and the mortgage was therefore unenforceable
and void as a matter of public policy.
Decision Under
Review
Appeal from the Circuit Court of Lake County, No. 10-CH-2877; the
Hon. Luis A. Berrones, Judge, presiding.
Judgment Vacated and remanded.
EXCERPT:
¶ 13 A court should grant summary judgment only “when the pleadings, depositions and
affidavits on file demonstrate that no genuine issue of material fact exists, and that the
moving party is entitled to judgment as a matter of law.” Forest Preserve District v. First
National Bank of Franklin Park, 2011 IL 110759, ¶ 62. Review of an order granting summary
judgment is de novo. Forest Preserve District, 2011 IL 110759, ¶ 62. Here, defendants are
correct in their License Act claim; that conclusion is determinative, so we need not consider
defendants’ other claims. A question of fact exists as to the mortgage lender’s License Act
status. Further, that fact is material. Although the issue of enforceability of a mortgage made
by an entity lacking a needed license has not arisen in Illinois, Illinois law relating to other
licenses and sister-state law concerning statutes analogous to the License Act make clear that
a License Act violation results in an unenforceable contract. Finally, because the contract
would be void as a matter of public policy, any technical flaw in the way defendants raised
the defense did not result in forfeiture of the defense.
[…]
N.J. has such a law which prevents plaintiff/servicer/bank from using the courts if they don’t comply,N.J.S.A.14A:13-11, by obtaining a certificate to do business, N.J.S.A.14A:13-3. Previously, such laws were held to be unconstitutional, but the court worked on the statues to make it constitutionally acceptable. Interstate commerce clause and the supremacy clause were the issues that were corrected. In N.J., (modified)First Family Corp. of Florida v. Durham 108 N.J. 277(1987) is the case. Without the certificate/authority, the court has no jurisdiction ???? Secretary of State(N.J.) has the info on certificate. Check it out.