Did You Know: Illinois Charges an Unconstitutional Premium Foreclosure Fee to Homeowners Filing in Circuit Courts?

LIT EXTRACT:

SUMMARY OF THE UNCONSTITUTIONAL FORECLOSURE PREMIUM FEE CASE

Plaintiffs-Appellees Reuben Walker and Steven Diamond filed a class action complaint challenging the constitutionality of the $50 fee for filing residential mortgage foreclosure complaints in circuit courts. See 735 ILCS 5/15-1504.1(a) (2018).

On cross-motions for summary judgment, the circuit court held that the fee, as well as the programs funded by it, see 20 ILCS 3805/7.30, 7.31 (2018), were unconstitutional under the Free Access, Due Process, Uniformity, and Equal Protection Clauses of the Illinois Constitution.

Defendant-Appellant Andrea Lynn Chasteen, in her official capacity as the Clerk of the Circuit Court of Will County, and Intervenors-Defendants-Appellants People of the State of Illinois ex rel. Kwame Raoul (“State”) and Dorothy Brown, in her official capacity as Clerk of the Circuit Court of Cook County (“Cook County”), appealed the circuit court’s order directly to this Court.

The circuit court granted plaintiffs’ motion for summary judgment on counts II and III, however, holding that the foreclosure fee violated the Illinois Constitution’s Free Access, Due Process, Uniformity, and Equal Protection Clauses.

The court noted that the Free Access Clause prohibits filing fees from being used for purposes unrelated to court operations, and found that, although the Foreclosure Prevention Program “might benefit the court system,” its benefits were “indirect at best.”

Describing the Abandoned Property Fund as “a litigation-tax funded neighborhood beautification plan,” the court also concluded that it was too remote from court operations.

For the same reasons, the circuit court held that the fees violated due process and equal protection principles.

As to the Uniformity Clause, the court ruled that there was “no real and substantial difference between plaintiffs seeking access to the court system in mortgage foreclosure cases, and those seeking access to the courts in non-foreclosure cases,” and the foreclosure fee did not “bear a reasonable relationship to the purpose of the tax”

Finally, the circuit court found that the statute imposing the foreclosure fee, 735 ILCS 5/15-1504.1 (2018), was not severable from the provisions of the Illinois Housing Development Act establishing the Foreclosure Prevention. Program and the Abandoned Property Fund, 20 ILCS 3805/7.30, 7.31 (2018), entered a permanent injunction prohibiting the collection of foreclosure fees throughout the State, and immediately stayed that permanent injunction to provide this Court with an opportunity to review its decision.

The court declined to enter final judgment, however, because issues remained pending, “such as [p]laintiffs’ request for the return of collected fees.”

On May 14, 2020, the circuit court found that there was “no just reason for delaying either enforcement or appeal” of its March 2, 2020 order under Illinois Supreme Court Rule 304(a). The State, Cook County, and Will County each appealed that order directly to this Court and this Court consolidated all three appeals.

Reuben D. Walker et al., etc., Appellees, v. Andrea Lynn Chasteen, etc., Appellant (People State of Illinois ex rel. Kwame Raoul, etc., et al., Intervenor-Appellants)

Case No. 126086, 126087, 126088, cons.

Brief for Cook County defending $50 foreclosure fee premium as constitutional

FILED: DEC. 9, 2020

Reply Brief for Class Action Plaintiffs arguing $50 foreclosure fee premium as UNconstitutional

FILED: FEB 17, 2021

REPLY Brief for Cook County defending $50 foreclosure fee premium as constitutional

FILED: MARCH 3, 2021