Illinois Appellate Court Finds That Heir Who Has Lost Possession of Property Still May Lack Standing to Pursue Ejectment

The Bank of New York filed to foreclose on a mortgage owned by the decedent, Ruth Hatch. 

The foreclosure named her heirs as defendants. In December 2003, Jesse Hatch, the son of Ruth Hatch, filed a motion to dismiss. He claimed that he was an heir and that the Bank of New York had failed to obtain personal jurisdiction over him.

In the Jesse Hatch motion, he attached an affidavit stating that he had mailed a copy of the motion to the bank’s attorneys.  Thereafter, the bank contacted Hatch to inform him that a hearing was set for the next month and the bank would move for summary judgment, default judgment of foreclosure and sale and appointment of a foreclosure sales officer. 

Hatch filed a motion to dismiss arguing that he had not been served properly. Shortly after that, an attorney for Jesse Hatch’s brother, Elijah, filed an appearance and was granted seven days to file an answer. In any case, the court foreclosed on the property, entering summary judgment against Elijah Hatch. The court did not rule on Jesse Hatch’s motion to dismiss. Elijah Hatch was appointed administrator of Ruth’s estate.

In the meantime, the real estate was sold on July 13. On September 7, Jesse Hatch filed a motion to vacate the judgment of foreclosure and the sale; on October 15 he filed a motion requesting a hearing.

According to the record, the trial court became aware of Jesse Hatch in November 2004 when it received a letter from him postmarked September 28.  On December 16, the first purchasers resold the property to Sheila Portlock and Dewey Hall.

On February 8, 2005, the trial judge granted Jesse’s motion to vacate the judgment. The bank was found responsible for failing to disclose Jesse’s existence to the court or to make him a party defendant even though they knew of him since 2003. 

The foreclosure and sale orders were vacated. Portlock and Hall filed as intervenors arguing that they were bona fide purchasers. 

At last, Jesse Hatch was victorious because the bank had chosen not to obtain the correct jurisdiction making the entire sale void ab initio, meaning void from the start.  In addition, Portlock and Hall had constructive notice of Jesse’s interest in the property. 

However, Jesse then filed a lawsuit trying to join his brothers Elijah and Josie in an ejectment action against the first purchaser and the second purchasers of their mother’s property. The trial court denied the ejectment case and Jesse appealed. 

The court found that Jesse had no standing to bring an ejectment action because he was not by himself the rightful owner, but only an heir to the property. The ejectment action could have been brought by his brother, Elijah, who was the administrator of the estate of Ruth Hatch.  Because Elijah has not brought such an ejectment action, the appellate court affirmed the dismissal of the ejectment action.

Jesse M. Hatch v. Sheila Portlock, et al., No. 2012 IL App. (1st) 111242-U (September 13, 2013).

Kreisman Law Offices has been handling probate litigation and business litigation for more than 37 years in and around Chicago, Cook County and its surrounding areas, including Addison, Chicago (Calumet Heights, Canaryville, Andersonville), LaGrange, Libertyville, Oak Forest, Schaumburg, Villa Park and Wilmette, Ill.

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