First Mortgage Co. v. Dina, 2014 IL App (2d) | We conclude that a material issue of fact existed concerning FMCI’s status under the License Act and that this precluded a proper grant of summary judgment.

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. [...]