Recent Appellate Wins
Heavner, Beyers & Mihlar has had several recent, significant wins on behalf of its clients. Specifically, the firm successfully handled an action in which an Estate moved to bar all claims by a bank/mortgage holder based on the two-year limitations period set forth in Section 18-12(b) of the Probate Act and additionally sought a release of mortgage. The loan at issue was current and it remained current after the borrower’s death. The Plaintiff bank had not instituted a foreclosure suit within two years of the death of the mortgagor and had not filed a claim since no probate estate was opened. After the Estate was finally open, the Estate moved to bar all claims by the bank based on the two-year limitations period set forth in 18-12(b) of the Probate Act. The trial court granted the Estate’s motion, finding any claim the bank had against the property was time barred and ordered the bank to issue a release of mortgage. The bank then appealed (with HBM as counsel) and argued that the provisions of the Probate Act do not operate to extinguish the bank’s secured lien.
The Appellate Court ruled that because a timely claim was not filed against the Estate, the bank was prevented from reaching Estate assets to satisfy the debt, but specifcially noted that the bank was not precluded from foreclosing its mortgage. The Appellate Court also held that the trial court erred in compelling the Bank to issue a relase of its mortgage and remanded the action so the recording of the release could be rescinded and the public records corrected. In re: Estate of Topal, 2022 Il App (4th) 210613