Cathay Bank v. Accetturo,
2016 IL App (1st) 152783
Appellate Court of Illinois
2016 IL App (1st) 152783 No. 1-15-2783 September 30, 2016 SECOND DIVISION IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT CATHAY BANK, f/k/a NAB Bank, ) Appeal from the Circuit Court ) Of Cook County. Plaintiff-Appellee, ) ) No. 13 CH 21936 v. ) ) HELEN R. ACCETTURO; UNITED STATES ) The Honorable OF AMERICA, DEPARTMENT OF ) Daniel Patrick Brennan, TREASURY; UNKNOWN OWNERS; ) Judge Presiding. UNKNOWN TENANTS; and NONRECORD ) CLAIMANTS, ) ) Defendants ) (Helen R. Accetturo, Defendant-Appellant). )
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We find that a notice provision with an acceleration clause in a mortgage is a condition precedent and prescribes servicing requirements that a lender must comply with in order for the lender to have a right to file an action to recover possession of a secured property.
. . .
We also find that Cathay Bank failed to comply with the condition precedent in paragraph 21
of the mortgage and that Cathay Bank’s failure to give Accetturo the notice required by paragraph
21 divested the lender of its right to file this foreclosure action. Because we find that Cathay
Bank had no right to file this foreclosure action, we hold that the circuit court erroneously granted
Cathay Bank’s motion for summary judgment and abused its discretion when it entered the August
27, 2015, order approving the report of sale and distribution. Accordingly, because Cathay
Bank had no right to file this foreclosure action, we reverse the circuit court’s March 5, 2015,
order granting Cathay Bank’s motion for summary judgment and vacate all subsequent
orders because Cathay Bank must comply with the notice of acceleration clause in paragraph
21 of the mortgage before filing a foreclosure action.
. . .
¶ 57 Cathay Bank failed to give notice to Accetturo with the specific information required by
paragraph 21 of the mortgage prior to accelerating the note. Therefore, we reverse the circuit
court’s order granting summary judgment and vacate all other orders.